Karnataka High Court
The State Of Karnataka vs Shaukath Ali on 2 April, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 Crl.A. NO.11/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02nd DAY OF APRIL, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.11 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
BY WOMEN POLICE, DAVANGERE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU.
...APPELLANT
(BY SMT. RASHMI JADHAV, ADDITIONAL S.P.P.)
AND:
1. SHAUKATH ALI
S/O SHEKH YOUSUF
AGED 21 YEARS
RESIDENT OF H.K.R. CIRCLE
DAVANGERE-570 001.
2. SMT. AFOZ BANU
W/O SHAFI AHMAD
AGED 38 YEARS
HOUSE WIFE
DOOR NO.1629/3
VIDYARTHI BHAVAN
NEAR KRISHNA HOTEL
2 Crl.A. NO.11/2018
DAVANGERE CITY.
(IMPLEADED VIDE COURT ORDER DATED
23.11.2023)
...RESPONDENTS
(BY SRI P.B. UMESH ADVOCATE FOR
SRI R.B. DESHPANDE, ADVOCATE FOR R-1;
SMT. ARCHANA K.M., AMICUS CURIAE FOR R-2
VIDE COURT ORDER DATED 07.12.2023)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
05.05.2017 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE IN
S.C.NO.11/2016 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376, 324 AND 506 OF IPC AND SECTION 4 AND 8 OF
POCSO ACT, 2012.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 13.03.2024, COMING ON FOR PRONOUNCEMENT,
THIS DAY, VENKATESH NAIK T. J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
The State has filed this appeal under Section 378(1) and (3) Code of Criminal Procedure, 1973 (hereafter for 3 Crl.A. NO.11/2018 brevity referred to as Cr.P.C.) challenging the judgment of acquittal dated 05.05.2017 passed by II Addl. District and Sessions Judge and Special Judge, Davangere in S.C.No.11/2016 acquitting the accused of the offences punishable under Sections 376, 324 and 506 of Indian Penal Code, 1860(hereinafter for brevity referred to as 'IPC') and Sections 4 and 8 of The Protection Of Children From Sexual Offences Act, 2012 (hereinafter for brevity referred to as 'POCSO Act').
2. The summary of the case of the prosecution before the Special Court was that PW.1 Smt. Afrozabanu, mother of victim(PW3) lodged a complaint-Ex.P1 on 31.10.2015 alleging that she is a permanent resident of Davangere Town, she has three children and among them, the first child-victim is a deaf and dumb girl. PW1's husband is working as a flower merchant and her mother-in-law Bibijan(PW.8) remains in the house. Since three years as on 4 Crl.A. NO.11/2018 the date of alleged incident, the accused was working as a labour in the flower shop of her husband.
2a. On 26.10.2015 at 2.00 p.m., PW.1 left the house in order to wash the clothes in a canal and returned at 8.00 p.m. In the mean while, the accused entered the house and committed penetrative sexual assault on the deaf and dumb girl-victim, pressed her chest and made scratch marks on her chest bitten by his teeth and thus caused injuries. Soon after return of PW.1, the victim was not natural, hence, she enquired about her behavior, victim was not normal in the house, later PW.1 saw visible injury on the chest of the victim and thus when she enquired the victim as to who caused the injuries, the victim girl did not reveal.
2b. After five days of the incident, again PW.1 enquired the victim and also made hand gestures of about five to six persons' names. Ultimately, the victim gave symbolic gesture that the accused caused such injuries and hence, PW.1 lodged the complaint as per Ex.P1. Based on 5 Crl.A. NO.11/2018 the complaint, the Women Police, Davangere registered a case in Cr.No.113/2015 for the aforesaid offences and submitted FIR (Ex.P10) and complaint to the Court.
2c. After registering the same, the Investigating Officer visited the scene of occurrence, drew spot mahazar, recorded the statement of the witnesses, took the victim to the hospital for medical examination and also produced her for recording the statement under Section 164 Cr.P.C. He arrested the accused and later produced him before the Magistrate. The Investigating Officer after completion of investigation filed the charge sheet for the aforesaid offences.
3. In order to prove the alleged guilt against the accused, the prosecution got examined in all 10 witnesses as PWs.1 to 10 and got marked 10 documents from Ex.P1 to Ex.P10 and no material objects have been marked. From the accused side, neither any witness was examined nor any documents were marked as exhibits.
6 Crl.A. NO.11/2018
4. After hearing both side, the learned Special Judge's Court, by its judgment dated 05.05.2017, acquitted the accused of the offences charged. Challenging the same, the State has preferred the present appeal.
