Karnataka High Court
B C Ravi vs State Of Karnataka on 4 March, 2024
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NC: 2024:KHC:9075
CRL.A No. 27 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.27 OF 2014
BETWEEN:
B.C. RAVI
S/O. B.S. CHAND RAJU
AGED ABOUT 39 YEARS
OCC: METER READER, MESCOM
MUDIGERE
RESIDENT OF NO.A-79, BASAVESHWARA ROAD
SOMAVARPETE, KODAGU DISTRICT.
...APPELLANT
(BY SRI HITESH GOWDA B.J., ADVOCATE, FOR
SRI S. NAGENDRA DIKSHIT)
AND:
STATE OF KARNATAKA
BY MUDIGERE POLICE STATION
CHIKKAMAGALUR DISTRICT
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT BUILDING
Digitally signed by BENGALURU.
MOUNESHWARAPPA
NAGARATHNA ...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA (BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 3-12-2013
PASSED BY THE PRINCIPAL SESSIONS AND SPECIAL JUDGE,
CHIKMAGALUR, IN SPECIAL CASE (IPC AND PCSO) NO.3 OF 2013,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 354 OF IPC AND SECTION 12 OF
POCSO ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:9075
CRL.A No. 27 of 2014
JUDGMENT
This appeal is filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973, (for short, 'Cr.P.C.') to set aside the judgment of conviction and order on sentence dated 3-12-2013 passed by the Principal Sessions and Special Judge at Chikmagalur, in Special Case (IPC & PCSO) No.3 of 2013 for the offences punishable under Section 354 of the Indian Penal Code, 1860 (for short, 'IPC') and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act').
2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is the sole accused and the respondent-State is the complainant.
3. The brief facts of the prosecution case is that, on 16-1-2013 at about 2:45 p.m., the accused entered the house of PW2, the victim girl, aged about 11 years, on the pretext of issuing electrical bill, took her near the house of -3- NC: 2024:KHC:9075 CRL.A No. 27 of 2014 PW5/CW6-Venkatesh situated at Kellur Village in Mudigere Taluk, sexually harassed her and used criminal force by unbuttoning her blouse, hugged her, intending to outrage her modesty, committed the offences alleged. PWs.3 and 4-neighbours, seeing the incident, raised hue and cry, and thus the accused escaped from the spot. The victim, PWs.3 and 4 informed the said incident to PW1, foster mother of the victim. Hence, PW1 lodged the complaint as per Ex.P1. On the basis of the complaint, the Police registered a case which led to registration of FIR and Investigation. Later, the Investigating Officer visited the scene of offence, recorded the statements of the witnesses and filed the charge-sheet against the accused for the offences punishable under Section 354 of IPC and Section 12 of POCSO Act.
4. After receipt of the charge-sheet, the trial Court took cognizance of the offences against the accused under Section 190(1)(b) of Cr.P.C., secured the presence of the accused, framed the charges against the accused for the -4- NC: 2024:KHC:9075 CRL.A No. 27 of 2014 aforesaid offences. He pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its case examined in all fourteen witnesses as PWs.1 to 14, got marked seventeen documents as per Exs.P.1 to P.17 and closed its side of evidence. At the conclusion of the trial, the statement of the accused was recorded under Section 313 of the Cr.P.C. by explaining the incriminating material available in the prosecution case and the case of the accused was of total denial.
6. After hearing the prosecution and the defence, the trial Court convicted the accused for the offences punishable under Section 354 of IPC and Section 12 of POCSO Act considering the oral testimonies of PW6-Asha, Head Mistress, who issued Ex.P10-Date of Birth Certificate, PW7-Dr. P.Y. Kumar, who examined the victim girl, PW12- Manjunatha Gowda, Head Constable, who registered the case, PW13-Anantha Padmanabha, Sub-Inspector of Police, and PW14-Padma Prasad, Civil Judge and J.M.F.C., -5- NC: 2024:KHC:9075 CRL.A No. 27 of 2014 Mudigere, who recorded the statement of the accused under Section 313 of Cr.P.C. Further, the trial Court sentenced the accused to various terms of the sentence and imprisonment as per the table below:
Sl. Convicted Sentence Fine in Default No. for the Rs. Sentence Offence
1. 354 of IPC RI for 3 500/- Imprisonment months for 10 days
2. 12 of POCSO RI for 3 5,000/- Imprisonment Act years for 3 months
7. Aggrieved by the judgment of conviction and order on sentence passed by the trial Court, the accused has preferred this appeal.
