Karnataka High Court
Srinivasa vs The State Of Karnataka on 3 July, 2024
-1-
NC: 2024:KHC:25251-DB
CRL.A No. 690 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 690 OF 2017
BETWEEN:
Srinivasa
S/o. Seetharamappa,
Aged about 35 years
R/at Doddahalli Village
Chikkaballapur Taluk & District
PIN- 561 207.
...Appellant
(By Sri. K.B.K.Swamy, Advocate)
AND:
Digitally
signed by 1. The State of Karnataka
SRIDEVI S
Location: Represented By
HIGH
COURT OF Deputy Superintendent of Police
KARNATAKA
Chikkaballapur Sub-Division,
Chikkaballapur
(Gudibande PS)
PIN- 561 207
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru
Pin - 560 001.
-2-
NC: 2024:KHC:25251-DB
CRL.A No. 690 of 2017
2. Rama D.N.
Aged about 26 years,
D/o. Narasimhappa,
Doddahalli Village,
Chikkaballapura Taluk and District,
Bengaluru Rural District.
(R2 impleaded vide order dated 02.01.2024)
...Respondents
(By Sri. Vijaykumar Majage, SPP-II for R-1;
Sri. M.Chennakrishnappa, Advocate for R-2)
This Criminal Appeal is filed under section 374(2) of
Criminal Procedure Code, 1973 praying to set aside the
judgment and order of conviction dated 18.03.2017 passed by
the I Additional District and Sessions Judge, Chikkaballapur in
Spl. S.C.No.40/2014 - convicting the appellant/accused for the
offence punishable under sections 376, 506 of IPC and under
sections 3(1)(xii) and 3(2)(v) of SC/ST (POA) Act, 1989 and
under section 4 of POCSO Act, 2012.
This Criminal Appeal coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is against judgment dated 18.03.2017 passed by the I Additional District and Sessions Judge, Chikkaballapura ('trial court' for short) in Spl. Case No.40/2014 convicting the accused for the offences punishable under sections 376 and 506 of IPC, section 4 of the Protection of Children from Sexual Offences Act ('POCSO Act' for -3- NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 short) and sections 3(1)(xii) and 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act ('Atrocities Act' for short). Having recorded the conviction for the aforesaid offences, the trial court imposed sentence of life imprisonment and fine of Rs.50,000/- on the accused for the offence under section 3(2)(v) of the Atrocities Act and rigorous imprisonment for 6 months and fine of Rs.5,000/- for the offence punishable under section 506 of IPC, without imposing sentence for the offence under section 376 of IPC and sections 4 and 3(1)(xii) of the POCSO Act invoking section 42 of the POCSO Act.
2. The incident that led to charge sheeting the accused was revealed by PW1 to the police in her complaint or report made as per Ex.P1 on 11.02.2014. PW1 was a student of II PUC at Government Junior College, Mandikal, and she was -4- NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 coming to college by walk everyday from her village Doddahalli. About a year prior to 11.02.2014, when she was returning home around 3.00 p.m, the accused stalled her on the way, closed her mouth with his towel and dragged her to a nearby mango grove where he subjected her to forcible sexual intercourse. He threatened of killing her and her family members in case she would disclose the said incident to anybody else. After the first incident, the accused had intercourse with her several times forcibly posing a threat of killing her and disclosing everything in the village. She conceived as a result of this intercourse and when she was a pregnant of 7 months, her father took her to hospital and at that time she disclosed the incident to her parents. As she belonged to scheduled caste, FIR was registered for the offence under section 3(2)(v) of Atrocities Act in addition to offences under -5- NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 sections 376 and 506 of IPC and section 4 of the POCSO Act.
3. During trial, the prosecution examined 20 witnesses and got marked 27 documents as per Exs.P1 to P27 and 3 material objects as per MOs1 to MO3. Exs.D1 to D5 are the documents marked on behalf of the accused.