5. Respondent No.1/accused is being represented by his learned counsel and respondent No.2-complainant though was served had remained absent and hence the Court proceeded to appoint learned counsel Smt. K.M. Archana, as Amicus Curie for respondent No.2.
6. Learned Additional State Public Prosecutor for the appellant -State and learned counsel for respondent No.1(accused) and learned Amicus Curiae for the respondent No.2(complainant) are physically appearing in the Court.
7. The Special Judge's Court records were called for and the same are placed before this Court. 7 Crl.A. NO.11/2018
8. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the Special Court records.
9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Judge's Court.
10. After hearing the learned counsels for the parties, the Special court framed the following points for its consideration:-
1. Whether the prosecution has proved beyond reasonable doubt that the accused on 26.10.2015, in between 2.00 p.m. in the afternoon and 8.00 p.m. in the night, when the victim girl PW.3/CW.2 who is a dumb girl was alone in the house situated near Vidyarthi Bhavana, KTJ Nagara, Davanagere, at that time, accused committed aggravated penetrative sexual assault on her against her will knowingly that she was minor then, thereby committed an offence punishable under Section 4 of POCSO Act?
2. Whether the prosecution has proved beyond reasonable doubt that the accused on the date, time and place mentioned above when the victim 8 Crl.A. NO.11/2018 PW.3/CW.2 was alone in her house, he outraged her modesty by touching secret parts of her body and thereby committed an offence under section 8 of POCSO Act?
3. Whether the prosecution has proved beyond reasonable doubt that the accused on the aforesaid date, time and place when victim was alone in the house, at that time, he has committed rape on her against her will and without her consent and thereby has committed an offence under section 376 IPC?
4. Whether the prosecution has proved beyond reasonable doubt that the accused caused simple injuries to victim by biting and scratching her with his teeth on her chest and thereby committed an offence under section 324 IPC? and
5. Whether the prosecution has proved its case against the accused further proves beyond all reasonable doubt that on the aforesaid date, time and place, this accused after committing rape on her, has committed criminal intimidation by threatening with dire consequences to her life, if she disclose the matter to anybody, and thereby committed an offence punishable under section 506 IPC?
6. What order?
11. Learned Additional SPP for the appellant-State in her argument submitted that as on the date of alleged offence, the victim girl was minor in her age, more particularly, she is a deaf and dumb girl. As such, her 9 Crl.A. NO.11/2018 alleged consent, if any, would not be a valid consent in the eye of law. It is contended that the victim-PW.3 and PW.4 the teacher of deaf and dumb school, Davanagere, who translated statement of victim under Section 164 Cr.P.C. and translated the oral testimony of PW.3 before the Court have supported the case of the prosecution. Further, PW.5- Sumiyabanu, sister of PW.1 and aunt of victim and the grandmother of victim-PW.8 Bibijan have stated about the incident and corroborate the oral testimony of the victim. Further, the oral testimony of the victim, her mother, her aunt, her grandmother and PW.4 teacher is supported by medical evidence. PW.6-Doctor has clearly stated that there is injury on left chest of the victim and there were scratch marks on both sides of chest, bluish injury on left chest, hymen was not ruptured. But, the Special Court failed to properly appreciate the medical evidence placed by the prosecution to establish the guilt of the accused. Non- appreciation of evidence and materials on record in proper 10 Crl.A. NO.11/2018 perspective has resulted in miscarriage of justice. It is contended that the Special Court ought to have appreciated the evidence of the victim which is sufficient to bring home the guilt of the accused as the victim has categorically stated about the act committed by the accused.
12. Relying upon few judgments of Hon'ble Apex Court and also a judgment of co-ordinate bench of this Court, the learned Additional SPP for the appellant-State submitted that when there is oral evidence of victim and her mother showing the age of the victim as a minor and PW.7-Dr. L. Ashok, Dentist, Bapuji Hospital, Davanagere has estimated the age of victim as 15 years (+) or (-) 2 years which comes to 17 years as per Ex.P9. Therefore, as on the date of incident, the victim was a minor, but the trial Court has not considered this aspect and failed to invoke Section 29 of POCSO Act and drew presumption in favor of the prosecution. Thus, learned Addl. State Public Prosecutor prayed to allow the appeal.
11 Crl.A. NO.11/2018
13. The learned Additional SPP relied upon the following citations:
1. Wahid Khan v. State of Madhya Pradesh reported in (2010) 2 SCC 9.
2. State of Himachal Pradesh v.
Manga Singh reported in (2019) 16 SCC 759.
