Karnataka High Court
Sri. Waseem Mohammed vs State Of Karnataka on 21 November, 2024
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2024:KHC:47421-DB
CRL.A No. 222 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 222 OF 2020 (C)
BETWEEN:
SRI. WASEEM MOHAMMED
@ WASEEM AHMED,
S/O. ASEEF AHMED,
AGED ABOUT 27 YEARS,
DUBAI LAYOUT, NEAR AMBEDKAR SCHOOL,
CHURCH CROSS, DEVARA JEEVANAHALLI,
BENGALURU-560 045.
...APPELLANT
(BY SRI. VEERANNA .G TIGADI, ADVOCATE)
AND:
Digitally signed 1. STATE OF KARNATAKA,
by SUMATHY REP. BY SUB-INSPECTOR OF POLICE,
KANNAN HENNUR POLICE STATION,
Location: High REP. BY STATE PUBLIC PROSECUTOR,
Court of HIGH COURT OF KARNATAKA,
Karnataka BENGALURU.
2. MR. MOHAMED SADIQ,
S/O. KAMAL MUKTHIYAR,
R/O 3RD CROSS, TELECOM LAYOUT ROAD,
JAYARAM COMPOUND NEAR BRIGHT SCHOOL,
ASHWATH NAGAR,
BENGALURU-560 094.
AMENDED AS PER ORDER DATED 05.07.2023.
...RESPONDENTS
-2-
NC: 2024:KHC:47421-DB
CRL.A No. 222 of 2020
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II FOR R1,
SRI. V.S. VINAYAKA, ADVOCATE FOR R2(V/C/O DTD:
18.07.2024 APPOINTED AS AMICUS CURIAE))
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 23.08.2019
AND ORDER OF SENTENCE DATED 27.08.2019, PASSED BY THE
LIII ADDITIONAL CITY CIVIL AND SESSIONS SPECIAL JUDGE,
BENGALURU IN SPL.C.C.NO.183/2013, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
341,376(2)(f),323 AND 506 OF IPC AND SEC.5(m) R/W 6 OF
POCSO ACT 2012.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K) This appeal is filed by the convicted accused against the judgment of conviction and order of sentence dated 23.08.2019 and 27.08.2019 respectively in Spl.C.C.No.183/2013 passed by the LIII Additional City Civil and Sessions Special Judge, Bengaluru, whereby the learned Special Judge has convicted the accused for the offences punishable under Sections 341, 376(2)(f), 323 and 506 of IPC so also for the offences under Section 5(m) r/w Section 6 of the POCSO Act, 2012 and sentenced him to undergo simple imprisonment for a period of -3- NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 one year and to pay a fine of Rs.5,000/- for the offence punishable under Section 341 of IPC. In default, he shall undergo simple imprisonment for a period of three months. Further, he is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 376(2)(f) of IPC. It is clarified that imprisonment for life is for the remainder of a person's natural life. In default of payment of fine, he shall further undergo rigorous imprisonment till his natural life. Further, he is sentenced to undergo simple imprisonment for a period one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 323 of IPC. In default, he shall further undergo simple imprisonment for a period of three months. The accused is further directed to undergo simple imprisonment for a period of two years and to pay a fine of Rs.10,000/- for the offence punishable under Section 506 of IPC. In default, he shall undergo simple imprisonment for a period of one year. Lastly, the accused is directed to undergo rigorous life imprisonment and to pay a fine of Rs.10,000/- for the offences punishable under Sections 5(m) r/w 6 of POCSO Act, 2012. It is clarified that imprisonment means rest of the natural life. In default, he -4- NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 shall further undergo rigorous imprisonment till his natural life. All the sentences were ordered to run concurrently.
2. The abridged factual matrix of the prosecution case is that, on 04.06.2013 at about 6:30 p.m., victim - PW.1, a minor girl aged about 8 years, visited A.J.Medical Store at 3rd cross of Telecom Layout to purchase an ointment at the behest of PW-2-her father. Following the purchasing of the ointment, the accused under the pretext of enquiring an address approached the girl as she was returning home from the pharmacy with an intention of restraining her. When the victim pointed towards the said house located on another street, the accused compelled her to locate the said house in person and when she resisted asking the accused to let go of her, further, he forcibly took her to the basement of an under-construction building owned by PW.13, by closing her mouth and sexually violated her by having a penetrative sexual act. As she endeavored to call for help and wailed relentlessly, the accused slapped her and threatened her with dire consequences like killing her by placing a large stone on her head and subsequently, he fled the spot.
