Karnataka High Court
Sri. Mahesh @ Mayi vs State Of Karnataka on 23 September, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:34645
CRL.A No. 1592 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1592 OF 2022
BETWEEN:
SRI. MAHESH @ MAYI
S/O DODDAMADE GOWDA
AGED ABOUT 28 YEARS
R/AT HONNALLI VILLAGE,
CHAMARAJANAGAR TALUK
...APPELLANT
(BY SMT. GEETHA MISRA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY CHAMARAJANAGAR RURAL POLICE STATION
CHAMARAJANAGAR DISTRICT
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
Digitally signed by HIGH COURT BUILDING
LAKSHMINARAYANA
MURTHY RAJASHRI BENGALURU - 560 001.
Location: HIGH
COURT OF
KARNATAKA 2. MRS. KOMALA
W/O SHEKERE GOWDA ( LATE)
M/O THE VICTIM GIRL
HONNAHALLI GRAMA
CHAMARAJANAGARA TALUK.
...RESPONDENTS
(BY SRI RANGASWAMY R, HCGP FOR R1
R2 SERVED AND UNREPRESENTED)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER ON
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NC: 2023:KHC:34645
CRL.A No. 1592 of 2022
SENTENCE DATED 19.04.2022 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGAR AND
SPECIAL JUDGE FOR POCSO ACSES IN SPL.C.No.180/2019,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S OF IPC, SECTION OF POCSO ACT R/W 376 OF IPC AND
SECTION 6 OF POCSO ACT R/W 376 OF IPC AND SECTION 9 OF
PROHIBITION OF CHILD MARRIAGE ACT AND SECTION 12 OF
POCSO ACT AND ETC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of conviction and order of sentence dated 19.04.2022 passed in Spl.C.No. 180/2019 by the Principal District and Sessions Judge, Chamarajanagar convicting the appellant - accused for offence under Sections 366 of IPC, Sections 4 and 6 of POCSO Act read with Section 376 of IPC, Section 9 of Prohibition of Child Marriage Act and Section 12 of the POCSO Act and sentencing to undergo simple imprisonment for a period of 5 years and to pay fine of Rs.10,000/- for offence under Section 366 of IPC; sentenced to undergo simple imprisonment for a period of 20 years and to pay fine -3- NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 of Rs.10,000/- for offence under Section 4 of POCSO Act read with Section 376 of IPC; sentenced to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs.10,000/- for offence under Section 6 of POCSO Act read with Section 376 of IPC; sentenced to undergo simple imprisonment for a period of 1 year and to pay fine of Rs.5,000/- for offence under Section 12 of POCSO Act and sentenced to undergo simple imprisonment for a period of 2 years for offence under Section 9 of Prohibition of Child Marriage Act.
2. Factual matrix of the case is that P.W.4 - father of the victim girl filed a complaint on 18.03.2019 as per Ex.P.13 stating that his elder daughter aged about 15 years had not returned home after she left the house on 17.03.2019 at 06.30 am and inspite of search, she was not traced. It is further stated that he has got suspicion that his daughter - -4-
NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 victim girl must have eloped with the appellant - accused and prayed for tracing her. Said complaint came to be registered in crime No.71/2019. On 28.03.2019 the appellant - accused and victim girl were produced before P.W.18 - PSI. Statement of the victim girl has been recorded. Based on the said statement of the victim girl (Ex.P.3) P.W.18 gave requisition to the Court as per Ex.P.26 to insert Sections 376, 363 of IPC and Sections 4 and 6 of the POCSO Act. Thereafter, after completing investigation charge sheet came to be filed for offence under Sections 363, 376(i)(n) of IPC, Sections 4, 6 and 12 of the POCSO Act and Sections 9 and 10 of the Prohibition of Child Marriage Act. Prosecution examined 23 witnesses as P.W.1 to P.W.23 and got marked Ex.P.1 to Ex.P.33 and material objects M.O.1 to M.O.8. Statement of the appellant - accused under Section 313 of Cr.P.C. was recorded. After hearing -5- NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 arguments on both the sides the trial Court formulated points for consideration and convicted the appellant - accused for the aforesaid offences. Said judgment of conviction and order of sentence has been challenged in this appeal.