14. Sri P.B. Umesh for Sri R.B.Deshpande, learned counsel for respondent No.1/accused in his argument submitted that PW.3 is a deaf and dumb girl and she was tutored by her mother, aunt and grandmother and they are planted witnesses in this case. The victim as well as the interpreter have not stated about the ingredients of Section 376 of IPC and Section 4 of POCSO Act so as to attract those provisions in its perspective.
15. It is contended that the incident took place in a busy area and there were three other workers working in the flower shop of PW.1 and her husband. However, PW.1 12 Crl.A. NO.11/2018 and victim made allegation against accused alone in the absence of any material particulars. It is contended that though PW.6 Dr. Nagaveni S.K. has shown the injury, but she has not stated the nature of injury. Further, PW.6 did not mention that victim was mentally unstable. The Doctor certifies that the victim is able to make independent judgment; she is aware of consequence of social action. It is contended that there is delay of almost 7 days in filing the complaint and no explanation is offered by the complainant. Further, the Special Court has failed to videograph the oral testimony of PW.3-victim during trial, which is a mandate under Section 119 of Indian Evidence Act, 1872. It is contended that the scribe of complaint- Ex.P1 is not examined and so far as statement recorded under Section 164 Cr.P.C, no translation is done in the question and answer form. Therefore, the very recording of victim's statement under Section 164 Cr.P.C is doubtful. 13 Crl.A. NO.11/2018 Hence, learned counsel for the accused/respondent No.1 prayed to dismiss the appeal.
16. The learned counsel for respondent No.1/accused also relied upon decisions of Hon'ble Apex Court in his support and submitted that the impugned judgment does not warrant any interference at the hands of this Court.
17. Smt. Archana K.M. learned Amicus Curiae appearing for defacto complainant/respondent No.2 submitted that PWs.1, 3, 4, 5 and 8 have clearly stated that the accused committed penetrative sexual assault on the victim, he scratched with his teeth on the chest of victim and also made criminal intimidation to her.
18. The oral evidence of PWs.1, 3, 5 and 8 is corroborated with medical evidence. PW.6 doctor has stated that on examination of the victim, she found injury on left chest, scratch on both sides of chest, and bluish injury on left chest. Hence, there is ample evidence to show that the 14 Crl.A. NO.11/2018 victim was subjected to penetrative sexual assault by the accused. Further, as on the date of incident, the victim was a minor, aged 15 years. PW.7-Dr.L. Ashok, Dentist has estimated the age of victim to be 15 years (+)/(-) 2 years, which comes to 17 years. Hence, the victim was below 18 years at the time of the incident. But, the Special Court without considering the oral evidence of PWs.1, 3, 5 and 8 and medical evidence proceeded to acquit the accused. Hence, she prayed to allow the appeal.
19. After hearing the learned counsel from both side, the points that arise for our consideration in this appeal are:
1. Whether the prosecution has proved beyond reasonable doubt that on 26.10.2015 in between 2.00 p.m. and 8.00 p.m., the accused entered the house of PW.1 when victim girl-PW3 was alone in the house, who is a deaf and dumb girl and has committed aggravated penetrative sexual assault on her against 15 Crl.A. NO.11/2018 her will knowingly that she was minor then and thereby committed an offence punishable under section 4 of POCSO Act r/w 376 IPC?
2. Whether the prosecution further proves that on the aforesaid date, time and place, when the victim PW.3 was alone present in her house, accused touched secret parts of her person, scratched with his teeth on her chest and thereby committed an offence punishable under section 8 of POCSO Act?
3. Whether the prosecution further proved that, the accused after committing sexual assault on her, made criminal intimidation by threatening her with dire consequences, if she disclose the matter to anybody and thereby committed an offence punishable under section 506 of IPC?
4. Whether the prosecution further proves its case against the accused beyond all reasonable doubt that, 16 Crl.A. NO.11/2018 on the aforesaid date, time and place, when the victim girl was alone present in her house, the accused has caused simple injury to her by biting her and scratching with nails on her body, and thereby committed an offence punishable under section 324 of IPC?
5. Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
20. Before proceeding further in analyzing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused/respondent No.1 of the offences punishable under Sections 376, 324 and 506 of IPC and Sections 4 and 8 of POCSO Act, 2012. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the 17 Crl.A. NO.11/2018 accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind the evidence placed by the prosecution in the matter is required to be analyzed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."18 Crl.A. NO.11/2018
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court 19 Crl.A. NO.11/2018 rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti -vs- State of Haryana and others reported in AIR 2023 SC 1199.
