Moulali and Others vs The State of Karnataka

Budihal R.B., J.—This is a petition filed by the petitioners/accused Nos. 1 and 2 under Section 439 of the Code of Criminal Procedure seeking their release on bail of the alleged offences punishable under Sections 392 and 376 of the Indian Penal Code and Section 41(d) of Cr.P.C. registered in respondent police station crime No. 147/2014.

The brief facts of the prosecution case are that on 27.09.2014, the complainant and her husband went to Belagalpete village to see the health condition of the complainant''s uncle and unfortunately complainant''s uncle died on the same day and after completion of funeral ceremony, complainant and her husband were returning to their village on 28.09.2014 by way of Gundur, Lekkikoppa, Konnankere. In the meanwhile, on the way near the village of complainant, her husband had gone for answering nature call and at that time, two persons came there and dragged the complainant inside the forest and one person out of them shown the knife to the complainant and another one gave life threat to the complainant and insisted her to give the gold chain otherwise he would not leave her. Hence, she gave the golden ornaments to them. After that they went on their vehicle and the complainant and her husband came to their village and on the advice of their son, they lodged the complaint on 29.08.2014. On the basis of the said complaint, firstly, a case was registered against two unknown persons and during the course of investigation, the present petitions have been arrayed as accused Nos. 1 and 2.

Heard the learned counsel for the petitioners/accused Nos. 1 and 2 and the learned Government Pleader for the respondent-State.

Counsel for the petitioners made the submission that the complaint is against two unknown persons and there are no witnesses to the alleged incident and the petitioners have been falsely implicated in this case. Learned counsel also made the submission that firstly there was no alleged offence under Section 376 of IPC and it was only under Section 392 of IPC and subsequently, that too after a lapse of 50 days, as per the further statement of the complainant and her husband, the alleged offence under Section 376 of IPC is also inserted in the case. Learned counsel further made the submission that with regard to the recovery of the gold ornaments and test identification parade said to have been conducted by the investigating officer during investigation, they do not corroborate and do not establish the identity of the gold ornaments and so also the identity of the petitioners/accused Nos. 1 and 2 as the real culprits. Hence, the counsel made the submission that the petitioners are innocent and are not involved in commission of any offences and that by imposing reasonable conditions petitioners may be enlarged on bail.

Per contra, learned Government Pleader made the submission that though at the first instance, the alleged offence under Section 376 of IPC was not made out as per the complaint averments, but in the further statement, the complainant and her husband have properly explained why it was not mentioned in the complaint and, therefore, the delay would not come in the way of taking into consideration the alleged offence under Section 376 of IPC. Learned Government Pleader also made the submission that from the recovery of gold ornaments belonging to the complainant, they are identified by the complainant and her husband in the police station. She also made the submission that the test identification parade was conducted and in the test identification parade, the complainant and her husband both correctly identified the petitioners that they were the persons who committed the alleged offence against them. Hence, she made the submission that the materials produced, prima facie, go to establish the involvement of the present petitioners in the alleged offence. Regarding the medical evidence learned Government Pleader fairly submitted that the medical records are not there as there was such a delay. Hence, she submitted to reject the bail petition.

I have perused the grounds urged in the bail petition, FIR, complaint and all other materials produced in the case along with the petition.

Looking to the complaint averments, it goes to show that the alleged offence has taken place on 28.09.2014 and the complaint was firstly lodged on 29.09.2014 i.e. on the very next day of the alleged incident. Perusing the complaint averments, it is simply stated that when the complainant and her husband, after attending the funeral ceremony of their relative and when they were going back on the two-wheeler to their village, the complainant''s husband stopped the vehicle and had gone to attend the nature call and the complainant was standing by the side of the vehicle and at that time two persons came and they threatened her to give the gold ornaments otherwise they would not leave her and they dragged her towards the forest and after seeing the same, the husband of the complainant also came there and the accused shown the knife to him also and because of fear the complainant gave the gold ornaments to the said persons. Then they came back to their village and as per the say of their son, they lodged the complaint. Except this, there is no whisper or averments in the original complaint about the alleged act of rape/sexual intercourse on the complainant by the said persons. But, during the course of investigation, the investigating officer recorded the further statement of the complainant which was on 18.11.2014, nearly after one month and 20 days, wherein she has whispered for the first time that on that day, those persons committed sexual intercourse on her. So also, the further statement of the husband of the complainant was also recorded on 20.11.2014 and he has also whispered about the alleged act of rape on his wife. As submitted by the learned Government Pleader there are no medical records produced to evidence the said fact. Therefore, the materials on record, prima facie, go to show that the two unknown persons came and they robbed the gold ornaments of the complainant. So, the materials go to show the commission of the alleged offence under Section 392 of IPC. With regard to the said aspect of the matter, the present petitioners have contended that they are innocent and have not committed the alleged offences and they have been falsely implicated in the case. The petitioners have also undertaken that they are ready to abide by any conditions that would be imposed by this Court. Now the investigation of the case is already completed and the charge sheet has been filed in the matter. As already observed, about the alleged offence under Section 376 of IPC, at this stage, I am of the opinion that in view of the materials placed on record and the delay of nearly 50 days in collecting such material by the Investigating Officer, it is a matter to prove the same after the evidence is recorded during the course of trial. Sofar as the alleged offence under Section 392 of IPC is concerned and in view of the grounds urged in the bail petition, the alleged offence is triable by the Magistrate Court and is not exclusively punishable with death or imprisonment for life. Hence, by imposing reasonable conditions, petitioners can be admitted to bail.

Accordingly, petition is allowed. Petitioners are ordered to be released on bail of the alleged offences registered in Crime No. 147/2014 in the Bankapura Police Station, Shiggaon Circle, Haven, subject to the following conditions.

"i) Each of the petitioners to execute personal bond for a sum of Rs. 50,000/- with one solvent surety for the likesum to the satisfaction of the concerned Court.

ii) Petitioners shall not tamper with any of the prosecution witness directly or indirectly.

iii) They have to appear before the concerned Court regularly."