Karnataka High Court
Venkatesh vs State Of Karnataka on 19 September, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1432/2019
Between:
Venkatesh
S/o Gundappa
Aged about 27 years
Coolie, R/at Kallathipura Village
Lingadahalli Hobli
Tarikere Taluk - 578 020. ... Appellant
(By Sri. Pratheep K.C., Advocate)
And:
State of Karnataka
State by Lingadahalli Police
Rep. by its
State Public Prosecutor
High Court of Karnataka
Bengaluru - 560 001. ... Respondent
(By Sri. M. Divakar Maddur, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. praying to set aside the judgment dated
01.07.2019 passed by the I Additional Sessions and
Special Judge, Chikkamagaluru in Spl.C.(PCSOA)
No.12/2018 - convicting the appellant/accused for the
-2-
offence punishable under Section 376(2) (i) of IPC and
under Section 5(m) read with 6 of Protection of Children
from Sexual Offences Act.
This Criminal Appeal is coming on for Admission,
this day, the Court delivered the following:
JUDGMENT
The appellant/accused is before this Court, challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Court of I Additional Sessions and Special Judge, Chikkamagaluru in Special Case (PCSOA) No.12/2018 dated 01.07.2019.
2. I have heard the learned counsel for the appellant/accused and learned High Court Government Pleader for the respondent-State.
3. The case of the prosecution in brief is that the victim is a minor girl aged about 8 years. On 15.12.2017, the parents had been to coolie work by leaving the victim in the house. At about 1.00 p.m., -3- when the victim and her friends were playing in front of their house, the accused called the victim by giving Rs.10/- and asked her to bring Kara-Mandakki (Mixer and rice bubbles). The victim along with her friend went to the shop of PW.3-Ramesh Kumar and brought Kara- Mandakki. Thereafter, the victim went inside the house of the accused and gave the same to the accused, when the victim tried to get back, the accused closed her mouth with hand and took her inside the house and laid her on the cot and committed forcible sexual intercourse with her. The victim returned to her house, narrated the incident to her mother and on the basis of the narration, CW.3 has filed a complaint. On the basis of the complaint, investigation was conducted and thereafter, the charge sheet was filed. The Special Court took the cognizance of the offence and secured the presence of the accused. After furnishing copy of the prosecution papers to the accused, he was heard regarding the charge. The charge was framed and read -4- over to the accused. The accused pleaded not guilty, he claims to be tried and as such, the trial was fixed.
4. To prove the case of the prosecution, prosecution got examined 17 witnesses as PWs.1 to P17 and got marked 26 documents as per Exs.P1 to P26 and 5 material objects as M.Os.1 to 5. Thereafter, the accused was examined by putting incriminating material as against him and the accused got examined two witnesses as DWs.1 and 2. Thereafter, the arguments were heard and the accused was convicted for the offence punishable under Section 376(2)(i) of IPC and also under Section 5(m) read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the Act" for short), challenging the same, the appellant/accused is before this Court.
-5-
5. Though the said case has been listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
6. The main grounds urged by the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the Court below is erroneous and not sustainable in law. Though PW.8-Doctor has stated that there is no penetrative sexual assault committed by the accused, ignoring the said evidence and Ex.P2-Medical examination report of the victim, which also clearly goes to show that hymen is intact and even the victim who came to be examined before the Court has also not specifically stated that there is penetrative sexual assault and no injuries were found over the body of the victim. As could be seen from the records, the trial Court has convicted the accused under Section 376 of IPC, which is not sustainable in law. When PW.8 examined the victim, she stated that if -6- really there is penetrative sexual assault committed by the accused on victim who is aged about 8 years, then definitely there would be injury to the private part of the victim and even hymen could have been ruptured. Under such circumstances, the trial Court has wrongly convicted the accused for the offence punishable under Section 376 (2)(i) of IPC and under Section 5(m) R/w Section 6 of the Act.