8. Heard the submission of the learned counsel for the appellant/accused and the learned High Court Government Pleader for the respondent-State.
9. Sri Hitesh Gowda B. J., learned counsel for the appellant/accused, has contended that none of the material witnesses has supported the case of the prosecution. PW1-foster mother of the victim has denied -6- NC: 2024:KHC:9075 CRL.A No. 27 of 2014 the contents of Ex.P1-complaint and has even deposed that her foster daughter-PW2 never stated anything about the incident against the accused. She has even denied the Police conducting Ex.P2-spot mahazar in her presence. The victim has denied the prosecution case and she has stated that the accused did nothing to her. The eyewitnesses to the incident, PW3-Jaya and PW4-Prema, have denied the incident and also stated that they have not given statements before the Police as per Exs.P7 and P8. The evidence of PWs.5 and 9 are hearsay and they have denied the case of the prosecution. The witnesses to spot mahazar-Ex.P2, i.e PWs.10 and 11 also denied to have conducted spot mahazar in their presence. Under such circumstances, the trial Court ought to have acquitted the accused, but has convicted the accused on the basis of oral evidence of PW14-Judicial Magistrate, who recorded the statement of the victim under Section 164 of Cr.P.C. It is contended that the statement of the witness under Section 164 of Cr.P.C. cannot be treated as substantive evidence and no conviction can be based upon -7- NC: 2024:KHC:9075 CRL.A No. 27 of 2014 the strength of such statement. Victim's statement recorded under Section 164 of Cr.P.C. can only be used to corroborate the statement of a witness, or to contradict her statement. The trial Court relied upon the evidence of PW12-Manjunatha Gowda, Head Constable, who received the complaint and registered the case. In fact, this reliance placed by the trial Court is erroneous with the factual statement which finds place in the FIR-Ex.P15 as the same is not deposed by PW1 in her evidence or any other eyewitnesses, especially, PWs.3, 4 and neighbouring witnesses, PWs.5 and 9. Hence, the evidence of PW12- Head Constable and PW14-Magistrate cannot be corroborated with the evidence of PW2, the victim, eyewitnesses and other circumstantial witnesses. The trial Court, in the absence of material particulars, drew presumption under Section 29 of POCSO Act. In fact, presumption for Section 12 of POCSO Act cannot be drawn under Section 29 of POCSO Act. But the trial Court drew presumption under the aforesaid provisions and convicted the accused in the absence of incriminating material -8- NC: 2024:KHC:9075 CRL.A No. 27 of 2014 against him. Hence, the conviction and sentence passed against the accused is perverse. On all these grounds, he prayed to allow the appeal.
10. Sri Vinay Mahadevaiah, learned High Court Government Pleader, has contended that the accused has committed the offence against PW2, a minor. The victim has clearly stated before the Magistrate regarding the manner of sexual assault and outraging modesty of the victim made by the accused while giving her statement under Section 164 of Cr.P.C., and PW14-Magistrate has also categorically stated that the victim stated about the act done by the accused. But, the accused has not placed any contra-evidence to disbelieve the prosecution version. The accused has pleaded that a false complaint has been lodged against him due to animosity, but in the prosecution case, such rivalry is not forthcoming by the defence. It is contended that the trial Court, based upon the oral testimonies of PW14-Magistrate, PW12- Manjunatha Gowda, Head Constable, PW13-Investigating -9- NC: 2024:KHC:9075 CRL.A No. 27 of 2014 Officer, evidence of PW6-Head Mistress, who issued Date of Birth Certificate as per Ex.P10 and PW7- Dr. P. Y. Kumar, who examined the victim and issued Wound Certificate as per Ex.P11, has convicted the accused. Therefore, the trial Court has rightly drawn presumption under Section 29 of POCSO Act and convicted the accused for the aforesaid offences. Hence, he prayed to dismiss the appeal.
11. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant/accused and the learned High Court Government Pleader for the respondent-State and perused the entire material including the original records.
12. In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for consideration of the Court is:
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 i. Whether the prosecution has proved its case beyond reasonable doubt that on 16-1-2013 at 2:45 p.m., near the house of PW5-Venkatesh situate at Kellur Village, Mudigere Taluk, the accused committed sexual harassment on the victim-PW2 and used criminal force by unbuttoning the blouse and by hugging her, intending thereby to outrage the modesty and thereby, committed offences punishable under Section 354 of IPC and Section 12 of POCSO Act?
ii. Whether the appellant/accused has made out a case to interfere with the impugned judgment passed by the trial Court in convicting the accused for the offences under Section 354 of IPC and Section 12 of POCSO Act?
13. Point No.1: The sum and substance of the prosecution case is that on 16-1-2013 at about 2:45 p.m. near the house of PW5, the accused sexually assaulted and outraged the modesty of PW2-victim girl knowing that she was a minor, aged about 11 years. In order to establish its case, the prosecution examined PW1-Rathna, foster mother of the victim. In her evidence, she has
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 stated that the victim-PW2 is her foster daughter and she brought the victim-PW2 since her childhood. The victim was aged about 11 years and was studying in 8th Standard at MHPS School, Mudigere. It was her evidence that, during the year 2013, one day, she had been to coolie and returned at 2:45 p.m., at that time, the victim was in her house, the accused came to her house for issue of electricity bill. As there was issue of electricity bill, she lodged a complaint to the Police. The Police came to her house and took her signature on Exs.P1 and P2, however, she denied the contents of Exs.P1 and 2. Hence, PW1 was treated to be hostile to the case of the prosecution. In the cross-examination, she denied to have lodged the complaint as per Ex.P1 and affixing her signature on Ex.P2-spot mahazar.
14. PW2-victim has stated that during the year 2013, she was studying in 8th standard at MHPS School, Mudigere. The accused did not come to her house and has not done anything to her and she did not tell anything to
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 PW1 and her neighbours. However, she has stated that, she has given statement to the Magistrate as per Ex.P5. Hence, she turned hostile to the case of the prosecution. In the cross-examination, she denied her statement said to have given before the Magistrate stating that "on 16-1-2013, she went to School at about 8:00 a.m. and came to her house at 2:30 p.m. When she came back from the School, she was changing her dress by closing the door, at that time, somebody knocked the door. When she opened the door, the accused was present and the accused asked her as to anybody present in the house apart from her. When she told that nobody was there, in the guise of giving electricity bill, the accused took her by holding hands near the house of PW9-Vijaya, made her to sit on katte and put his hand on her, unbuttoned her shirt, hugged her in spite of her resistance and was putting her hand all over her person. The accused escaped from the spot by seeing PWs.3 and 4 who came there by making hue and cry. Immediately, PWs.1 and 9 came there. Hence, she narrated the entire incident to them."
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014
15. PW3-Jaya and PW4-Prema are neighbours of PWs.1 and 2 and they are eyewitnesses to the incident. They have turned hostile to the case of the prosecution.
16. PW5-Venkatesh and PW9-Vijaya (wife of PW5) are the neighbours of the victim, who came to the spot immediately after the incident. They have turned hostile to the case of the prosecution.
17. PW6-Asha, Head Mistress of MHPS, who furnished the Date of Birth Certificate of the victim girl as per Ex.P10. As per Ex.P10, the date of birth of the victim is 10-5-2001.
18. PW7-Dr. P.Y. Kumar, Medical Officer, who examined the victim and issued Wound Certificate as per Ex.P11. In his evidence, he has stated that he examined the victim and no injuries were found on the person of the victim.
19. PW8-Chandrashekar, Project Co-ordinator, Prasanna Technology, Mangaluru, has stated that the
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 accused was employed as a Meter Reader in the Village on behalf of MESCOM. Accordingly, he issued his report as per Ex.P13.