3. Heard learned counsel for appellant - accused and learned HCGP for respondent - State.
4. Learned counsel for appellant - accused would contend that the sentence passed by the trial Court is not in accordance with law. The offence is alleged to have taken place during March 2019 and the trial Court taking into consideration the amended provisions of the POCSO Act, as amended by Act No. 25/2019 (with effect from 16.08.2019) has imposed the sentence and committed an error in that regard. Age of the victim girl has not been proved as required under Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) -6- NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 Act, 2015 (hereinafter referred to as the JJ Act). On that point learned counsel placed reliance on the decision of the Hon'ble Apex Court in the case of P. Yuvaprakash Vs. State by Inspector of Police reported in 2023 INSC 626. Ex.P.21 and Ex.P.22 are not the date of birth certificates issued by the school authorities. The victim girl has stated that there are two dates of birth in her statement recorded under Section 164 of Cr.P.C. (Ex.P.9). Therefore, the prosecution has failed to prove that the victim girl is a child as defined under Section 2(d) of the POCSO Act.
5. She contended that in the complaint given by the father of the victim girl (Ex.P.13) there is a mention that he has suspicion that the victim girl might have gone with the appellant - accused. The Doctor who examined the victim girl in her report (Ex.P.15) has noted the history given by the victim girl that she had eloped with the appellant - accused -7- NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 and she opined that the victim girl had consensual sexual intercourse. The victim girl in her statement (Ex.P.3) has stated that she asked the appellant - accused over phone that she is ready and where she has to come and that very aspect goes to show that she voluntarily went with the appellant - accused on his motorcycle. On looking to the entire evidence of the victim girl it is clear that she is not a sterling witness and on that point learned counsel placed reliance on the decision of the Hon'ble Apex Court in the case of Rai Sandeep @ Deepu Vs. State of NCT, Delhi, reported in 2012 (8) SCC 21 wherein the Hon'ble Apex Court has held that sterling witness should be of a very high quality and caliber whose version should be unassailable. The prosecution has not established foundational facts to raise a presumption under Section 29 of the POCSO Act. The learned counsel further contended that the Courts -8- NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 cannot convict the accused persons on suspicion or on moral conviction as observed by the Hon'ble Apex Court in the case of Mousam Singha Roy Vs. State of West Bengal reported in 2003 (12) SCC 377. The offence alleged against the appellant - accused is a serious offence and therefore stricter view is required. P.W.1 and P.W.2 in their cross-examination have admitted that the appellant - accused and victim girl had love affair and it was told to them by the victim girl. The father of the victim girl (P.W.4) and mother of the victim girl (P.W.5) have admitted in their cross examination that there was enmity between them and the appellant - accused with regard to some criminal case and they were not in talking terms even as on the date of the alleged offence. The very fact that the victim girl went on the motorcycle of the appellant - accused without making hue and cry and traveled with the appellant - accused in public -9- NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 transport itself shows that she voluntarily went with the appellant - accused. Therefore, she concluded that the prosecution has failed to prove that the victim girl is a child and the evidence on record will establish that the victim girl voluntarily went along with the appellant - accused and sexual intercourse by this appellant - accused on the victim girl is consensual and therefore, it does not establish any of the offences alleged against appellant - accused. On these grounds she prayed to allow the appeal and acquit the appellant - accused of the charges leveled against him.
6. Per contra, learned HCGP appearing for the respondent - State has argued that Ex.P.21, Ex.P.22 and evidence of P.W.15 establishes that the date of birth of the victim girl is 15.09.2004 and the same date of birth is also stated by the victim girl in her evidence and it has not been denied by the victim girl
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 in the cross-examination. The victim girl in her evidence has deposed that this appellant - accused was forcing her to love him by threatening to consume poison and inspite of she resisting, he tied thali and had sexual intercourse for 3 to 4 days. Evidence of the Doctor (P.W.14) who examined the victim girl establishes that the hymen of the victim girl was ruptured. Appellant - accused was capable of performing sexual intercourse as per the report Ex.P.19 issued by the Doctor (P.W.23). Learned HCGP argued that the trial Court on proper appreciation of the evidence on record has rightly convicted the appellant - accused. He has supported the reasoning assigned by the trial Court. On these grounds he sought for dismissal of the appeal.
7. On the grounds made out and considering the arguments advanced, the following point arises for my consideration:
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 Whether the trial Court has erred in convicting the appellant - accused for the offence under Sections 366, 376 of IPC, Sections 4, 6 and 12 of the POCSO Act and Section 9 of Prohibition of Child Marriage Act?
8. My answer to the above point is in the affirmative for the following reasons. In order to attract offence under the POCSO Act the prosecution has to establish that the victim girl is a child as defined under Section 2(1)(d) of the POCSO Act. As per Section 2(1)(d) of the POCSO Act child means any person below the age of eighteen years. In order to ascertain whether the prosecution has proved whether the victim girl is a child or not, it is necessary to consider the following provisions of law.
