- 1 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.103810 OF 2024 [439(CR.PC)/483(BNSS)] BETWEEN: VIJAYA KUMAR @ VIJAY S/O. GUPPALAR MARAPPA, AGE: 22 YEARS, OCC. DRIVER, R/O. JOGIKALLU VILLAGE, SANDUR TQ., BALLARI DIST.-583119. … PETITIONER (BY SRI ANWAR BASHA B., ADVOCATE) AND: 1. THE STATE OF KARNATAKA (THROUGH CHORANURU P.S.) REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, AT DHARWAD-580001. 2. MARESHA S/O. CHINNAPPA, AGE: 37 YEARS, OCC. LABOURER, R/O. JOGIKALLU VILLAGE, SANDUR TQ., BALLARI DIST. -583119. … RESPONDENTS (BY SRI JAIRAM SIDDI, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. (483 OF BNSS), SEEKING TO ALLOW THIS PETITION AND ENLARGE THE PETITIONER ON BAIL IN SPL.CASE NO.743/2024 IN CONNECTION WITH (CRIME NO.60/2024) REGISTERED IN CHORNUR) PS PUNISHABLE U/S. 366, 376(3), 376(N) OF IPC AND 4 AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012 PENDING TRIAL OF THE CASE, BEFORE THE ADDL. DIST. AND SESSIONS JUDGE F.T.S.C.-I, BALLARI. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.13 14:37:59 +0530 - 2 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) for grant of regular bail in Crime no.60/2024 by Choranuru Police Station, Sandur Circle of Ballari district for offences punishable under Sections 366, 376 (3) and 376 (2)(n) of Indian Penal Code (for short, ‘IPC’) and for offences under Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) by accused no.1 (petitioner). 2. Sri B. Anwar Basha leaned counsel for petitioner submitted, case of prosecution was based on complaint filed by victim on 11.05.2024 stating that petitioner was her neighbor, had expressed his love for her and intention to marry her, but victim had refused. On 20.01.2024 and again on 05.02.2024, when she went to attend nature’s call, petitioner forcibly took her to a desolated place between rocks and raped her. Thereafter he threatened her against for revealing same to anyone. On 04.05.2024, when her family members were asleep, petitioner took her on his tractor to his aunt’s house at - 3 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 Ankamanal village and there also had forcible sexual intercourse with her on promise of marriage. Thereafter he began refusing to marry her, brought her back to village at 8:00 a.m. She came back and narrated incident before parents and after discussion amongst family and village elders, complaint was lodged on 11.05.2024. Based on complaint Crime no.60/2024 was registered. 3. It was submitted as per school records, date of birth of victim was 10.08.2008 and as on date of first incident her age would be more than 17 years. It was submitted lodging of complaint four months after first incident would indicate that allegation of sexual assault was an afterthought. It was submitted, petitioner aged 22 years was working as driver and was a permanent resident of same village. Petitioner and victim were known to each other and were in love. Therefore incidents as alleged were consensual. It was submitted, though in her statement before police recorded under Section 161 of Cr.PC on 11.05.2024, she had alleged that petitioner had committed rape on her, in her statement recorded under Section 164 of Cr.PC on 06.06.2024, she acknowledged petitioner’s love for her. She had also admitted to have accompanied him to - 4 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 Ankamanal village, which would be indicative of consent. It was further submitted, medical examination report of victim did not reveal any injuries. Therefore there was no use of physical forcible or violence. It was submitted, petitioner was in custody since 11.05.2024 and charge sheet was filed after completion of investigation on 06.07.2024. It was submitted petitioner was permanent resident of Jogikallu village, having old aged parents and who were dependent on him. Therefore sought for grant of bail. 4. Sri Jairam Siddi, learned High Court Government Pleader on other hand opposed petition. At outset it was submitted, petitioner was alleged to have committed offences under Section 366, 376(3) and 376 (2) (n) of IPC read with Sections 4 and 6 of POCSO. It was submitted as per school records, age of victim as on date of incident was below 18 years. Though there was delay in lodging complaint, there was sufficient explanation that she was under threat of petitioner. It was submitted victim had supported prosecution case in her statements recorded under Section 161 as well as under Section 164 of Cr.PC and medical examination report would indicate rupture of hymen thereby suggest sexual assault. It - 5 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 was submitted, fact that petitioner and victim were neighbours, there would be every-likelihood of petitioner intimidating or attempting to tamper with prosecution witnesses. On said ground opposed petition. 5. Heard learned counsel and perused material available on record. 6. From above, point that would arise for consideration is: “Whether petitioner is entitled for grant of regular bail on condition? 7. This petition is for regular bail by accused in Crime no.60/2024 for offences punishable under Sections 366, 376 (3) and 376 (2) (n) of IPC. For offence under Section 376 (2) (n) and 376 (3) of IPC would be punishable with imprisonment in excess of 10 years. While, offence under Section 366 of IPC was punishable with imprisonment up to 10 years, offences under Sections 376 (2) (n) and 376 (3) of IPC and Sections 4 and 6 of POCSO would be punishable with imprisonment in excess of 10 years. - 6 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 8. Since petitioner is facing allegations for committing offences under POCSO, it would be appropriate to refer to decision of High Court of Delhi in case of Dharmender Singh Vs. State (Government of NCT of Delhi) reported in 2020 SCC OnLine Del 1267 wherein it identified various factors which could be taken for consideration while examining claim for bail in cases involving under POCSO: “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; - 7 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 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 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; - 8 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 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.” 9. Applying same, it is seen that age of petitioner is 22 years while that of victim would be little over 17 years, which would not indicate any case of grave perversion. Though there is no familial relationship between petitioner and victim, they are stated to be neighbors. Petitioner is alleged to have threatened victim against revealing incident to anyone else. There is also allegation about commission of sexual assault under promise of marriage. Though conduct of petitioner refusing to marry victim after alleged incident would appear to be an aggravating fact, fact that complaint was filed four months after first incident and about 6 days after last incident of petitioner taking victim to his aunt’s house and statement of victim about accompanying petitioner, at night without informing her parents and family members would prima facie suggest tacit approval-in-fact. 10. It is also seen that there is no involvement of anyone else and this is not a case of group sexual assault. - 9 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 Though concerns of prosecution about possibility of tampering with prosecution witnesses as petitioner and victim are neighbors appears to bear some substance, same could be addressed by imposing appropriate conditions. Point for consideration is answered in affirmative. Consequently following: ORDER Petition is allowed. Petitioner - accused no.1 is ordered to be enlarged on bail in Spl.Case no.743/2024 on file of Additional District and Sessions Judge, F.T.S.C.-I, Ballari (In Crime no.60/2024 of Choranuru Police Station) for offences punishable under Sections 366, 376 (3) and 376 (2) (n) of IPC, subject to following conditions: a) Petitioner – accused no.1 shall execute a personal bond in a sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of trial Court. b) He shall not attempt to contact, threaten or induce victim or any other prosecution witnesses either directly or indirectly. c) He shall be regular in attending Court proceedings. - 10 - NC: 2025:KHC-D:2765 CRL.P No. 103810 of 2024 d) He shall not enter Jogikallu village, until conclusion of trial. e) He shall forthwith inform any change of residence to Investigating Officer. f) It is clarified that views expressed are prima facie and shall not influence final outcome after trial. SD/- (RAVI V.HOSMANI) JUDGE EM CT:PA LIST NO.: 1 SL NO.: 4