Karnataka High Court
Rakesh @ Raki vs State Of Karnataka on 30 September, 2020
Bench: B.Veerappa, K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.911 OF 2015
BETWEEN:
RAKESH @ RAKI
S/O. JAYANANDAKUMAR,
AGED ABOUT 24 YEARS,
RESIDENT OF AMRUTHA NILAYA,
NEAR DEVANURU CHURCH,
NOW RESIDENT OF M.D. PALYA,
NEAR SINGAPURA LAYOUT,
BENGALURU - 560 013.
... APPELLANT
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE)
AND:
STATE OF KARNATAKA
BY NEW EXTENSION POLICE,
TUMKUR - 572 103,
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. S.P.P.)
***
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER ON SENTENCE DATED 29-6-2015 PASSED IN
SPECIAL CASE NO.93 OF 2013 ON THE FILE OF THE
SPECIAL/III ADDITIONAL SESSIONS JUDGE, TUMKUR,
CONVICTING THE APPELLANT-ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 366 AND 372
OF THE IPC, SECTION 6 OF THE POCSO ACT AND SECTION
3(2)(v) OF THE SC/ST (POA) ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR FINAL
HEARING, THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-accused No.1 against the judgment of conviction and order on sentence dated 29-6-2015 passed in Special Case No.93 of 2013 on the file of the Special/Sessions Judge, Tumkur, convicting him for the offences punishable under Sections 366 and 372 of the Indian Penal Code (for short, 'the IPC'), Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act') and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes 3 (Prevention of Atrocities) Act, 1989, (for short, 'the SC/ST (POA) Act)'. Accused No.1 has been sentenced to undergo imprisonment for ten years with fine of Rs.10,000/-, in default of payment of fine, to undergo imprisonment for a period of three months for the offences punishable under Sections 366 and 372 of the IPC and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.10,000/, in default of payment of fine, to undergo imprisonment for three months for the offence punishable under Section 6 of the POCSO Act and further sentenced to undergo imprisonment for life with fine of Rs.20,000/-, in default of payment of fine, to undergo imprisonment for six months for the offence punishable under Section 3(2)(v) of the SC/ST (POA) Act.
4
2. For the sake of convenience, the parties herein shall be referred to in terms of their status before the trial Court.
3. It is the case of the prosecution that, on 30-10-2012 at 11:00 a.m., accused No.1 committed rape forcibly on P.W.1-victim by entering into her house when she was alone. Thereafter, accused No.1 knowing fully well that the victim belongs to a Scheduled Caste promised to marry her and took her to his house and committed rape on her forcibly. On 1-11-2012, he took her in Indica car to a poultry farm at Salundi village in Mysuru and detained her for three days and committed rape on her forcibly. Thereafter, accused No.1 took the victim to the house of accused No.2 at Mysuru and received Rs.15,000/- from accused No.2 and as per the preplan with common intention, accused No.1 left 5 the victim and went to Tumukuru by saying that he will bring money and said her to stay there for one day. On the same day, knowing fully well that the victim is a minor and belongs to the Scheduled Caste, accused No.2 tried to commit rape on her forcibly and when the victim cried, accused No.2 abused her in filthy language and assaulted on her cheek and committed rape forcibly. Later, six persons committed rape on her forcibly. The victim was unable to escape from there and for eighteen days, eight to nine persons committed rape everyday on the victim and paid amount to accused No.2. On 24-11-2012, one drunkard tried to bite on her private part, she escaped and came outside. At that time, accused No.2 took the entire amount from her and drove her out of the house in the night itself. Based on the complaint, the Police registered a case for the offences punishable under Sections 366A, 6 342 and 376 read with Section 34 of the IPC and under Section 3(1)(ii) of the SC/ST (POA) Act. Later, the Police filed charge-sheet against accused No.1 for the offences punishable under Sections 344, 366, 366A and 376 read with Section 34 of the IPC, Section 3(i)(ii)(v)(xi) of the SC/ST (POA) Act, 1989, Section 5(a)(b)(c) of the ITP Act and Section 3(a) to (d) of the POCSO Act. However, accused No.2 was shown as absconding and case against accused No.2 was split up. Later, the said charges were altered by considering the application filed by the learned Public Prosecutor. The offences under Section 5 of ITP Act, Sections 344 and 376 of the IPC and Section 4 of POCSO Act are deleted by adding Section 372 of the IPC and Section 6 of the POCSO Act. Learned Sessions Judge framed fresh charges and read over to accused No.1, he pleaded not guilty and claimed to be tried.