20. PW10-Anand and PW11-Avinash are witnesses to spot mahazar-Ex.P2. They turned hostile to the case of the prosecution.
21. PW12-Manjunatha Gowda, Head Constable, has stated that on 17-1-2013 at about 1:30 p.m., he received the complaint as per Ex.P1 and registered an FIR as per Ex.P15 and on the same day, he sent the victim girl along with CW13 for medical examination.
22. PW13-Anantha Padmanabha, Sub-Inspector of Police, who investigated the matter and filed the charge- sheet against the accused.
23. PW14-Padma Prasad, Civil Judge and J.M.F.C., Mudigere, has stated that on 18-1-2013, he recorded the statement of the victim under Section 164 of Cr.P.C. as per Ex.P5. He withstood the test of cross-examination.
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 Except few suggestions, nothing was suggested to him as to why he recorded Ex.P5-statement of the victim.
24. On perusal of the prosecution case, it appears that victim was a minor girl, during the year 2013. In order to substantiate the same, the prosecution got examined PW6, Head Mistress, who issued Ex.P10-Date of Birth Certificate. As per Ex.P10, the date of birth of PW2 is 10-5-2001. Hence, as on the date of alleged incident, the victim was aged about eleven years and seven months. The accused has not disputed the contents of Ex.P10. The Date of Birth Certificate is issued by the competent authority based on the School Admission Register and in performance of the public duty. The accused has not disputed the correctness of Ex.P10. Hence, it is proved that the date of birth of the victim is 10-5-2001. Under such circumstances, the learned High Court Government Pleader vehemently argued and submitted that Investigating Officer and PW14-Civil Judge and J.M.F.C., who recorded the statement of the victim, have supported
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 the case of the prosecution and the fact that the victim was minor then and therefore, the trial Court has rightly drawn the presumption available under Section 29 of POCSO Act.
25. A perusal of the finding recorded by the trial Court, it would show that the trial Court has accorded importance to the evidence of hostile witnesses. On re- appreciation of their evidence, I am satisfied that their evidence is neither reliable nor sufficient to prove the incident of outraging the modesty and sexually harassing the victim. It is to be noted that their statements recorded by the Police during the course of investigation under Section 161 of Cr.P.C. could only be used for the purpose of finding omissions and contradictions. Similarly, the statement of the victim recorded under Section 164 of Cr.P.C. by the Magistrate cannot be used as substantive evidence and that statement could be used for the purpose of contradiction and corroboration. The question of making use of that statement for the purpose of corroboration
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 would be out of question, inasmuch as the victim has turned hostile to the prosecution. It is to be noted that in a criminal trial, the prosecution has to prove the guilt of the accused beyond all reasonable doubt. If there is a doubt in the case of the prosecution with regard to the involvement of the accused, in the commission of crime, then benefit must go to the accused. It seems that the trial Court in the absence of material on record ought to have raised suspicion about the involvement of the accused in the commission of the crime. It is a settled legal position that the suspicion, however, strong it may be, cannot be substituted for the proof. The accused cannot be convicted on the basis of mere suspicion. In the facts and circumstances, in my opinion in this case, the prosecution has failed to prove the guilt of the accused. A star witness, PW2, has turned hostile to the case of the prosecution. It is to be noted that her statement recorded under Section 164 of the Cr.P.C. cannot be used as a substantive piece of evidence as she did not support the case of the prosecution. In the facts and circumstances, I am of the
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 view that in the teeth of the available evidence, the conviction and sentence awarded to the accused cannot be sustained. The prosecution has failed to bring home the guilt against the appellant beyond all reasonable doubt.
26. Further, the accused has denied all the allegations made against him with regard to the alleged act of outraging modesty of PW2-victim and sexually harassing a child as contended by the prosecution.
27. In criminal cases, the burden of proof, proving the prosecution case is on the prosecution. The standard of proof required is "proof beyond reasonable doubt" and this standard is higher than the "standard of preponderance of probability" prescribed for every case. The Hon'ble Supreme Court in the case of STATE OF U.P. vs. KRISHNA GOPAL AND ANTOHER reported in (1988) 4 SCC 302 has eloquently explained the concept of "proof beyond reasonable doubt".
