Arunkumar vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Senior Advocate Shri C.H. Jadhav appearing for the learned counsel for the petitioner and the learned Government Pleader.

The petitioner is accused No. 1 and is alleged of offences punishable under Sections 342, 323, 376D of the Indian Penal Code, 1860. It is alleged by the complainant one Sahira Sheikh that she was a sales girl and after her work, she was waiting for an auto rickshaw near Shanthala Silk House, when a car came by with two persons in it and they had asked her, if she wanted a lift in the car and she readily agreed to be dropped of at Vijayanagar and had got into the car. It transpires that she realized that she was being taken elsewhere and when she questioned the men in the car as to where they were going, the man in the passenger seat is said to have struck her and asked her to keep quite and that he would harm her if she raised an alarm or create any kind of trouble and thereafter they are said to have driven towards Thippagondanahalli. She is said to have been taken to a farm house and there was a third person present. All of them committed rape on her inspite of her protests and the persons who had brought her in the car had left and the person who was in the farm house had momentarily left her alone and she had managed to escape and came to Tavarekere and took treatment at a hospital known as "Amma Hospital". She had then informed the jurisdictional police and lodged a complaint.

It is on further investigation on the basis of information provided by the complainant that accused No. 3 was taken into custody. Accused No. 3 was said to be a servant working at the farm house where she was raped and on his information accused Nos. 1 and 2 were also taken into custody. It then transpires that there was a test identification parade conducted on 5/9/2014. Where accused No. 1 was paraded, it is significant that the complainant failed to identify him and inspite of which, the petitioner who is accused No. 1 has been detained in custody. His application for bail has been rejected by the court below, having regard to the manner in which the offence has been committed and the fact that the colour of the car in which she was said to have been taken to the farm house, tallied with the car which belonged to the father of the petitioner.

The learned Senior Advocate would submit that the fact that the petitioner was allegedly in the company of the complainant for several hours and had committed rape at the farm house, therefore it is odd that he was not recognized in the test identification parade. There is yet another aspect namely, that the present petitioner, Arunkumar, and the owner of the farm house where the offence is said to have been committed is also Arunkumar, and it is sought to be alleged that petitioner''s father his a highly placed official who belonged to a particular political party and the owner of the farm house belonged to another political party and taking advantage of the similarity in the name of these persons, the present petitioner is sought to be implicated.

However, this second contention is not tenable. The first circumstance that the complainant failed to identify the petitioner at the test identification parade, is indeed a circumstance which would indicate that there is serious doubt of his involvement. The coincidence that the car in which the complainant is said to have been taken to Thippagondanahalli was a silver coloured car, is also to be established at the trial. If the complainant was picked up at 8 p.m. and there could be a mistake in mentioning the colour of the car as these details would not be readily observed when in a situation that she was taking lift in the car and therefore given the circumstances that the accused has not been identified by the complainant at the test identification parade, there is ground to enlarge the petitioner on bail subject to the following conditions:--

"(i) That the petitioner shall execute a self bond for a sum of Rs. 1,00,000/-, with a surety, for a like sum, to the satisfaction of the Court below;

(ii) The petitioner shall not directly or indirectly seek to influence the prosecution witnesses;

(iii) He shall appear before the Investigation officer as and when required and shall co-operate with the Investigating Officer; and

(iv) The petitioner shall attend the Court regularly."