7
4. In order to bring home the guilt of accused No.1, the prosecution examined 17 witnesses as P.W.1 to P.W.17 and got marked 15 documents as Ex.P.1 to Ex.P.15. After completion of evidence, the learned Sessions Judge recorded the statement of accused No.1 under Section 313 of the Code of Criminal Procedure. Accused No.1 denied all the incriminating evidence adduced against him and submitted there is no defence evidence.
5. The learned Sessions Judge raised four points for his consideration. After considering the entire material on record, the learned Sessions Judge held that the prosecution proved the case beyond reasonable doubt that accused No.1 along with accused No.2, with common intention, knowing fully that the victim is a minor committed aggravated penetrative sexual assault on the victim, on different 8 dates, i.e. in her house, in his house as well in the poultry farm and thereby, committed an offence under Section 6 of the POCSO Act. The learned Sessions Judge further recorded a finding that accused No.1 induced the victim to marry her, kidnapped her and took her to Mysuru and thereby, committed an offence punishable under Section 366 of the IPC. Further, the learned Sessions Judge recorded a finding that accused No.1 intentionally kidnapped the victim and sold her to accused No.2 for Rs.15,000/- and accused No.2 confined her for eighteen days in his house and used the victim for the purpose of prostitution and thereby, committed an offence under Section 372 of the IPC. Further, the learned Sessions Judge recorded a finding that knowing fully well that the victim belongs to the Scheduled Caste, with common intention, not being the member of the Scheduled Caste committed an 9 offence under Section 366 and 372 of the IPC, which is punishable with imprisonment for a term of ten years or more, against a minor girl on the ground that he belongs to the Scheduled Caste and thereby, committed an offence under Section 3(2)(v) of the SC/ST (POA) Act. Accordingly, the learned Sessions Judge by impugned judgment, convicted accused No.1 for the aforesaid offences. Hence, the present appeal.
6. We have heard Sri Hashmath Pasha, learned senior counsel appearing for accused No.1 and Sri Vijaya Kumar Majage, learned Additional State Public Prosecutor for the respondent-State.
7. Sri Hashmath Pasha, learned senior counsel appearing for accused No.1, has contended that the alleged sexual assault committed by accused No.1 on the victim from 30-10-2012 to 10 3-11-2012 does not attract the provisions of Section 6 of the POCSO Act, as the POCSO Act came into force with effect from 14-11-2012 and on the alleged date of offence, the POCSO Act was not existing and Article 20(1) of the Constitution of India is applicable. Therefore, charge No.1 made against accused No.1 is not sustainable. He further contended that accused No.1 has been convicted for the offences under Section 366 and 372 of the IPC which are punishable with imprisonment for a term extended up to ten years with fine. In order to attract Section 3(2)(v) of the SC/ST (POA) Act, the accused must commit an offence under the IPC punishable with ten years or more. Therefore, charge No.4 made against accused No.1 is not sustainable.
11
8. Learned senior counsel further contended that with regard to charge Nos.2 and 3, absolutely there is no evidence on record. To prove the age of the victim as on the date of the alleged offence, Ex.P.10-Study Certificate is issued by P.W.12-Head Master and as per the School record, the victim was aged 17 years 5 months and the said document is secondary evidence and the same is not admissible. He further contended that in so far as charge Nos.2 and 3 for the offences under Sections 366 and 372, accused No.1 was arrested on 12-2-2013 and since then, he is in jail, i.e. for seven years seven months and eighteen days, therefore, the sentence period undergone by accused No.1 may be given set off. Hence, he sought to allow the appeal.
