Mahadevappa vs The State

Rathnakala, J.—This petition is filed u/s 438 of Cr. P.C., seeking anticipatory bail in Crime No. 15/2014 of Wadigere Police Station for the offences punishable under Sections 143, 147, 323, 342, 354, 376, 498A, 504, 506 r/w Section 149 of IPC.

The petitioners are arrayed as accused Nos. 1 to 6 in the F.I.R. The gist of the prosecution is that ''the complainant Mallamma had visited the house of her sister Gangamma wife of Mallareddy/petitioner No. 2 on 15.2.2014 both ladies slept in the house; accused No. 2 who had gone out side returned home at 1:00 a.m. of 16.02.2014 in a drunken state and took his wife outside. The complainant noticed that couple were quarreling with each other out side the house: the nephew of accused No. 2 i.e., accused No. 1 came inside bolted the door from inside put threat to the life of the complainant assaulted her and had forcible intercourse with her. The complainant collapsed: when she woke up again accused No. 1 assaulted her and had forceful intercourse with her: and assaulted her again. Since she was shouting she was assaulted. In the morning the accused No. 1 opened the door and went away. The complainant came outside and saw that her sister/Gangamma was tied with a rope to a wooden stump. The complainant released her and informed her as to what transpired to her in the last night. Thereafter the sisters informed the matter to their cousin Mallappa: all the three of them decided to lodge complaint to the police and were waiting near bus stand to go over to Wadigere police station, by that time all the six accused persons came to the bus stand, accused No. 2 slapped the sister of the complainant, accused No. 1 assaulted the complainant and dragged her by holding her saree, the other accused abused filthily and assaulted her. The cousin/Mallappa pacified the matter and took Gangavva for treatment to Yadgir Government Hospital.

Sri. Ganesh Naik, learned counsel for the petitioners submit that "the provision of Section 376 of IPC is not attracted against the petitioners 2 to 6. There is no allegation against any of the accused in respect of 498A of IPC. The complaint is lodged only to harass the petitioners."

Sri. Sanjay A. Patil, learned Additional S.P.P., opposes the petition.

Having regard to the nature of the offence attributed to petitioners 3 to 6 and also in the background of their social setup, there is no impediment to grant anticipatory bail to petitioners 3 to 6. As regards the role of petitioner No. 1 is concerned, the allegation is to the effect that while 2nd petitioner took his wife Gangamma outside the house accused No. 1 entered the house and committed rape on the complainant. By his overt act he is inflicted physical cruelty on his wife. That is suggestive of connivance of 2nd petitioner with accused No. 1. With regards the petitioner No. 1 is concerned, since the offence alleged under the 376 of I.P.C., punishable upto life imprisonment he does not deserve relief under 438 of Cr. P.C.

In view of the above the petition is partly allowed. Petitioner Nos. 3 to 6 are granted anticipatory bail for a period of 20 days, in Crime No. 15/2014 of Wadigere Police Station, Tq: Shahapur, subject to the following conditions.

i) Petitioner Nos. 3, 4, 5 shall immediately after obtaining certified copy of this order shall appear before the Investigating Officer in the event of their arrest they shall be enlarged on bail on executing self Bond for a sum of Rs. 50,000/- each with one surety for the likesum;

ii) In the event of arrest of petitioner No. 6 by the Investigating Officer in the above said crime number she shall be enlarged on bail on executing a self Bond for a sum of Rs. 50,000/- with one surety for the likesum;

iii) Petitioner No. 2 shall surrender before the jurisdictional Magistrate Court and move for regular bail;

iv) Petition is dismissed in respect of petitioner No. 1.