-5-
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020
3. When the victim was spotted crying outside the said building by her parents PW.2 and 3, she divulged the atrocities committed by the accused by describing the identification of the accused as a man wearing white T-shirt and jeans pant and further described his appearance. Later, PWs.8 and 10 visited the spot and disclosed the incident to the Police. Subsequently, PW.2, the father of the victim lodged a complaint before the respondent-Police as per Ex.P1 and based on the said complaint, an FIR was registered in Crime No.156/2013 dated 04.06.2013 against the accused for the offences punishable under Sections 3 and 4 of POCSO Act, 2012 and Sections 23, 27 of J.J.Act r/w Sections 341, 323, 376 of IPC as per Ex.P10. Meanwhile, CWs.14 and 15 caught the accused who was seen running away towards a vacant plot compound of Ashwathnagar in an attempt to flee the spot. Subsequently, they produced him before the respondent-Police and accordingly, the accused was arrested and the Police recorded his voluntary statement. Later, the Police conducted an investigation of the case. The victim was initially sent to the Bowring and Lady Curzon Hospital for first aid treatment and thereafter PW.5-Doctor referred her to PW.14 for higher -6- NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 treatment. Subsequently, the statement of victim was recorded by the respondent-Police and following her discharge from the Hospital, Test Identification Parade was conducted by PW.20- Tahsildar at Central Prison as per Ex.P17. The victim identified the accused in the Test Identification Parade. On obtaining necessary documents from the concerned authorities, PW.18 laid the charge-sheet against the accused for the offences punishable under Section 5(m) r/w Section 6 of the POCSO Act and Sections 341, 323, 506, 376(2)F of IPC before the Special Court.
4. After taking cognizance of the offences and on securing presence of the accused, the learned Special Judge framed the charges against the accused for the aforesaid offences and read over the same to the accused. However, the accused denied the charges and claimed to be tried. In order to prove the charges leveled against the accused before the Special Judge, the prosecution examined in total 22 witnesses as PWs.1 to 22 so also got marked 19 documents as Exs.P1 to P19 and identified 7 material objects as M.O.1 to 7. Following the completion of the prosecution evidence, the learned Special Judge read over the incriminating portion of the evidence of the -7- NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 material witness to the accused as contemplated under Section 313 of Cr.P.C., but the accused denied the same. The defense of the accused is of total denial and that of false implication. However, the accused neither examined any witnesses on his behalf nor marked any documents.
5. On thorough assessment of the oral and documentary evidence, the learned Special Judge convicted the accused for the charges leveled against him and sentenced him as stated supra. The said judgment is challenged under this appeal.
6. We have heard the learned counsel Sri Veeranna G.Tigadi for the appellant/accused so also, the learned SPP-II for the respondent No.1 - State and the learned counsel Sri V.S.Vinayaka for the respondent No.2/defacto complainant.
7. The primary contention of learned the counsel for the appellant is that the judgment challenged under this appeal suffers from perversity and illegality, since the learned Special Judge has not appreciated the evidence of material witnesses in a right perspective. According to him, an FIR was registered against an unknown male; PW.2-complainant and PW.1-victim -8- NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 initially failed to identify the accused at the time of lodging the compliant. Subsequently, the neighbours caught the accused and handed him over to the Police on suspicion without any concrete information on the crime committed by him. He further contended that, aside from the evidence of PW.20-the Tahsildar and the victim girl with respect to the Test Identification Parade held in the Central Prison, absolutely there is no other piece of evidence to prove the identity of the accused at the time of committing the said crime. The eye witnesses i.e., PWs.8 and 10 have partially turned hostile to the prosecution case in identifying the accused. The learned counsel also contended that the evidence of victim girl - PW.1 is not corroborated with the evidence of PWs.2 and 3 who are none other than her parents, more so the contents of Ex.P1 - complaint does not corroborate with oral testimony of PW.1. In such circumstance, the learned Special Judge wrongly convicted the accused exclusively relying on the surmises and conjectures without duly considering the evidence. Accordingly, he prays to allow the appeal by setting aside the impugned judgment. Alternatively, he contended that the learned Special Judge has imposed maximum sentence to the accused for the offences -9- NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 punishable under Section 376(2)(f) so also Section 5(m) r/w Section 6 of POCSO Act i.e., by imposing life imprisonment which shall mean 'rest of the life' of the accused. He contended that, on perusal of the entire evidence on record, the accused has not committed gruesome act which attracts maximum sentence despite of the minimum sentence prescribed for the charged offences. He also contended that the accused was aged about 22 years at the time of incident and that he is already in incarceration for the last 11 years 3 months. With this submission, he prays to allow the appeal or to modify the sentence imposed by the learned Special Judge.