4. Appreciating the evidence the trial court found that the age of PW1 on the date of incident i.e., in the month of June or July of 2013, was below 18 years. Ex.P6 is the admission register extract of PW1 issued by Government Pre University College, Mandikal and to prove the contents of Ex.P6, the prosecution examined the then Principal of Government Junior College as PW4. The conclusion of the trial court shows that the date of birth of PW1 was 11.11.1996 as entered in Ex.P6. In fact this is the point that -6- NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 learned counsel for the appellant/accused argued vehemently.
4.1. As regards the incident, the trial court is of the opinion that the evidence given by PW1 is fully believable. She gave birth to baby at Vani Vilas Hospital, Bengaluru, which is evidenced by Ex.P4. Then the blood samples of the baby, PW1 and the accused were collected for DNA matching. The report is to the effect that PW1 and the accused are the biological parents of the baby. Placing reliance on the oral testimony of PW1 and the DNA report, the trial court held the accused guilty of the offences. As she belonged to scheduled caste, conviction was recorded for the offence under section 3(2)(v) of Atrocities Act.
5. Sri K.B.K.Swamy, learned counsel for the appellant/accused highlighted three points while arguing. Firstly the trial court should not have convicted the accused for the offence under -7- NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 section 3(2)(v) of Atrocities Act inasmuch as merely because the girl belonged to scheduled caste, no conviction under the provisions of Atrocities Act can be recorded unless a clear intention to sexually abuse a member of scheduled caste only on the ground of caste factor was proved by the prosecution. Here there is no evidence to this effect at all.
5.1. Secondly the trial court should not have recorded conviction for the offence under section 4 of the POCSO Act without a clear evidence regarding her age. Ex.P6 the admission register extract and the oral testimony of PW4 should not have been acted upon because PW1 has clearly admitted that she studied SSLC class two times. This shows that by the time she reached II PUC class, her age might be more than 18 years. The girl should have been referred to ossification test and radiological test to ascertain the age. In this -8- NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 view conviction under section 4 of the POCSO Act cannot be sustained.
5.2. Thirdly, it becomes evident from her answers in the cross examination that she was a consenting party. She never resisted nor revealed the incident to anybody in the village till her pregnancy was detected. From her conduct itself, her consent for sexual intercourse with the accused can be inferred and in this view conviction under section 376 of IPC is also not possible. Therefore he argued that the judgment of the trial court requires to be interfered with and the accused acquitted.
6. On the contrary, Sri Vijaykumar Majage, learned SPP-II for the respondent/State argued that PW1 has given reason for not disclosing the first incident of sexual assault on her in her family. Assuming that she was a consenting party, her consent is immaterial because of her age. Ex.P6 is -9- NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 the document that the court can rely upon for giving a finding about the age of the victim. Except a suggestion in the cross examination that 11.11.1996 is not the correct date of birth, nothing is there on record to disbelieve evidence of PW4 on Ex.P6 and also the oral testimony of PW1 about her age. There is acceptable proof with regard to age. The incident was reported to police in the year 2014 and the actual incident took place in the year 2013 and at that time her age was nearly 16 years. She belongs to scheduled caste which is not disputed. For all these reasons the judgment of the trial court cannot be interfered with.