7. It is further submitted that the Court below has not appreciated the evidence in its right perspective. Though, the prosecution has utterly failed to prove the guilt of the accused, only on the basis of presumption and assumption the Court below has convicted the accused. He further submitted that the trial Court at the most could have convicted the accused for sexual assault under Section 7 and sentenced under Section 8 of the Act but not for the offence under Section 376 of IPC or under Section 5(m) and Section 6 of the Act. He -7- further submitted that the accused has clearly explained under Section 313 of Cr.P.C. that under what circumstances, a false complaint has been lodged against him and he has also got examined DWs.1 and 2. Without taking into consideration of the said fact, the trial Court has erroneously passed the impugned order. On these grounds, he prayed to allow the appeal and to set aside the impugned order of the trial Court.
8. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the appellant/accused has committed sexual assault on victim who is a minor. In her evidence as well as in the statement recorded under Section 164 of Cr.P.C. before the Magistrate, she has clearly stated that the accused after taking her inside the house made her to lie on the cot and sexually assaulted her and even, the Forensic Science Laboratory report clearly goes to show that the seminal stains were found on the -8- inner wear of the accused. It is his further submission that the evidence of the doctor has also corroborated with the evidence of victim-PW.1 and even, the friend who came to be examined as PW.4, she has also clearly stated that the accused took the victim inside the house and after sometime, she came out of the house, immediately thereafter, she has informed the said fact to PW.2 and PW.2 filed a complaint and the victim has been taken to doctor for examination. All these materials clearly go to show that accused sexually assaulted the victim. The trial Court after considering all the records has rightly come to the conclusion and rightly convicted the accused. No good grounds have been made out by the appellant/accused. On these grounds, he prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing -9- for the parties and perused the records including the lower court records.
10. It is the case of the prosecution that the accused took the victim who is a minor girl, aged about 8 years and committed forcible sexual assault on her. In order to substantiate the said fact, the prosecution got examined 17 witnesses, PW.1 is the victim, she has been examined. In her evidence she has deposed that her father had been to cut the woods and mother had been to coffee estate for working. Herself and her friend were playing, at that time, the accused came and asked them to bring Kara-Mandakki by giving Rs.10/- and they went and brought the same. Then the accused took the victim inside the house by closing her mouth and latched the door. Thereafter, he removed his clothes, laid on her and he made some dirt on her private part and thereafter, he opened the door and she has been sent out. She has further deposed that when her mother
- 10 -
came, she informed the said fact to her mother and also to her father. Then they took the victim to Shivamogga and there she has been examined by the doctor and she has also deposed that she has given her clothes and she has identified the clothes. They have been marked as M.O.Nos.1 and 2. During the course of cross- examination, she has deposed that her mother has brought her to the Court. She has further deposed that her mother told that what has been done by the accused to the victim to be deposed before the Court. Even to the suggestion that they told to tell her that the accused asked her to bring Kara-Mandakki and thereafter, he latched the door, removed his clothes and made dirt, she nodded her head before the Court to say it as correct. The other suggestions which have been made have been denied. She has also been further cross-examined, wherein, she has deposed that there were no injuries found on her private part but dirt was there. She has further deposed that the doctor has
- 11 -
collected the material, which found on her private part by swabbing and she has also admitted the fact that the doctor has collected the clothes. The other suggestions have been denied.