21. It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.
22. The prosecution, in order to prove the alleged guilt against accused has examined in all ten witness from PW.1 to PW.10.
23. PW.1-Afrozabanu, mother of victim has stated that victim is her daughter, one Shafi Mohammed is her 20 Crl.A. NO.11/2018 husband. The accused was working in their flower stall since three years from the date of alleged incident, her other two children and her mother-in-law were in the house. Victim-PW.3 is a deaf and dumb girl and as on the date of alleged incident, she was aged about 16 years. The victim for her daily activities has been completely depending upon her mother i.e., PW.1. It is the evidence of PW.1 that on 26.10.2015 afternoon, she went to a canal for washing clothes and she returned at 8:00 p.m. As soon as she came to her house, the victim did not have her dinner and she was often going for attending her nature call. Hence, she enquired the victim, but she did not reveal any reasons. The victim continued the same activities for two days, therefore, PW.1 saw the person of victim and noticed a bite mark injury on the chest of the victim. Therefore, she enquired the victim, but she did not reveal the names of any person, but after 4-5 days, PW.1 by hand gestures showed names of four to five suspected names, for which, 21 Crl.A. NO.11/2018 victim nodded her head as 'no', but while PW.1 showed by hand gesture the name of accused, the victim nodded her head as 'yes', who committed offence against her. Therefore, on 31.10.2015, PW.1 lodged the complaint as per Ex.P1. On the following day of the incident, the police took the victim to the hospital for medical examination and the police visited the scene of offence, they drew spot panchanama as per Ex.P3, took the photograph as per Ex.P2, enquired the witnesses and later took the victim to the Court for recording statement under Section 164 Cr.P.C. PW.1 was subjected to a detailed cross-examination from the accused side. In her cross-examination, though several attempts were made to shake the credibility of her evidence given in her examination-in-chief, but the witness adhered to her original version.
24. PW.2-Sadhikh Ali, a witness to spot panchanama- Ex.P3, has stated that on 01.11.2015 at 10:00 a.m., the Women Police, Davanagere came to the scene of 22 Crl.A. NO.11/2018 occurrence, where they drew spot panchanama in his presence as per Ex.P3.
25. PW3- the victim was examined through PW.4, the interpreter, through her signs and hand gestures before the court that, PW.1 is her mother and accused was working in flower stall of her father. She has given her evidence through signs and hand gestures, she showed her finger and kept in her mouth to a suggestion of a Special Public Prosecutor through interpreter, as to what happened to her by the accused. She also showed by signs that the accused scratched with his nails and caused bite marks on her chest. By her sign and gesture, she stated that on the day of the incident, her mother PW.1 had been to canal for washing of clothes. Her mother used to bathe her everyday. Her mother used to help her while she wore clothes. Soon after the incident, the victim told her mother about the act committed by the accused.
23 Crl.A. NO.11/2018
PW.3 was subjected to cross examination by the counsel for the accused. In her cross examination, she has stated that she used to hear the words of her mother. She denied that as on the date of the incident, her mother had not been to canal for washing clothes and she was very much present in the house. But, PW.3 the victim did not answer to a suggestion as to number of persons who had visited her house as on the date of the incident. She has not answered the suggestion that she had no impediment to inform her mother about the incident on the day of the incident itself. She further maintained silence to a suggestion that in her chief-examination, she has not answered the questions posed by the Special Public Prosecutor due to her inability to answer and thus her mother answered all the questions on her behalf. PW.1 has not answered to a question that, her mother has filed false case against the accused, inspite of there no case being made out against the accused.
24 Crl.A. NO.11/2018
26. PW.4-Sharadamma, the teacher of deaf and dumb school i.e., Sri. Mouneshwari Deaf and Dumb School, Davanagere has stated that she translated the statement of the victim recorded before the Magistrate under Section 164 of Cr.P.C. as well as she translated the statement of the victim before the Court.
27. PW.5-Sumiyabanu, the sister of PW.1 and Aunt of victim and PW.8-Bibijan the grandmother of the victim have reiterated the oral testimony of PW.1 and corroborates her oral testimony. PWs.5 and 8 admit that they came to know about the incident through PW.1.
28. It is asserted that PW.3 victim is a dumb witness. Therefore, a duty is cast upon this Court to examine whether the oral testimony of PW.3 is recorded as provided under Section 119 of the Indian Evidence Act. If so, such evidence recorded by the learned Special Judge can be acted upon.