7. The argument of Sri K.B.K.Swamy shows that the accused mainly disputes the proof provided by the prosecution in regard to the age of PW1. In order to invoke the penal provisions of the POCSO Act, the prosecution has to necessarily prove that the victim is a child in the sense that he
- 10 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 or she is below the age of 18 years or otherwise no offence under the POCSO Act is constituted. In this case, PW1 has stated that she was born on 11.11.1996. The prosecution produced two documents as per Exs.P5 and P6 in proof of the age of PW1. Ex.P5 is a letter written by the Principal of Government Composite Junior College, Mandikal, to the Deputy Superintendent of Police, Chikkaballapura, stating that the date of birth mentioned in the school records is 11.11.1996. Ex.P6 is the extract of admission register wherein the same date of birth is recorded. If the cross- examination of PW1 is seen, except putting a few questions in regard to the age difference between her and her elder sister, and the age of her mother, she was not at least suggested that 11.11.1996 was not her date of birth. It is true that at one stage in the cross-examination she gave an answer that she studied SSLC for two years, but when the Public Prosecutor re-examined
- 11 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 her, she clarified that she did not understand the question properly and therefore she gave an answer that she studied the SSLC class for two years. She further made it clear that she passed SSLC in the first attempt itself. The evidence of PW1 is further fortified by Exs.P5 and P6 about which PW4, the principal of the college gave evidence that he issued those two documents verifying the school records. In fact the original admission register was produced before the court and it was compared with its photostat copy. Ex.P6 is the original admission register and Ex.P7 is the photostat copy. That means the original admission register was produced before the court. This kind of proof produced by the prosecution before the court suffices the requirement of law for proving the age of the child victim. Sri K.B.K. Swamy disputes the date of birth for the reason that, PW17, the investigating officer answered in the cross-examination that he had made a request
- 12 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 to the doctor for issuing age certificate of PW1. He admitted the suggestion that in Ex.P10, the doctor opined that the age had to be determined by a dentist/radiologist. But the investigating officer did not obtain any such age determination from the dentist or the radiologist. Now for the reason that such a determination was not obtained by the investigating officer, can it be stated that Exs.P5 and P6 do not establish the age of the girl. It is now a well established principle that the court can follow the procedure prescribed in Juvenile Justice (Care and Protection of Children) Act for determination of the age of the child. To cite a decision, the Supreme Court in the case of State of Madhya Pradesh V. Anoop Singh [(2015) 7 SCC 773] has held below:
"13. In the present case, the central question is whether the prosecutrix was below 16 years of age at the time of the incident? The prosecution in support of their
- 13 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 case adduced two certificates, which were the birth certificate and the Middle School Certificate. The date of birth of the prosecutrix has been shown as 29.08.1987 in the birth certificate (Ext.P5), while the date of birth is shown as 27.08.1987 in the Middle School Examination Certificate. There is a difference of just two days in the dates mentioned in the abovementioned exhibits. The trial court has rightly observed that the birth certificate, Ext.P5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the prosecutrix was shown as under- aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the prosecutrix.
14. This Court in Mahadeo V. State of Maharashtra has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in
- 14 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 determining the age of the victim of rape. Rule 12(3) reads as under:
"Rule 12( 3): In every case conce rning a child or j uvenile in conflict with law, the age dete rmination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evide nce by obtaining -
(a)(i) the matriculation or equivale nt certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (othe r than a play school) first atte nded; and in the absence whe re of;
(iii) the birth certificate give n by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either
(i), ( ii) or (iii) of clause ( a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the j uvenile or child. I n case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if conside red necessary, give bene fit to the child or juvenile by conside ring his/he r age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),
- 15 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
15. This court ............................................. ....................................................same."
16. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place.
These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts.P.5 and P.6 cannot be discarded. Therefore, the trial court was correct in relying on the documents."
8. In view of the above judgment of the Hon'ble Supreme Court, the documents Exs.P5 and P6 indicating the date of birth of PW1 are to be relied upon. It may be true that in Ex.P10 the doctor has observed that the age has to be
- 16 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 determined by the radiologist/dentist. Only for this reason it cannot be stated that Ex.P6 in particular cannot be considered as age proof. Only in the absence of any document in proof of age, the investigating officer may get the age of the victim determined by a dentist or radiologist. In this case if the investigating officer did not take the girl for medical examination for the purpose of age determination, it does not mean that Ex.P6 loses its evidentiary value. Therefore the date of birth of the girl is proved to be 11.11.1996 and as on the date of first incident of sexual assault on her i.e., one year before registration of FIR, her age was 16 years 3 months.