9. Per contra, Sri Vijaya Kumar Majage, learned Additional State Public Prosecutor, has 12 sought to justify the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge. Further, he has not disputed the fact that as on the date of the offence, i.e. from 30-10-2012 to 3-11-2012, the POCSO Act was not in force and the said Act came into force from 14-11-2012. He further admitted that in order to attract Section 3(2)(v) of the SC/ST (POA) Act, the accused must commit an offence under the IPC punishable with ten years or more. Therefore, charge Nos.1 and 4 made by the learned Sessions Judge is not correct. However, the accused is found guilty for the offences punishable under Sections 366 and 372 of the IPC. Hence, he sought to dismiss the appeal.
10. In view of the aforesaid rival contentions urged by the learned senior counsel for the appellant 13 and the learned Additional State Public Prosecutor, the points that arise for our consideration are:
i. Whether accused No.1 has made out a case to interfere with the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge imposing punishment for ten years with fine of Rs.10,000/-
for the offence punishable under Section 6 of the POCSO Act?
ii. Whether accused No.1 has made out a case to interfere with the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge imposing imprisonment for life with fine of Rs.20,000/- for the offence punishable under Section under Section 3(2)(v) of the SC/ST (POA) Act?14
iii. Whether accused No.1 has made out a case to interfere with the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge imposing punishment for ten years with fine of Rs.10,000/- for the offences punishable under Sections 366 and 372 of the IPC?
11. We have given our anxious consideration to the arguments advanced by the learned senior counsel for the appellant as well the learned Additional State Public Prosecutor and perused the entire material including the original record carefully.
12. In order to re-appreciate the evidence of the prosecution witnesses, it is appropriate to have a cursory look at the evidence of the prosecution witnesses.
15
13. P.W.1 is the victim. She has reiterated the facts as stated in the complaint that accused No.1 committed rape on her on several occasions, i.e. in her house, in his house and in the poultry farm. Thereafter, accused No.1 sold her to accused No.2 by receiving Rs.15,000/-. Accused No.2 confined her for eighteen days and eight to nine persons committed rape everyday on her.
14. P.W.2-Srinivasa is the father of the victim, who lodged the missing complaint as per Ex.P.5 and has supported the case of the prosecution.
15. P.W.3-Smt. Dazian is the landlord where P.W.1 and P.W.2 were residing. She has turned hostile.
16. P.W.4-Umesh and P.W.5-Kumar are panch witnesses to Ex.P.2. They have turned hostile. 16
17. P.W.6-Shankar is the landlord where accused No.2 was residing. He has deposed that he has let out his house to accused No.2 and the Police have drawn the mahazar with regard to the victim detained in the said house as per Ex.P.8.
18. P.W.7-Beeregowda is the owner of poultry farm where accused No.1 detained the victim for a period of three days. He has deposed that the Police have drawn the mahazar with regard to the victim detained in the poultry farm as per Ex.P.4. He has supported the case of the prosecution.
19. P.W.8-Raju is another pancha. He has deposed that the Police took him and another pancha to Salundi village poultry farm and drawn the mahazar as per Ex.P.4. He has supported the case of the prosecution.
17
20. P.W.9-Maheshkumar, P.W.10-Somashekar and P.W.11-Kumar are neighbours of P.W.6. They have deposed that the Police have drawn the mahazar with regard to the victim detained in the house of accused No.2 as per Ex.P.8. They have supported the case of the prosecution.
21. P.W.12-Panchaksharaiah is the Head Master of the School where the victim studied and he issued Date of Birth of the victim as 23-5-1995 as per Ex.P.10.
22. P.W.13-Dr. Shivaraju examined the victim and issued Ex.P.12-Medical Certificate and opined that the victim is suffering from sexual transmitted disease. Hymen is ruptured. Two to three days prior to examination of the victim, there is no symptom of sexual intercourse and earlier to that, 18 there is possibility of sexual intercourse. He has supported the case of the prosecution.
23. P.W.14-Balaji Singh is the Deputy Superintendent of Police, who filed charge-sheet and has supported the case of the prosecution.
24. P.W.15-Ravikumar is the Sub-Inspector of Police, who received a complaint from P.W.1-victim as per Ex.P.1. He also requested the Court by filing memo to add offences under Sections 366A, 342 and 376 read with Section 34 of the IPC and Section 3(i)(xi) of the SC/ST (POA) Act.
25. P.W.16-Vijay Kumar, Deputy Superintendent of Police, who investigated the case and has supported the case of the prosecution.