11. PW.2 is the mother of the victim, she has also deposed that she had been to work and at about 3.30 pm to 4.00 pm she came back and her daughter narrated about the incident. Thereafter, her husband came and she informed the same to her husband, then they have decided to file the complaint. Thereafter, filed a complaint and they took the victim to Lingadahalli and got examined. During the course of cross- examination, nothing has been elicited so as to discard the said evidence of the witness. PW.3 is the owner of the shop, he has deposed that at about 12.00 pm to 1.00 p.m., PWs.1 and 4 came and purchased the Kara- Mandakki by paying Rs.10/-, he has given the same and when he asked to whom they have purchased,
- 12 -
PWs.1 and 4 told the name of the accused. On next day, he came to know about the sexual assault on the minor girl. During the course of cross-examination, nothing has been elicited from the mouth of this witness. PW.4- Friend of the victim, she has also deposed that the victim and herself were playing near the house and the accused came and took the victim inside the house and thereafter, the act of the accused has been narrated to her. During the course of cross-examination, nothing has been elicited to discard the evidence of this witness. PW.5 is the spot mahazar pancha to Ex.P4 and PW.6 is the seizer mahazar pancha of the cloth of the victim and accused, which is marked as Exs.P8 and P9. PW.8 is the doctor, who examined the victim, in her evidence, she has deposed that on 16.12.2017 at about 4.41 am the victim was brought with a history of sexual assault and she has examined the victim with the consent of mother of the victim. She has given report as per Ex.P2. She has further deposed that she has given a history as
- 13 -
narrated by the victim and she had examined the private part of the victim. She further deposed that by examining M.O.No.1, some red and white stains were found and she collected the same and sent it for Forensic Science Laboratory. The Forensic Science Laboratory report is marked as Ex.P12, she further deposed that on M.O.No.1, seminal stains were found. On the basis of that, she has given her final opinion. In her opinion, she has stated that there is no signs suggestive of intercourse, but there is signs of genital assault of the victim. During the course of cross- examination, she has deposed that there is a possibility of nail scratch if there is a forcible sexual assault on the minor girl, also on back and other parts of the body if there is resistence. But however, she has deposed that since the victim is a minor, she may not have resisted and other suggestions have been denied. PW.9 is the Head Master of the school where the victim used to study and she has produced the document pertaining to
- 14 -
the victim and as per the record, the date of birth of the victim is 04.08.2011. During the course of cross- examination, nothing has been elicited from the mouth of this witness. PW.10 is the PDO, he has issued house property tax extract where the alleged incident said to have been taken place, which is marked as Exs.P18 and P19. PW.11 is also the doctor who examined the accused, in his opinion he has deposed that there is nothing to suggest that the accused is incapable of having sexual act and he has issued the said certificate as per Ex.P20. During the course of cross-examination, nothing has been elicited to discard the evidence. PW.12 is the A.S.I., who apprehended the accused on 16.12.2017 at about 8.30 a.m., brought him and produced before the investigating officer. PW.13 is the P.S.I., who took the victim to the hospital and recorded the statement of the mother of the victim as per Ex.P1 and registered the case and he has issued the First Information Report. During the course of cross-
- 15 -
examination, nothing has been elicited to discard his evidence. PW.14 is the C.P.I., who investigated and filed charge sheet against the accused. PW.15 is the W.P.C. who accompanied along with the victim and seized the articles and produced before the investigating officer by giving a report as per Ex.P9. PW.16 is the police constable, who took the accused and got examined before the doctor-PW.11, brought M.O.Nos.3 to 5 and produced by the investigating officer. PW.17 is the P.S.I., who partly investigated the case and thereafter, handed over further investigation to PW.14.
12. On the basis of the above evidence, this Court has to consider whether the contention raised by the learned counsel for the accused are justifiable. It is the specific contention of the learned counsel for the appellant that there is no penetrative sexual assault committed on the victim. For the purpose of brevity, I quote Section 375 of IPC, which reads as under:
- 16 -
"375. Rape - A man is said to commit "rape" if he-
(a) penetrates his penis, or any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, Under the circumstances falling under any of the following seven descriptions:-
First - Against her will.
Secondly - Without her consent.
- 17 -
Thirdly - With her consent, when her consent
has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under eighteen years of age.
Seventhly - When she is unable to communicate consent.
Explanation 1 - For the purposes of this section, "vagina" shall also include labia majora. Explanation 2 - Consent means an unequivocal voluntary agreement when the woman by words,
- 18 -
gestures or any form of verbal of non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1 - A medical procedure or intervention shall not constitution rape.