9. Consent of a minor girl for sexual intercourse is immaterial as she is incapable of giving consent. In this regard the Hon'ble Supreme Court in the case of Anversinh alias Kiransinh Fatesinh Zala V. State of Gujarat
- 17 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 [(2021) 3 SCC 12] has held that minor is deemed incapable of giving consent. Now if the cross examination of PW1 is seen, it becomes apparent that all the questions directed to her were to bring to fore that she was a consenting party, not that the accused did not have sexual intercourse with her. It is true that the way in which she has given answers indicate that she was a consenting party. She did not disclose the incident till her pregnancy was detected at the 7 t h month. But in view of her age, her consent was immaterial. In these circumstances we are of the opinion that the trial court is justified in recording conviction against the accused for the offence under POCSO Act.
10. However what is prominently noticeable here is that the trial court's decision to convict the accused for the offence under section 3(2)(v) of Atrocities Act cannot be sustained inasmuch as the evidence indicating that the accused had that kind
- 18 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 of intention to subject a girl of scheduled caste on the caste factor is not forthcoming. The prosecution ought to have elicited from PW1 or her mother examined as PW2 that the accused knew that she belonged to scheduled caste. What is found is a kind of gratification of sexual desire and nothing more. Therefore the conviction for the offence under section 3(2)(v) of Atrocities Act cannot be sustained.
11. The trial court ought to have famed the charge for the offence punishable under section 6 of the POCSO Act as PW1 became pregnant as a consequence of sexual assault. The circumstance takes into its ambit the definition of aggravated penetrative sexual assault in terms of section 5(j)(ii) of the POCSO Act. Instead the charge was framed for the offence under section 4 of the Atrocities Act and conviction has been recorded for the same offence. Now at the appellate stage it is
- 19 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 not permitted to convict the accused for the offence under section 6 of the Act as there was no charge for it. The prosecution should have been alert at the time of framing the charge. If at this stage the charge is altered, it prejudices the interest of the accused. Though the prosecution invoked section 376 of IPC, it is to be stated that since the age of the girl was 16 years 3 months, section 376(2)(i) of IPC as it stood before the amendment given into effect from 21.04.2018 or 376(3) given into effect by virtue of amendment cannot be invoked. The accused has to be convicted and punished only in accordance with the sentencing scheme provided in section 4 of the POCSO Act before the amendment was given into effect from 16.08.2019.
12. Having regard to the traces of consent by PW1, her evidence that she was threatened to be killed is difficult to be believed and therefore
- 20 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 conviction for section 506 of IPC cannot be sustained.
13. In view of the above discussion, it transpires that the accused is liable to be convicted only for the offence under section 4 of the POCSO Act. Since the incident was of the year 2013, accused is to be punished in accordance with the law existing on that date. And section 4 of the Act as it stood then contemplated minimum imprisonment period of 7 years extendable up to imprisonment for life and fine. Since the accused being married man exploited PW1 for his sexual desire, and in the facts and circumstances indicating the consent by PW1 it can be stated that if the accused is subjected to rigorous imprisonment for 10 years and fine, it meets the ends of justice. Now the following:
- 21 -
NC: 2024:KHC:25251-DB
CRL.A No. 690 of 2017
ORDER
(i) Appeal is partly allowed.
(ii) The appellant/accused is acquitted of the
offences punishable under section 506 I.PC and section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the sentence imposed by the trial court for these two offences are hereby set aside. However, we confirm the conviction order passed by the trial court for the offence punishable under section 4 of POCSO Act and sentenced to undergo rigorous imprisonment for a period of 10 years and fine of Rs.50,000/-. In default of payment of fine, he shall undergo further imprisonment for one year. Out of the fine amount of Rs.50,000/-, Rs.25,000/- shall be paid to PW-1
- victim girl towards compensation and balance amount shall be defrayed towards prosecution expenses. PW-1 -
victim girl may approach the District Legal Services
- 22 -
NC: 2024:KHC:25251-DB CRL.A No. 690 of 2017 Authority, Chikkaballapur, for compensation in addition to what has been paid from the fine amount.
A copy of judgment of this appeal shall be sent to the concerned jail authorities.
Registry is directed to send back the trial court records along with copy of this judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE CKL/KMV List No.: 1 Sl No.: 22