26. P.W.17-Ramalingaiah, Assistant Sub- Inspector of Police, who received missing complaint 19 from P.W.2-father of the victim, registered a case and sent F.I.R. to the Superintendent of Police, Tumkuru. He has supported the case of the prosecution.
27. Based on the aforesaid material evidence on record, the learned Sessions Judge proceeded to convict accused No.1 for the offences made out in the Charge Memo holding that prosecution has proved all the charges against accused No.1 beyond reasonable doubt.
28. In order to re-appreciate the entire material, it is relevant to consider the legal contentions urged by Sri Hashmath Pasha, learned senior counsel appearing for accused No.1, with regard to charge Nos.1 and 4 for the offences punishable under Section 6 of the POCSO Act and Section 3(2)(v) of the SC/ST (POA) Act. 20
29. The learned Sessions Judge framed four charges against accused No.1. It is the case of the prosecution that accused No.1 committed sexual assault on the victim on 30-10-2012 and she was detained at the poultry farm up to 3-11-2012, i.e. four four days and even there, accused No.1 committed sexual assault on the victim. Accordingly, charge came to be framed for the offence punishable under Section 6 of the POCSO Act.
30. Admittedly, the provisions of Section 6 of the POCSO Act came into force from 14-11-2012. The alleged offences are committed by the accused from 30-10-2012 to 3-11-2012 and at that time, the Act was not in force. Therefore, the very charge framed by the learned Sessions Judge invoking Section 6 of the POCSO Act cannot be sustained, in view of Article 20(1) of the Constitution of India. 21
31. The provisions of Article 20(1) of the Constitution of India read as under:
"20. Protection in respect of conviction for offences:-
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
A careful reading of the above Article makes it clear that the sentence imposable only for the offence under the Act which is in existence as on the date of commission of the offence, has to determine the sentence imposable on completion of trial. 22
32. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of RAVINDER SINGH v. STATE OF HIMACHAL PRADESH reported in AIR 2010 SC 199, which reads as under:
"10. It is trite law that the sentence imposable on the date of commission of the offence has to determine the sentence imposable on completion of trial. This position is clear even on a bare reading of Article 20(1) of the constitution of India, 1950 (in short, 'the Constitution'). The said provision reads as under:
xxx xxx xxx
11. Wills in his Constitutional Law of the United States (at page 516) brought out a lucid classification of the penal law which are ex post facto:23
(i) when they make criminal an act which was innocent when done;
(ii) when they make a crime greater than it was when it was committed;
(iii) when they make the punishment greater than the punishment was at the time the act was committed;
(iv) when they change the rule of evidence as to deprive a defendant of a substantive right; and
(v) when they make retrospective qualifications for an offence which are out a proper exercise of the police power.
Under Article 20(1) of the Constitution what is prohibited is the conviction and sentence in criminal proceedings under ex post facto law."
24
33. In view of the above, charge No.1 made against accused No.1 and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs.10,000/- for the offence under Section 6 of the POCSO Act cannot be sustained and is liable to be set aside.
34. In so far as charge No.4, the provisions of Section 3(2)(v) of the SC/ST (POA) Act reads as under:
"3(2)(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine."25
A careful reading of the said provisions makes it clear that any offence committed under the provisions of the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property knowing that person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.
35. The provisions of Section 3(2)(v) of the SC/ST (POA) Act clearly depicts that the offence committed under the provisions of the Indian Penal Code is punishable with imprisonment for a term of ten years or more, but for the offences under Sections 366 and 372 of the IPC, the term of imprisonment may extend only up to ten years with fine.
26
36. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of RAJEEV CHAUDHARY v. STATE (NCT) OF DELHI reported in 2001 SCC (CRI) 819, which reads as under:
"6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment 27 could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years.
Under Section 386 of the IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years."28
37. The said view is reiterated and confirmed by the Hon'ble Supreme Court in the case of RAKESH KUMAR PAUL v. STATE OF ASSAM reported in (2017) 15 SCC 67, which reads as under:
"29. Notwithstanding this, the basic legislative intent of completing investigations within twenty-four hours and also within an otherwise time-bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time-limits have been 29 laid down by the legislature. There is a legislative appreciation of the fact that certain offences require more extensive and intensive investigations and, therefore, for those offences punishable with death or with imprisonment for life or a minimum sentence of imprisonment for a term not less than 10 years, a longer period is provided for completing investigations."