25 Crl.A. NO.11/2018
Section 119 of the Evidence Act reads, thus:
"119. Witness unable to communicate verbally.-A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open court, evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement and such statement shall be videographed."
29. The Court while recording the evidence of a dumb witness, must record the signs as well as the interpretations of the interpreter and then only it becomes admissible under the Indian Evidence Act. Therefore, it has to be seen whether the learned Special Judge recorded the evidence of dumb witness PW.3 as stated above. The Court also should see what is the evidence placed on record so as to sustain conviction.
30. It is with this background, the testimonies of PW.1, PW.5, PW.8 and the testimony of victim PW.3 coupled with medical evidence of PW.6 and PW.7 have to be 26 Crl.A. NO.11/2018 re-appreciated to find out whether the judgment of acquittal of the accused is sustainable.
31. It is well settled principle of law that the evidence has to be read as a whole. It is the function of the Court to separate the grains from chaff. No hard and fast rule can be laid down for appreciation of evidence. It is after all a question of fact and each case has to be decided on facts as they stand in that particular case. A duty is also cast upon the Court to see that no person committing an offence should go scot-free. It is with this background, the evidence has to be scrutinized.
32. The evidence of PW.3-victim shows that she is dumb and deaf witness. According to the victim, she used to tell by making signs and hand gestures. She was knowing only the words (amma...., abba..... and bayya......). It is her evidence through signs and hand gestures that she showed her finger and kept in mouth to the suggestion of interpreter as to what happened to her by the accused. She 27 Crl.A. NO.11/2018 also showed by signs that on her chest, the accused scratched with his nails and caused bite mark. The interpreter has not stated anything with regard to the sexual assault or penetrative sexual assault alleged to have been made by the accused against the victim nor the interpreter interprets in such a manner that the gestures made by the victim by showing her finger in her mouth means is penetrative sexual assault.
33. PWs.1, 5 and 8- the mother, aunt and grandmother of the victim are the hear-say witnesses and they have stated that soon after the incident, they came to know about the incident through PW.1. PW.4-the interpreter, has translated the statement of deaf and dumb witness in the Court. She has stated on oath that she interpreted the signs and hand gestures made by the victim- PW.3. PW.4 has not at all stated on oath about the ingredient of Section 4 of POCSO Act and Section 376 IPC. 28 Crl.A. NO.11/2018 Hence, the prosecution failed to elicit the requirement of Section 4 of POCSO Act and Section 376 of IPC.
34. PW.9-Nagamma the PSI of Women Police Station, Davanagere, received the complaint and registered the case on 31.10.2015 and sent FIR-Ex.P10 to the Court. She sent the victim for medical examination to Chigateri General Hospital, Davanagere.
35. PW.10-Sanganatha, the Police Inspector has stated that on 01.11.2015, he visited the scene of occurrence, drew spot panchanama as per Ex.P3, arrested the accused, sent the accused to Chigateri General Hospital, Davanagere for medical examination. On 04.11.2015, he sent the victim to the Court for recording statement of the victim under Section 164 of Cr.P.C and he also recorded statements of the other witnesses. On 17.11.2015, he secured documents Exs.P6 to P9, FSL report, medical report of the victim, medical report of the accused and dental report of the victim. He secured the articles from the 29 Crl.A. NO.11/2018 Medical Officer, who collected those articles from the accused and the victim and sent the same to Forensic Science Laboratory for chemical examination. On 15.12.2015, he completed the investigation and filed the charge sheet pending receipt of FSL report and final opinion of the doctor. It is his further evidence that on 21.01.2016, the Circle Police Inspector -Gajendrappa, received FSL report and secured final opinion of the doctor and later submitted the final opinion before the Court on 27.01.2016. The evidence of PWs.9 and 10, who are the Investigating Officers, is not of any consequences.
