- 1 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO. 102997 OF 2024 (439(CR.PC)/483(BNSS)) BETWEEN: NAGARAJ S/O. HANUMANTHA VANKALKUNTI, AGE: 20 YEARS, R/O. NAGARAL VILLAGE, TQ. KUSHTAGI, DIST. KOPPAL – 583 277. … PETITIONER (BY SRI RAJA RAGHAVENDRA V. NAIK, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, THROUGH KUSHTAGI POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD - 580 001. 2. SMT. VIJAYLAKSHMI, W/O. RAMESH TALVAR, AGE: 38 YEARS, OCC. LABOUR, R/O. NAGARAL VILLAGE, TQ. KUSHTAGI, DIST. KOPPAL – 583 277. … RESPONDENTS (BY SRI JAIRAM SIDDI, HCGP FOR R1; R2-NOTICE SERVED) THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., PRAYING TO GRANT REGULAR BAIL TO THE PETITIONER/ACCUSED NO.1 IN CRIME NO.61/2024 REGISTERED BY KUSHTAGI POLICE STATION FOR THE OFFENCES PUNISHABLE UNDER SECTION 363, 376(2) (N) OF IPC AND SECTION 6 OF POCSO ACT PENDING ON THE FILE OF SPL.SC POCSO NO.35/2024 LEARNED ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1 AT KOPPAL IN THE INTEREST OF JUSTICE. MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.17 14:20:20 +0530 - 2 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.01.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE FOLLOWING: CAV ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 439 of Criminal Procedure Code (‘CrPC’ for short) for grant of regular bail in Crime no.61/2024 by Kushtagi Police Station for offences punishable under Sections 363, 376 (2) (n) of Indian Penal Code (for short, ‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) pending in SPL.SC POCSO no.35/2024 on file of Addl. District and Sessions Judge, FTSC-1, Koppal. 2. Sri Raja Raghavendra V. Naik, learned counsel for petitioner as per prosecution, at 6.30 p.m. on 27.04.2024, a complaint was filed by Smt.Vijaylakshmi stating that there was wedding of one of their villagers at Jarakunti on 22.04.2024 and that her daughter Bhagyalakshmi aged about 16 years had accompanied Hanumant Gumageri and others to attend same, but had not returned. She was unable to trace her despite searching in neighborhood and enquiring with relatives till filing of complaint. She suspected that her daughter was kidnapped - 3 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 by Nagaraj S/o Hanumant Vankalkunti with ulterior motive. Said complaint was registered as Crime no.61/2024 for offence under Section 363 of IPC showing petitioner herein as accused. 3. It was submitted, during course of investigation, Investigating Officer (‘IO' for short) secured victim and recorded her statement under Section 161 of CrPC on 28.04.2024, wherein she stated, while studying SSLC at school in Kushtagi, petitioner used to follow her by stating that he was in love with her and asking her to reciprocate. And at 3:00 p.m. on 22.04.2024, when she was standing near Canara Bank at Kushtagi, after attending wedding at Jarakunti, petitioner approached her on motorcycle and asked her to accompany him for talking. Thereafter, he took her on Kushtagi – Hosapete Highway. When she enquired about destination, petitioner scolded her and asked her to sit quiet. He straightaway took her to house of his acquaintance at Nagarabhavi, Bengaluru. Next day at 11:30 p.m., when they were about to sleep, petitioner told her that he would marry her and take good care of her and had sexual intercourse with her. And from 23.04.2024 to 27.04.2024, he had repeated sexual intercourse with her about 6 to 7 times. And on 28.04.2024, they came - 4 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 back to village. When he had stopped near NH Cross, she managed to slip away to go to police station for registering complaint. 4. It was submitted, though in her statement recorded under Section 164 of CrPC, she stated that on 22.04.2024 when she was standing near Canara Bank at Kushtagi at 3:00 p.m., petitioner – son of her relative Hanumantappa of same village came there and asked her to go with him as he had to talk to her. Thereafter, when she asked where she was taking her, he scolded her and took her to shed belonging to his friend near Nagarabhavi, Bengaluru. On 23.04.2024 at 11:00 p.m., when he approached her for having sex, which she refused. But he had sexual intercourse by stating that he would marry her and take good care of her. And until 27.04.2024, had sex with her for 6 to 7 times. On 28.04.2024, they came back and near Kushtagi, she managed to slip away, approach police and file complaint. 5. It was submitted above material would reveal that there was no specific allegation about use of threat, force or violence against victim. Same is also corroborated by no injuries mentioned in Medical Examination report. It was - 5 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 submitted, petitioner was arrested on 29.04.2024 and was in custody since then. In meanwhile, investigation was completed and charge-sheet filed on 20.06.2024. He was aged 20 years and in case he was not released on bail, he would come in contact with hard-core criminals, which would affect his future. It was submitted, prosecution had cited 24 witnesses and conclusion of trial was in all likelihood to be delayed. It was submitted, there were no criminal antecedents against petitioner. He had both movable and immovable properties and was unlikely to flee justice. He also undertook to abide by any conditions for grant of bail. 6. Sri Jairam Siddi, learned HCGP for respondent no.1 - State opposed petition. At outset, it was submitted