"25. xxx xxx xxx
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case.
xxx xxx xxx Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over- emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and,
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice."
28. It is pertinent to keep in mind the statutory presumption under Section 29 of POCSO Act while assessing the evidence. In the realm of evidence, this statutory presumption through rebuttable one plays a vital role. Justice Krishna Iyer made eloquent observation in (1973) 2 SCC 793 in the case of SHIVAJI SAHABRAO BOBADE AND ANOTHER vs. STATE OF MAHARASHTRA, which reads as under:
"The Judicial instrument has a public accountability. The cherished principle or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but once innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise, any practical system of justice will break down and lose credibility with the community."
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29. Further, Section 29 of POCSO Act, provides for presumption as to certain offences under Sections 3, 5, 7 and 9 of POCSO 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.
30. Section 29 of POCSO Act reads as follows:
"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."
31. On perusal of the evidence of the prosecution witnesses, the trial Court found that there is clear, consisting and convincing evidence in the prosecution witnesses and the trial Court convicted the accused for the aforesaid offences by drawing presumption under Section 29 of POCSO Act, but the trial Court ought not to have raised presumption under Section 29 of POCSO Act as
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 presumption is not available for Section 11 made punishable under Section 12 of POCSO Act.
32. Sections 11 and 12 of POCSO Act read as under:
11. Sexual harassment.-A person is said to commit sexual harassment upon a child when such person with sexual intent,--
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
12. Punishment for sexual harassment.- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
33. Learned counsel for the appellant further contended that there is no corroborative evidence with regard to the alleged act alleged to have been committed by the accused on the relevant date, time and place. The evidence of the victim-PW2, her foster mother-PW1, eyewitness to the incident-PWs.3 and 4, neighbouring witnesses-PWs.5 and 9 have not supported the case of the prosecution. Therefore, the guilt of the accused is not fully established by the prosecution case. In the absence of any incriminating material against the accused, the trial Court has wrongly drew presumption under Section 29 of POCSO Act. On perusal of Section 29 of POCSO Act,
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 whenever there is evidence of material witnesses with regard to the offences defined under Sections 3, 5, 7 and 9 of POCSO Act, it is bound on duty of the Court to draw presumption under Section 29 of POCSO Act. It is the primary duty of the prosecution to prove its case, but it cannot shift the burden on the accused. Firstly, the prosecution must establish its case and then the burden shifts on the accused. In the instant case, the primary burden casted on the prosecution has not been successfully proved by the prosecution. Therefore, the trial Court has wrongly drawn presumption under Section 29 of POCSO Act.
34. On the other hand, the prosecution failed to prove its case beyond reasonable doubt and it also failed to discharge the burden casted upon it. Therefore, looking into any angle, the prosecution failed to prove its case beyond reasonable doubt that the accused outraged the modesty of the victim and sexually harassed her in the manner stated by the prosecution.
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35. In the facts and circumstances of the case, the prosecution has failed to prove its case beyond reasonable doubt. Hence, the trial Court has wrongly convicted the accused for the aforesaid offences. Hence, I answer point No.1 in the negative.
Point No.2: In view of the foregoing discussion on point No.1, the appeal filed by the accused deserves to be allowed. Hence, I proceed to pass the following:
ORDER i. The appeal filed by the appellant/accused is allowed.
ii. The judgment of conviction and order on sentence dated 3-12-2013 passed by the Principal Sessions and Special Judge at Chikmagalur, in Special Case (IPC & PCSO) No.3 of 2013, is hereby set aside.
iii. The appellant/accused is set at liberty, forthwith, if he is not required in any other case.
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NC: 2024:KHC:9075 CRL.A No. 27 of 2014 iv. The bail bonds of the appellant/accused and that of his sureties stands cancelled.
Registry is directed to send back the trial Court records to the concerned trial Court, forthwith.
Sd/-
JUDGE KVK List No.: 1 Sl No.: 5