38. In view of the aforesaid decision, for the offences under Sections 366 and 372 of the IPC, the term of imprisonment may extend up to ten years. Therefore, the provisions of Section 3(2)(v) of the SC/ST (POA) Act would not attract. Hence, charge No.4 made against accused No.1 and sentencing him to undergo imprisonment for life with fine of Rs.20,000/- for the offence under Section 3(2)(v) of the SC/ST (POA) Act is liable to be set aside.
30
39. In so far as the offences committed by accused No.1 as per charge Nos.2 and 3 with regard to provisions of Section 366 and 372 of the IPC, it is specific case of the prosecution that accused No.1 knowing fully that the victim is minor committed sexual assault in her house, in his house and at the poultry farm from 30-10-2012 to 3-11-2012, i.e. for four days and the same is supported by the evidence of the prosecution witnesses. Evidence of pancha witnesses, i.e. P.W.4, 5, 7, 8, 9, 10 and 11 and evidence of P.W.14-Investigating Officer and material document produced clearly depicts that accused No.1 has committed the offences made out under the provisions of Sections 366 and 372 of the IPC. The maximum punishment for the offences under Sections 366 and 372 of the IPC may be extended up to ten years. Taking into consideration the peculiar 31 circumstances and the fair submission made by the learned senior counsel for accused No.1 that accused No.1 is in custody from 12-2-2013, i.e. for seven years, seven months and eighteen days, we are of the considered opinion that the sentence period undergone by accused No.1 be given set off.
40. For the reasons stated above, issue Nos.1 and 2 raised in the present appeal is answered in negative holding that the learned Sessions Judge is not justified in framing the charges under Section 6 of the POCSO Act and Section 3(2)(v) of the SC/ST (POA) Act. This Court has come to the conclusion that the very charge made against accused No.1 under Section 6 of the POCSO Act is not sustainable, as the said Act itself came into force from 14-11-2012. Further, issue No.3 is answered partly in the affirmative. The learned Sessions 32 Judge is justified in holding that the prosecution proved the offences made out under Sections 366 and 372 of the IPC beyond reasonable doubt, but not justified in awarding maximum punishment of ten years. Imprisonment for life under Section 3(2)(v) of the SC/ST (POA) Act applies only in cases where offence committed under the provisions of the Indian Penal Code is punishable with minimum term of ten years or more. Admittedly, in the present case, the offences made out against accused No.1 under the provisions of Sections 366 and 372 of the IPC prescribes the maximum sentence which may be extended up to ten years. Therefore, the impugned judgment of conviction and order on sentence for the offences punishable under Sections 366 and 372 of the IPC has to be modified.
33
41. For the reasons stated above, we pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment of conviction and order on sentence dated 29-6-2015 passed in Special Case No.93 of 2013 on the file of Special/Sessions Judge, Tumkur, is hereby set aside only in so far as charge Nos.1 and 4. Accused No.1-
Rakesh @ Raki is hereby acquitted of the charges leveled against him for the offences punishable under Section 6 of the POCSO Act and Section 3(2)(v) of the SC/ST (POA) Act;
34
iii) The sentences imposed on accused No.1 to undergo imprisonment for ten years with fine of Rs.10,000/- for the offences punishable under Sections 366 and 372 of the IPC are modified.
Accused No.1 is sentenced to undergo imprisonment for seven years seven months eighteen days with fine of Rs.5,000/- (Rupees five thousand only) and he is set at liberty as he has already undergone the said period;
iv) Accused No.1 is entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure, 1973;
35
v) Exercising the power under Section
357(3) of the Code of Criminal
Procedure, 1973, the fine amount
imposed on accused No.1 shall be
recovered and paid to the victim; and
vi) The Registry is hereby directed to communicate this order to the concerned Jail Authorities and the Jail Authorities are hereby directed to release accused No.1 forthwith, if he is not required in any other case, after following the Standard Operating Procedure and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE kvk