learned District Judge had rejected petitioner’s bail petition by observing age of victim as 15 years 2 months and 23 days by referring to her birth certificate. Thus, victim was minor, when petitioner took her from home and had sexual intercourse with her. 7. Absence of protest cannot be taken as consent and in any case, Hon'ble Supreme Court in case of Independent Thought v. Union of India, reported in 2017 (10) SCC 800 - 6 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 had held, consent of victim would be irrelevant when victim was below 18 years of age insofar as offences under POCSO Act. It was further submitted, after completion of investigation, prosecution had filed charge-sheet alleging commission of several heinous offences. When matter was awaiting commencement of trial, if petitioner were to be enlarged on bail, there was every likelihood of attempt to tamper witnesses. Therefore, this was not a fit case for grant of bail. 8. Heard learned counsel and perused material on record. 9. From above, point that arises for consideration is: “Whether petitioner is entitled for bail with conditions?” 10. This is a petition for regular bail by petitioner - sole accused in Crime no.61/2024 for offences under Sections 363, 376 (2) (n) of IPC and Section 6 of POCSO. 11. While considering application for bail in cases involving offences under POCSO Act, Hon’ble High Court of Delhi in case of Dharmendra Singh v. The State (Govt of - 7 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 NCT Delhi) reported in 2020 SCC Online Delhi 1267, identified several factors as follows: “77. Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post- charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused: a. the age of the minor victim : the younger the victim, the more heinous the offence alleged; b. the age of the accused : the older the accused, the more heinous the offence alleged; c. the comparative age of the victim and the accused : the more their age difference, the more the element of perversion in the offence alleged; d. the familial relationship, if any, between the victim and the accused : the closer such relationship, the more odious the offence alleged; e. whether the offence alleged involved threat, intimidation, violence and/or brutality; f. the conduct of the accused after the offence, as alleged; g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise; h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail : the - 8 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 more the access, greater the reservation in granting bail; i. the comparative social standing of the victim and the accused : this would give insight into whether the accused is in a dominating position to subvert the trial; j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence : an innocent, though unholy, physical alliance may be looked at with less severity; k. whether it appears there was tacit approval-in- fact, though not consent-in-law, for the offence alleged; l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise; m. other similar real-life considerations.” (emphasis in original) 12. On a prima facie analysis of material available, age of petitioner was 20 years, while that of victim was 15 years and two months. Petitioner is unmarried. In her statement recorded under Section 164 CrPC, victim stated, when she asked petitioner, where he was taking her, she was scolded and asked to keep quiet. Thereafter at Bengaluru, when petitioner approached her for sex on 23.04.2024, at 11.00 p.m. she refused, but petitioner on pretext of marrying her, had sexual intercourse with her, which was repeated 6 to 7 times upto 27.04.2024. - 9 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 13. Absence of specific assertion about victim being held against her wishes and medical examination report not showing use of force or violence, would favour petitioner. Absence of criminal antecedents and proceedings being at stage of awaiting commencement of trial, with prosecution citing 24 witnesses, would favour petitioner as per Deshraj v. State of Rajasthan reported in 2024 SCC OnLine SC 2709. 14. But fact that as against petitioner’s age at 20 years, age of victim is only 15 years and two months. Moreover, Petitioner and victim are from same village and related, which would be a serious aggravating factor. Apart from above, victim has stated about being scolded by Petitioner when she asked him where he was taking her. And that she had also refused sex when petitioner approached her on night of 23.04.2024, thereafter petitioner told her that he would marry her and had sexual intercourse with her. Considering tender age of victim and Petitioner being relative, would indicate him being in position of domination. Victim has also stated that when they reached Kushtagi, she sneaked away from him, approached police and gave complaint, would indicate post incident conduct against inferring consent. - 10 - NC: 2025:KHC-D:647 CRL.P No. 102997 of 2024 15. Even submission that as per victim, petitioner had sexual intercourse with her at Bengaluru, but no panchanama drawn at said place, would be on merits and cannot be considered stage of bail. Indeed until convicted, there would be presumption of innocence, but factors stated above weigh against grant of bail. Point for consideration is answered in negative. Hence following: ORDER Petition is dismissed. SD/- (RAVI V.HOSMANI) JUDGE GRD,CLK CT:PA LIST NO.: 1 SL NO.: 50