8. Refuting the above submission, learned SPP-II contended that the learned Special Judge on carefully examining the evidence on record and also on perusal of the documents placed before the Court has passed a well reasoned judgment which does not call for any interference. He further contended that the evidence of PW.1 - victim girl so also her parents i.e., PWs.2 and 3 unambiguously corroborates with each other and all these witnesses have categorically deposed about the diabolical act committed by the accused. According to the learned SPP-II, the age of victim girl is not in dispute as
- 10 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 she was aged about 8 years at the time of incident and the medical report issued by the Doctors categorically establishes the fact that accused has committed brutal sexual assault on the minor victim girl. Further, the report issued by the Doctor confirms and discloses that the accused has committed sodomy on the victim girl and due to which, her anus and other parts of the body are injured. Further, learned SPP-II contends that Ex.P17 i.e., the report issued by the Tahsildar in respect of Test Identification Parade conducted at the Central Prison depicts that victim - PW.1 identified the accused during the course of Test Identification Parade. Moreover, during the course of her evidence, she vividly described the physical appearance of the accused and identified him in the Court. Her version was supported by the evidence of PWs.8, 10, 12 and 13. PW.13-the owner of under-construction building where the victim was sexually assaulted clearly deposed the existence of such a building and that nobody was present on the building's premises at the time of incident. Hence, according to the learned SPP-II, on perusal of the entire evidence on record, the prosecution has established the guilt of the accused beyond reasonable doubt. Since the accused has committed such a
- 11 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 brutal act which calls for an utmost stringent punishment. Accordingly, the learned Special Judge has rightly convicted the accused and has sentenced him to undergo life imprisonment for the remainder of his natural life. Accordingly, he prays to dismiss the appeal by confirming the judgment.
9. The learned counsel Sri V.S.Vinayaka for respondent No.2 supports the arguments advanced by the learned SPP-II and prays to confirm the impugned judgment passed by the learned Special Judge.
10. Having heard the learned counsel for respective parties so also on perusal of the materials available on record, the points that would arise for our consideration in this appeal are as under:
i) Whether the impugned judgment suffers from any perversity or illegality?
ii) Whether the learned Special Judge is justified in convicting the accused for the offences punishable under Sections 341, 376(2)(f), 323 and 506 of IPC so also for the offence punishable under Section 5(m) r/w Section 6 of the POCSO Act, 2012 and by imposing a maximum sentence
- 12 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 i.e., life imprisonment (remainder of his natural life) to the accused?
11. We have given our anxious consideration on the submission made by the respective counsel so also have comprehensively perused the evidence on record.
12. In order to prove the charges leveled against the accused, the prosecution has substantially relied on the evidence of PW.1-the victim. She categorically deposed before the Court that she was aged about 8 years at the time of incident and that she was residing along with her parents and younger brother named Yasin at Ashwathnagar of Saraipalya, further, she added that at the time of the incident she was studying in 3rd standard. According to her, on the fateful day, she visited the pharmacy to purchase an ointment, while she was returning home, an unknown male approached her asking for directions in Urdu language and likewise she directed him appropriately. Subsequently, the said unknown male forcibly caught hold of her and took her to the basement of an under- construction building. When she shouted at the unknown male to let go of her (Chodo), he forcefully shut her mouth with his
- 13 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 hands and lightly stifled her neck thereby threatening her with dire consequences and committed a penetrative sexual act on her. At that time, she heard the voice of her mother calling her, as she slowly walked out of the building approaching her mother she sensed an acute pain in her gentiles. When she saw her mother standing outside the building, she narrated her ordeal to her mother. Subsequently, she was taken to the Hospital and the Doctor treated her. The Police visited the spot and also recorded her statement. She further deposed that, on a later date, her parents took her to the Central Prison to identify the accused during the course of Test Identification Parade. The victim also clearly identified the accused before the Sessions Court at the time of her evidence. This evidence of PW.1 - the victim clearly corroborates with the testimony of PWs.2 and 3 - the parents of the victim.