Exception 2 - Sexual procedure or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
13. In order to hold the accused liable, prosecution case must disclose that there is penetrative sexual assault committed by the accused. If there is penetrative sexual assault, then under such circumstances, the provisions of Section 375 of IPC attracts and the accused is liable to be convicted. It is the further contention of the learned counsel for the appellant/accused that even Section 5(m) of the Act is also not applicable to the present case of the accused,
- 19 -
so as to convict under Section 6 of the Act. For the purpose of brevity, I quote Section 5(m) of the Act, which reads as under:
"5(m) whoever commits penetrative sexual assault on a child below twelve years"
Even close reading of Section 5(m) of the Act, it indicates that 'penetrative sexual assault on a minor child who is below 12 years' is essential to attract the said section. In the instant case, the victim is 7 years which is not in dispute. Even the in-charge head master, who came to be examined before the Court as PW.9, in her evidence, has deposed the date of birth of the victim as 04.08.2011 and she has also produced Ex.P15 to substantiate the said fact.
14. As could be seen from Ex.P2-medical examination report of the victim, it clearly goes to show that it has been mentioned in examination report that the hymen is intact and even in the final opinion of
- 20 -
PW.8-the Doctor, who examined the victim has stated that there was no signs of suggestive of intercourse but signs of genital assault are present. Even as could be seen from the evidence of PW-1- the victim, she has deposed before the Court that she was taken inside the house and after disrobing the dress of himself and the victim, he slept on her and made some dirt on her private part. Even, in the evidence of PW.8-the Doctor, who came to be examined before the Court, she has deposed that there was no signs of sexual assault but however, there are some signs of genital sexual assault.
15. On going through all the evidence, which has been produced before the Court, it clearly goes to show that there is no penetrative sexual assault committed on the victim so as to attract the provisions of Section 376 of IPC and Section 5(m) of the Act. But however, on close reading of the evidences and Ex.P12-FSL report it clearly goes to show that the seminal stains were found
- 21 -
on innerwear of the victim. When there is no penetrative sexual assault, the seminal stains were found on the innerwear of the victim and even the evidence of PW.1 and the doctor has also clearly goes to show that the accused committed sexual assault. He took her by closing her mouth, made her to lie on the cot and thereafter, disrobed the clothes, slept on her and made dirt on her private part, that material clearly goes to show that the accused has committed sexual assault as contemplated under Section 7 of the Act. For the purpose of brevity, I quote Section 7 of the Act:
"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."
- 22 -
On close reading of the said Section, if a person with sexual intent involves in physical contact without penetration, then under such circumstances, it amounts to sexual assault. There is ample material to come to the conclusion that the accused has committed sexual assault on the victim. The Court below without looking into the said aspect of the matter, has wrongly convicted the accused for the offence punishable under Section 376(2)(i) of IPC and under Section 5(m) read with Section 6 of the Act.
16. In that light, the trial Court has committed an error and as such the judgment of the trial Court is deserves to be modified.
17. In the light of the discussion held by me above, the appellant/accused is convicted for the offence punishable under Section 7 of POCSO Act, 2012 and under Section 8 of the Act he is sentenced to undergo imprisonment for a period of four years and to
- 23 -
pay a fine of Rs.10,000/-, in default to undergo S.I. for a period of six months.
18. Accordingly, the appeal is partly allowed and the judgment of conviction and order of sentence passed by the I Additional Sessions and Special Judge, Chikkamagaluru in Special Case (PCSOA) No.12/2018 is modified to the extent as indicated above.
In view of disposal of the main appeal, I.A.No.1/2019 for suspension of sentence does not survive for consideration. Accordingly, I.A.No.1/2019 is also disposed of.
Accused is also entitled for set off under Section 428 of Cr.P.C. Out of the said fine amount of Rs.10,000/-, Rs.8,000/- shall be paid to the victim accordingly.
Sd/-
JUDGE NR/BVK