9. Section 34 of the POCSO Act reads as follows:
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022
34. Procedure in case of commission of offence by child and determination of age by Special Court.-(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub- section (2) was not the correct age of that person."
10. In view of Section 34(1) of the POCSO Act, Section 94 of JJ Act becomes relevant and applicable. Therefore the same is extracted and it reads as under:
"94. Presumption and determination of age. -(1) Where, it is obvious to the
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NC: 2023:KHC:34645
CRL.A No. 1592 of 2022
Committee or the Board, based on the
appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
11. It is evident from a conjoint reading of the above provisions that to resolve whatever dispute with respect to the age of a person that arises in the context of her or him being a victim under the POCSO Act, the Courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in the order of which the JJ Act requires consideration is that the concerned Court has to determine the age by considering the following documents:
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Section 94 of the JJ Act clearly indicates that the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board has to be firstly preferred in the absence of which date of birth certificate issued by a Corporation or Municipal Authority or a Panchayat can be considered and it is only thereafter, in the absence of these documents, age is to be determined through
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 'ossification test' or `by any other latest medical age determination test conducted on the orders of the concerned authority, i.e., Committee or the Board or Court'.
12. In the present case only `±Á¯Á GzÀÞgÀuÁ ¥Àæw' (shalla uddarana prati) (Ex.P.21) and school certificate (Ex.P.22) and not the date of birth certificate or matriculation or equivalent certificate was considered. zÁR¯Áw GzÀÞgÀuÁ ¥Àæw (daakhalati uddarana prati) has been issued by the Head Master of JSS High School, Arakalavadi and it has been issued on 13.05.2019. As per Ex.P.21 the victim girl came to be admitted to the said school on 06.06.2018 and earlier she was attending the Government Higher Primary school, Honnahalli, till 8th standard and the date of birth of the victim girl is mentioned as 15.09.2004 and the date of her admission to the said High School is 06.06.2018. Ex.P.22 is the school certificate issued by
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 the JSS High School, Arakalavadi, wherein also date of birth is mentioned as 15.09.2004 and date of admission is mentioned as 06.06.2018 and it has been issued by the Head Master of JSS High School, Arakalavadi on 19.03.2019. P.W.15 - teacher in JSS High School has stated in his evidence that he had worked as the Head Master in the said School and he had issued Ex.P.21 and one Basavanna earlier Head Master had issued Ex.P.22 and as per their records date of birth of the victim girl is 15.09.2004. In the cross-examination he has stated that the date of birth of the victim girl has been mentioned in their school records on the basis of the TC issued by the Primary School and he do not know on what basis the date of birth is mentioned in the TC of the Primary School. The documents produced at Ex.P.21 and Ex.P.22 do not answer the description of any of the class of documents mentioned in Section 94(2)(i) of the JJ Act
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 as they were issued based on the TC issued by the Primary School. Therefore, the trial Court could not have placed reliance on those documents to hold that the victim girl was below 18 years at the time of commission of offence. The trial Court placed reliance on Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules. The trial Court placed reliance on the decision of the Hon'ble Apex Court in the case of State of M.P. Vs. Anoop Singh wherein it is observed as under:
"12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape, Rule 12(3) reads as under:
Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given 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 juvenile or child. In 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 considered necessary, give benefit to the child or juvenile by considering his/her 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
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 and either of the evidence specified in any of the clauses (a)(i), (ii), (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."
13. As per Rule 12(3)(ii) date of birth certificate from the school (other than a play school) first attended can be taken into consideration in the absence of matriculation or equivalent certificate. Ex.P.21 and Ex.P.22 are not the date of birth certificates from the school first attended by the victim girl. The trial Court has erred in placing reliance on Ex.P.21 and Ex.P.22 stating that they are the date of birth certificates issued by the school first attended by the victim girl. In Ex.P.21 and Ex.P.22 there is specific mention that the victim girl has studied upto 8th standard in Government Higher Primary School, Honnahalli and she came to be admitted to JSS High School, Arakalavadi on 06.06.2018 for 9th standard. There is no matriculation or equivalent certificate as the victim girl has not studied matriculation. There is no birth certificate issued by the
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 Corporation or Municipal Authority or Panchayath as the Investigating Officer has not collected any such documents. The evidence on record does not reveal that any ossification test was conducted to ascertain the age of the victim girl. The Hon'ble Apex Court in the case of P. Yuvaprakash Vs. State by Inspector of Police reported in 2023 INSC 626, after considering the provisions of Section 34 of the POCSO Act, Section 94 of the JJ Act, and decisions of the Hon'ble Apex Court in the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh reported in 2021 (12) SCR 502, Sanjeev Kumar Gupta Vs. The State of Uttar Pradesh and others, reported in 2019 (9) SCR 735 and Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal reported in 2012 (9) SCR 224 has observed thus:
"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 concerned examination board or certificate by a corporation, municipal authority or a Panchyat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of JJ Act. ........."