36. PW.6-Dr. Nagaveni S.K., in her evidence has stated that she was working as an Eye Specialist at Chigateri General Hospital, Davanagere. She examined the victim on 31.10.2015, who was brought by Women Police, Davanagere. On examination, she found the following injures:-
1. Contusion over the lower part of the left breast.30 Crl.A. NO.11/2018
2. Nail prick mark 2-3 over the left and right breast, 1/2 x 1cm, 1/2 x 1/2cms,
3. Greenish black colour patch over the left breast on lateral aspect.
She further stated that there is no external injury over vulva and hymen is intact. PW.6 has opined that except injuries on chest of the victim, there are no other external injuries on her person. As per the FSL report- ExP6, seminal stains were not detected on item Nos.1,3, 4, 5, 6, 8, 9, 10, 11, 12 and 13. Skin tissue was not detected on item Nos.2 and 7. Foreign hairs were not detected in item Nos.1 and 8. Based on clinical examination and FSL report, there is no evidence to suggest the recent sexual intercourse. It is no doubt true that PW.6 Doctor opined that in the circumstances even in case of rape, hymen would not be ruptured. But, in the present case, what we are concerned is as to whether there are any symptoms of rape or any penetration has taken place. It is clear from the evidence of mother of the victim that the victim is aged about 15 years. 31 Crl.A. NO.11/2018 Even if assuming for a while that forcible penetrative sexual assault had taken place on a girl, aged about 15 to 17 years, it is needless to say that there will be rupture of vagina at least with some tear. The Doctor who examined the victim PW.3, did not find any injury over the private parts. Therefore, there could not have been any penetration so as to hold that rape or any penetrative sexual assault has taken place against the victim. If some injuries or lacerations, abrasions or swelling were found over the vaginal portion, it could have established that there is penetration and that a forcible sexual intercourse had taken place. But, there is no such acceptable evidence available on record. Therefore, only on the ground that the hymen may or may not be ruptured itself, that by itself, is not sufficient in the present case to hold that the penetrative sexual assault has taken place.
37. PW.7-Dr. L. Ashok, Dentist, Bapuji Dental Hospital, Davanagere, in his evidence, has stated that on 32 Crl.A. NO.11/2018 09.11.2015, the doctors of CG Hospital, Davanagere sent the victim to him for ascertaining her age. Hence, he examined the victim and found that her third molar tooth was not developed. The Doctor followed various procedures as contemplated under the Standard literature in the textbook, titled, "Wheeler's Dental Anatomy and Physiology and Occlusion 9th edition, wherein it is held that complete root formation of 35, 45 occurs at 13-14 years of age and the complete root formation of 17 and 27 occurs at 14-15 years of age. The 1/4th root formation of 38, 48 occur at 15.2 years of age. According to standard literature, the age of the victim was estimated to be 15 years (+)/(-) 2 years. Hence, he was of the opinion that the victim was aged about 15 years (+) or (-) 2 years. Hence, he issued his final opinion as per Ex.P9. It shows that as on the date of the incident, the victim was aged about 15 years + or - two years, which comes to 17 years, hence, 33 Crl.A. NO.11/2018 PW.3 victim has to be considered as a child as defined under section 2(d) of POCSO Act, 2012.
38. On perusal of the entire case of the prosecution, the accused has denied all the allegations made against him with regard to the alleged act of penetrative sexual assault, voluntarily caused hurt on the victim(PW-3) and criminal intimidation made to her, as contended by the prosecution. The defence of the accused is that, a false case has been foisted against him and he did not commit any such act. His further defence was, father of victim was due to pay daily wages and as the accused started to work in flower shop of uncle of victim, this case has been foisted.
39. On the contrary, on perusal of the evidence of PW.3, the victim, PW.4-Interpreter, PW.1-mother of victim, PW.5-Aunt of victim and PW.8- Grand mother of victim, have in categorical terms have stated that the accused entered the house of victim, the accused touched her private organ, thereby sexually assaulted the victim, made 34 Crl.A. NO.11/2018 nails marks on her chest and made bite marks with teeth on her chest. He also made criminal intimidation to finish her, if she reveals said fact to anybody. However, nothing worth is elicited by the accused to disbelieve the evidence of these witnesses with regard to the accused committing act of sexual assault by touching private organ of the victim-PW.3, caused injury on her chest with his nail and teeth. The accused has not elicited any ill-will as suggested by the defence between the accused and victim or her family members. The accused merely relied upon some minor contradictions appeared in the evidence of PW.1, 3, 5 and 8 to disbelieve their evidence, but, those contradictions will not go to the very root of the case.
40. From the perusal of the prosecution case, it appears that, victim was a minor girl, aged about 17 years, as per the report of Dentist-Ex-P9. The accused has not disputed the contents of Ex-P9 and it was issued by competent authority. Under such circumstances, the 35 Crl.A. NO.11/2018 learned Addl. SPP vehemently argued and submitted that, all the prosecution witnesses have supported the case of prosecution and the fact the victim was minor then and therefore the Special court ought to have drawn the presumption available under Section 29 of the POCSO Act,2012.