13. As per Ex.P1 - the complaint lodged by PW.2, by reiterating the contents of the same, he deposed that immediately after the incident, he along with PW.3 visited the spot and enquired their daughter PW.1 on the details of the incident. Subsequently, PWs.8 and 10 also explained to them about the presence of the accused and the act committed by
- 14 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 him. A group of people of the said locality caught the accused and produced him before the Police. These two witnesses have also identified the accused before the Court. As such, the evidence of PWs.1 to 3 clearly establishes that the victim girl was subjected to an act of sexual penetration by the accused on the fateful day. The oral evidence of PWs.1 to 3 further corroborates with the medical evidence of PWs.4 to 6 - the Doctors who examined the victim. Among them, PW.4 was a Pediatrician at the Bowring Hospital, deposed that she initially examined the victim and on such examination it was found that the victim was sexually assaulted and that it was a case of Sodomy. Accordingly, she issued case-sheet as Ex.P3. Further, PW.5 the Medical Officer also treated the victim and referred her to PW.14 for further treatment. PW.6 also examined the victim and issued wound certificate as per Ex.P4. On perusal of Ex.P4, PW.6 has given opinion as under:
1. From physical, dental and radiological examination_____, I am of the opinion that the age of the individual is between ___.
2. On local genital examination, evidence of signs of recent sexual intercourse; Present/Absent.
- 15 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020
3. The individual is used / not used to an act like that of sexual intercourse.
4. From the examination of _______ there is nothing to suggest the person is incapable of performing sexual intercourse.
14. On careful perusal of Ex.P4, it is clear that the victim was subjected to an anal intercourse by the accused. The age of the victim is not in dispute and according to the prosecution case, she was studying in 3rd standard and was aged about 8 years at the time of incident. The same was also confirmed by the Doctor. Nevertheless, the evidence of PWs.1 to 3 is supported by evidence of PWs.8 and 10-the eye witnesses to the incident. PW.8-the owner of A.J.Medical Store from where the victim girl purchased an ointment on the date of the incident. Albeit, PW.10 did not identify the accused, but partially supported the case of the prosecution. PW.9-the witness for Ex.P2 and spot mahazar clearly supported the case of the prosecution, as his version was supported by PW.13-the owner of the building where the incident took place. PW.19 is one of the witnesses of Seizure Mahazar, seized the Auto Rickshaw of the accused which was marked as Ex.P9.
- 16 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020
15. The prosecution also examined the Scientific Officers - PWs.7, 16 and 21 who issued reports as per Ex.P5, P11 and P18 respectively. All these witnesses have deposed about the examination of articles (the material objects) seized by the investigating officer. Their evidence corroborates with the medical evidence and with the oral testimony of PWs.1 to 3, under such circumstances, the evidence of PW.1 cannot be disregarded merely because the victim initially failed to identify the accused and that an FIR was lodged against an unknown male. As a matter of record, immediately after the incident, a group of people of the said locality nabbed the accused and produced him before the Police while he was fleeing the spot. The accused was also injured during the course of his escape. Further, he was examined by PW.11 - the Doctor who identified the injuries on the accused. He also opinioned that the accused was sexually healthy, in such circumstances, we are of the considered opinion that the prosecution has proved the charges leveled against the accused beyond reasonable doubt. Hence, the learned Special Judge has rightly convicted the accused for the charges leveled against him.
- 17 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020
16. However, in respect of alternative prayer made by the counsel for the accused for imposing of minimum sentence is concerned, the accused was sentenced for the offence punishable under Section 376(2)(i) of IPC and Section 5(m) r/w 6 of the POCSO Act. The punishment for the offence under Section 376(2)(i) of IPC is as under:
376 (2) Whoever,--
(i) commits rape on a women when she is under sixteen years of age;
shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. The punishment for the offence punishable under Section 5(m) r/w Section 6 of POCSO Act is as under:
Section 5. Aggravated penetrative sexual assault-
(m) whoever commits penetrative sexual
assault on a child below twelve years;
6. Punishment for aggravated penetrative
sexual assault-
- 18 -
NC: 2024:KHC:47421-DB
CRL.A No. 222 of 2020
(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.