14. Even the victim girl in her statement recorded under Section 164 of Cr.P.C. (Ex.P.9) has stated two dates of birth as 15.09.2004 and 15.02.2004 (as per Aadhar card). The parents of the victim girl who are examined as P.W.4 and P.W.5 have not stated the date of birth of the victim girl. The documents provided, i.e., ±Á¯Á GzÀÞgÀuÁ ¥Àæw, (shaala uddarana prati) extract of admission register are not what Section 94(2)(i) mandates and they are not in accordance with Section 94(2)(ii) of the JJ Act. In these circumstances, only piece of evidence accorded under Section 94 of the JJ Act was the medical ossification test. Said ossification test has not been conducted. Therefore, under these circumstances there is no material on record to establish the date of birth of the victim girl as per
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 Section 94(2) of the JJ Act and the prosecution has failed to establish that the victim girl was a child as defined under Section 2(1)(d) of the POCSO Act.
15. P.W.4 - father of the victim girl has filed a complaint as per Ex.P.13. In Ex.P.13 father of the victim girl suspected that the victim girl might have gone with the appellant - accused. In Ex.P.3 - statement of the victim girl recorded by the Police the victim girl herself has stated that on 17.03.2019 at 06.15 am she made a phone call to the appellant - accused from the mobile phone in her house to the mobile phone of the appellant - accused and told him that she was ready and asked him where she has to come and he told her to come near Basavanagudi temple and that he will be ready on motorcycle. At that time her mother was taking bath and without informing anybody in the house she went out of the house and the appellant - accused was waiting on red colour motorcycle by keeping in start mode and she sat on the motorcycle and went with him. Said aspect itself clearly goes to show that the victim girl voluntarily went with the appellant -
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 accused on his motorcycle. The victim girl traveled on the motorcycle of the appellant - accused and also traveled with him in public transport and has not made any hue and cry. P.W.14 - the Doctor who examined the victim girl issued report as per Ex.P.15. In Ex.P.15 in the history it is mentioned that the victim girl eloped with the appellant - accused and got married him and stayed in Bengaluru in his relative's house and had consensual intercourse with him on 3 dates. The Doctor noted that her hymen is torn and opined that she had 'consensual intercourse however sexual violence cannot be ruled out.'
16. P.W.1 and P.W.2 in their cross-examination have stated that the victim girl and the appellant - accused stayed in their house and when they enquired with the victim girl she told them that she is in love with the appellant - accused and married him in a temple and when she told the same them there was no fear on her face. Even the victim girl in her cross-examination has stated that they were staying in the house of P.W.1 and P.W.2,
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 they came on 26.03.2019 and asked the appellant - accused as to who is this girl and at that time he told that the girl belongs to their community and they are in love and as their family members did not agree, he married her and brought her. The victim girl at that time had not objected to the said statement made by the appellant - accused before P.W.1 and P.W.2. Therefore, said aspects goes to show that the victim girl had a love affair with the appellant - accused and she voluntarily went along with him on his motorcycle and stayed in the house of P.W.1 and P.W.2 and had consensual intercourse with the appellant - accused. As the sexual intercourse is consensual, it does not attract Section 375 of IPC.
17. As the prosecution has failed to prove that the victim girl is a child, offence under the POCSO Act are not attracted so also provisions under Section 9 of Prohibition of Child Marriage Act. Considering all these aspects, the trial Court has erred in holding that the prosecution has established that the appellant - accused has committed
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NC: 2023:KHC:34645 CRL.A No. 1592 of 2022 the offence alleged against him. In view of the above, the judgment of conviction and order of sentence requires to be set aside.
18. In the result, the following;
ORDER Appeal is allowed. The judgment of conviction and order of sentence dated 19.04.2022 passed in Spl.C.No. 180/2019 by the Principal District and Sessions Judge, Chamarajanagar is set aside. The appellant - accused is acquitted for the offence under Sections 366 and 376 of IPC, Section 4, 6 and 12 of POCSO Act and Section 9 of Prohibition of Child Marriage Act. Fine amount, if any, paid by the appellant - accused is ordered to be returned to the appellant - accused.
Sd/-
JUDGE LRS List No.: 1 Sl No.: 3