41. Section 29 of the POCSO Act, 2012 provides for presumption as to certain offences under Sections 3, 5, 7 and 9 of the Act is material in the realm of assessment of evidence as the accused is expected to effectively rebut this presumption in case main ingredients are established by the prosecution. Section 29 of POSCO Act, 2012 reads as follows:-
"Section 29. Presumption as to certain offences.
-Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."36 Crl.A. NO.11/2018
42. In the present case, the medical evidence being negative as to penetrative assault on the victim, having not noticed any injury over the private part and there being no penetration, the evidence of PWs.1 and 3 to the effect that the accused committed penetrative sexual assault on the victim, cannot be accepted. Further, the victim and interpreter have not stated on oath that the accused committed rape or penetrative sexual assault against the victim. They merely stated that accused touched the private parts of the victim, made bite marks on the chest and scratched on the breast with nails. This part of the evidence is corroborated by the medical evidence.
43. We have perused the entire evidence on record and considered the arguments. The evidence of PW.3 victim shows that she being a girl of tender age and deaf and dumb, gave evidence in her own signs. Her evidence clearly discloses as to how the accused committed sexual assault on her and caused injury on her breast. She revealed the 37 Crl.A. NO.11/2018 incident before her mother, grandmother and aunt as to how she was subjected to sexual assault by the accused. The victim-PW.3 has stated in her examination-in-chief that accused committed sexual assault, but, the case of prosecution is that accused committed penetrative sexual assault on the victim. Further, the victim-PW3 in her statement before the Magistrate recorded under Section 164 of the Cr.P.C., has stated that the accused caused injury on her breast, she was subjected to sexual assault and the accused had committed penetrative sexual assault on her. However, the evidence of the victim before the Court and the evidence of Medical officer is not corroborated with the statement made by the victim under section 164 Cr.P.C. The statement made under section 164 Cr.P.C. is only a corroborative piece of evidence and not a substantive piece of evidence. Therefore, if the testimony of victim is again subjected to scrutiny, it appears that she has given a vivid account of the incident. She has clearly 38 Crl.A. NO.11/2018 showed through signs as to how the accused abused her sexually. In Ex.P4-the statement given by the victim before the Magistrate under Section 164 of Cr.P.C, she has clearly stated about the act of accused of having committed penetrative sexual assault on the victim, but, before the Court, she has not revealed the fact that the accused committed penetrative sexual assault on her. Even the prosecution has not bothered to pose question to the victim about the omissions made by the victim as to the penetrative sexual assault made on her.
44. There are minor discrepancies in the statement made by the victim under Section 164 of Cr.P.C and the evidence tendered by the victim-PW3. The thrust of her evidence shows that the accused committed sexual assault on the victim. In such circumstances, the evidence of the victim and the medical evidence would establish the charge of sexual assault and not penetrative sexual assault. In order to corroborate the oral testimony of the victim, PW6 39 Crl.A. NO.11/2018 doctor who examined the victim has stated that the victim was not subjected to any penetrative sexual assault and there were no external injuries all over the body except on the breast, hymen was not torn and there was no evidence of recent sexual intercourse on the victim. In the light of the medical evidence and the testimony of the victim, the prosecution has been able to prove the ingredient of Sections 7 and 8 of POCSO Act, which read as under:
Section 7. Sexual Assault- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
Section 8. Punishment for sexual assault- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."40 Crl.A. NO.11/2018
45. The question which would however arise for our consideration is as to whether the charges framed against the accused under Sections 376 and 506 of IPC and Section 4 of POCSO Act would be justified and as to whether the case would qualify to be one of penetrative sexual assault or sexual assault.
46. On this aspect, the evidence of PW.3 victim and PW.6 doctor does not establish the same. So far as the evidence of PWs.1, 5 and 8, they are hearsay witnesses, who are none other the, mother, aunt and grandmother of the victim. The evidence of PW.3-the victim is not categorical, in as much as, the victim has alleged that the accused committed penetrative sexual assault. In fact the very conclusion reached by the Special Court that the allegation of sexual assault has not been established by the prosecution against the accused, is not in accordance with law.
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47. In that circumstances, the charge of rape as contemplated under Section 376 IPC and penetrative sexual assault as contemplated under Section 4 of POCSO Act have not been established with convincing evidence. However, having already noted that the incident of attempt to rape or sexual assault alleged to have been established, it would be a case to convict the accused under Section 8 of POCSO Act.
48. So far as Section 324 of IPC, it is evident that PW.1 the mother of the victim, PW.3-victim and PW.6 doctor in categorical terms have stated that there is bite mark on the chest of the victim, which shows that the accused caused injuries on the breast of the victim, which would attract Section 324 of IPC.