17. However, before amendment in the year 2019, the punishment prescribed for the above offence is as under:
Section 6. Punishment for aggravated penetrative sexual assault - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
18. Admittedly, the crime committed in the instant case in the year 2013 i.e., 04.06.2013 and it is clear from the above stipulated the minimum sentence for the above offence before amendment was prescribed for a term of 10 years.
- 19 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020
19. The learned Special Judge after convicting the accused, imposed maximum sentence i.e., life imprisonment for the remainder of his natural life. The act committed by the accused is gruesome beyond doubts therefore, it calls for stringent punishment. The impact of the diabolical act perpetrated by the accused will profoundly negatively impact the victim girl for the rest of her life. Further, the impact is bound to adversely affect the healthy life and growth of the victim girl. It remains undisputed that the age of the victim was less than 10 years at the time of the incident. Hence, the accused has to be dealt with in a deterrent manner. However, learned counsel for the accused by placing reliance on a decision of the Hon'ble Apex Court in the case of State of Rajasthan v. G reported in (2023) 10 SCC 516 submitted that, in similar circumstances, the Hon'ble Apex Court has commuted the sentence from imprisonment of life to a period of 15 years. He submitted that, in the above case, the victim was aged about 6 years at the time of incident and the accused was aged about 22 years. He further submitted that, similarly in the instant case on hand, the accused was aged about 23 years at the time of the incident and that the victim was aged
- 20 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 about 8 years. Hence, the minimum sentence maybe imposed to the accused.
20. We have carefully considered the above judgment passed by the Hon'ble Apex Court. There is no doubt in the above judgment that the sentence has been reduced to 15 years. However, in the case on hand, by comprehensively considering the evidence on record as discussed supra, it has been established that the accused took undue advantage of the situation and naivety of the helpless minor girl to gratify his sexual desire. The victim girl was not in a position to resist his brutal act. Albeit, the accused is aged about 34 years as on this date. However, it is not in dispute that he has undergone imprisonment for a period slightly over 11 years. Hence, in our considered view, to meet the ends of justice, the accused shall undergo further imprisonment for a period of 5 years i.e., 16 years in total. Accordingly, we modify the sentence imposed by the Sessions Court for 16 years imprisonment from imprisonment for remainder of his natural life and further imposing a fine of Rs.50,000/-.
- 21 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020
21. Accordingly, we answer point No.1 in negative and point No.2 in partly affirmative and proceed to pass the following:
ORDER i. Crl.A.No.222/2020 is allowed in part. ii. The judgment of conviction and order of sentence passed by the LIII Addl.City Civil and Sessions Special Judge, Bengaluru in Special C.C.No.183/2013 dated 23.08.2019 is hereby confirmed.
iii. However, the sentence imposed by the
learned Special Judge for the offence
punishable under Section 376(2)(f) of IPC and Section 5(m) r/w Section 6 of the POCSO Act, 2012 stands modified.
iv. The accused is sentenced to undergo rigorous imprisonment for a period of sixteen years (without any remission) and shall pay fine of Rs.50,000/-. In default to pay the fine amount, the accused shall undergo simple
- 22 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 imprisonment for a period of six months for the offence punishable under Section 376(2)(f) of IPC and Section 5(m) r/w Section 6 of the POCSO Act, 2012. Instead of life imprisonment i.e., till his natural life. v. The rest of the sentences imposed by the Sessions Court are kept intact. vi. All the sentences shall run concurrently. vii. Accused is entitled to get the benefit of set-
off under Section 428 of Cr.P.C.
viii. On deposit of the fine amount by the accused, the learned Special Judge is requested to disburse the said amount to PW.1 on proper identification. Before parting, by considering the NALSA's Compensation Scheme for Women victim/survivors of Sexual Assaults/Other Crimes - 2018, we also deem it appropriate to direct the Karnataka State Legal Service Authority to pay a compensation of Rs.5,00,000/- to the victim as contemplated under Section
- 23 -
NC: 2024:KHC:47421-DB CRL.A No. 222 of 2020 357-A of Cr.P.C. instead of Rs.3,00,000/- directed by the learned Special Judge.
The High Court Legal Services Committee is directed to pay a Retainer Fee of Rs.25,000/- to Sri V.S.Vinayaka, learned counsel for respondent No.2, who was appointed as Amicus Curiae.
SD/-
(K.SOMASHEKAR) JUDGE SD/-
(RAJESH RAI K) JUDGE DKB