49. Even though the prosecution was able to place sufficient materials to prove the alleged guilt against accused with regard to Section 8 of POCSO Act and Section 324 of IPC, however, the Special Court has erred in 42 Crl.A. NO.11/2018 appreciating the materials placed before it in proper prospective. The Special Court mainly relied upon the oral testimonies of PWs.1, 3 to 5, and PW.8 and particularly based on medical evidence, proceeded to acquit the accused and held that it was not an act of rape.
50. Furthermore, the learned Special Court adopted its own methodology of calculating the age of the victim girl, based upon the statement made by her mother i.e., PW.1. Hence, the Special Court has not drawn presumption under Section 29 of POCSO Act in respect of Section 8 of the Act. It is these reasonings given by the Sessions Judge's Court, which is now proved to be not proper reasonings, which has been relied on to pronounce the impugned judgment of acquittal against the accused/respondent No.1. Since the finding of the Special Court is now proved to be erroneous and since, the prosecution has proved the alleged guilt of the accused for the offence under Section 8 of POCSO Act and Section 324 43 Crl.A. NO.11/2018 of IPC beyond reasonable doubt, the impugned judgment passed by the Special Court warrants interference at the hands of this Court and the criminal appeal deserves to be partly allowed. Accordingly, we proceed to pass the following:
ORDER The Criminal Appeal stands partly allowed.
The judgment in Sessions Case No.11/2016 dated 05.05.2017 passed by II Additional District and Sessions Judge and Special Judge, Davangere, acquitting the accused of the offences punishable under Sections 376, 324 and 506 of IPC and Sections 4 and 8 of POCSO Act, stands modified as under:
The accused is acquitted of the offences punishable under Section 4 of POCSO Act and Sections 376 and 506 IPC.44 Crl.A. NO.11/2018
The accused is convicted for the offences punishable under Section 8 of POCSO Act and Section 324 of IPC.
Call to hear on quantum of sentence.
Sd/-
JUDGE Sd/-
JUDGE *MN/-45 Crl.A. NO.11/2018
Dr.HBPSJ & VNTJ:-
02.04.2024 HEARING ON SENTENCE Heard the learned counsel from both side on sentence part.
The learned counsel for the appellant/State submitted that the matter is of the year 2015 and the accused has committed grave offence under section POCSO Act, 2012, that too, against the deaf-and-dumb girl and hence, he prayed for awarding maximum sentence for the offences for which the respondent/accused is convicted.
The learned counsel for the respondent/accused submitted that the accused is a coolie and he has to look after his parents. The accused hails from a respectable family and hence prays for taking a lenient view.
It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be 46 Crl.A. NO.11/2018 proportionate to the guilt for which the accused is found guilty of.
ORDER ON SENTENCE [1] The accused - Shaukath Ali, son of Shekh Yousuf, resident of H.K.R Circle, Davanagere-570 001, is sentenced to undergo simple imprisonment for a period of three years and to pay a fine of `5,000/-(Rupees Five Thousand only), in case of default of payment of fine, to under simple imprisonment for a further period of six months, for the offence punishable under Section 8 of The Protection of Children from Sexual Offences Act, 2012.
[2] The accused - Shaukath Ali, is further sentenced to undergo simple imprisonment for a period of two years and to pay a fine of `3,000/- (Rupees Three Thousand only), in case of default of payment of fine, to under simple imprisonment for a further period of four months, for the offence punishable under Section 324 of the Indian Penal Code, 1860.
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[3] The accused shall surrender before the learned Special Judge's Court within fortyfive (45) days from today and serve the sentence as ordered above by this Court and both the sentences shall run concurrently.
[4]Accused is entitled for set of under section 428 Cr.P.C. for the period of judicial custody already undergone by him.
[5] Out of the fine amount paid by the accused, a sum of `7000/- be paid to the victim as compensation to the victim under Section 357A of Code of Criminal Procedure, 1973( Victim Compensation Scheme).
[6] The remaining sum of `1,000/- shall go to the State.
[7] A free copy of this judgment be furnished to the accused immediately by the Registry.
The Court, while acknowledging the services rendered by the learned Amicus Curiae for respondent No.2- 48 Crl.A. NO.11/2018 Smt. Archana K.M., recommends honorarium of a sum of not less than `6,000/- payable to her by the Registry.
Registry to transmit a copy of this judgment along with Special Court records to the concerned Special Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE *MN/-