Karnataka High Court
Veeresh S/O Shivashankar Gundagurti vs The State on 19 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19th DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.200122/2020
BETWEEN:
VEERESH
S/O SHIVASHANKAR GUNDAGURTI
AGE.21 YEARS,
OCC.DRIVER,
R/O GUNDARGURTI VILLAGE,
TQ.CHITTAPUR,
DIST.KALABURAGI. ...APPELLANT
(By Sri: R S LAGALI, ADVOCATE)
AND:-
THE STATE
THROUGH GULBARGA WOMAN PS,
TQ.DIST.KALABURAGI
NOW REPRESENTED BY ADDL SPP
HC BUILDING,
KALABURAGI-585102. .....RESPONDENT
(By Sri:VEERANAGOUDA MALIPATIL, HCGP)
-------
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED
01.10.2020 PASSED BY THE II ADDL. SESSIONS JUDGE, KALABURAGI IN
SPL.CASE (POCSO) No.35/2018 CONVICTING THE APPELLANT/ ACCUSED
NO.1 FOR THE OFFENCES P/U/SEC.366(A) AND 343 OF IPC AND U/SEC.7
OF POCSO ACT-2012;
[
THIS APPEAL COMING ON FOR FURTHER DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal arises out of the judgment of conviction and order of sentence dated 01.10.2020 passed in Spl.Case(POCSO) No.35/2018 by II Addl. Sessions Judge, Kalaburagi, wherein the appellant is convicted for the offences punishable under sections 366(A), 343 of Indian Penal Code, 1860(for short 'IPC') and section 7 of the Prevention of Children from Sexual Offences Act, 2012(for short 'POCSO Act') and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.50,000/- (Rupees fifty thousand) for the offence punishable under section 366A of IPC and in default to pay fine, he shall undergo simple imprisonment for a period of two years. The appellant/accused is sentenced to undergo rigorous imprisonment for two years and a fine of Rs.10,000/- Rupees Ten Thousand) for the offence punishable under section 343 of IPC and in default to payment of fine, he shall undergo simple imprisonment for a period of six months. The appellant/accused is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- (Rupees fifty thousand) for the offence 3 punishable under section 7 of POCSO Act 2012 and in default of payment of fine, he shall undergo simple imprisonment for a period of twelve months.
2. An FIR came to be registered on 16.08.2018 in view of the statement given by the victim, for the offences punishable under sections 366, 342, 376(2) (n), 34 IPC and sections 5, 6 and 17 of POCSO Act. It is alleged by the prosecution that this appellant who is accused No.1 was acquainted with the victim from 01.03.2018. The victim was staying in the house of her grandmother as she has lost her parents. The appellant/accused was staying opposite to the house of the victim. He developed friendship with the victim and brought her a mobile phone. They used to talk over phone very ofen. Five months prior to the date of lodging the complaint, the accused took the victim to the roof of plot No.264 situated at Ashraya colony and committed sexual intercourse on her against her will. As the grandmother of the victim came to know about the relationship between the victim and the accused, the victim was sent to relatives' house of the grandmother. It is further alleged that when the victim was alone in the house on 01.07.2018 at about 4 11.00 a.m., accused No.1 again went to Jeratagi village and committed rape on her. It is further alleged that the appellant kidnapped the victim from their lawful guardianship and took her on the motor cycle bearing No.KA.32/EK.8047 to Telkar village, Sedam and kept her in the house of PW-5 Ramesh brother of accused No.3 and who is also friend of accused No.3 Chandu. It is further alleged on the next day, he brought her to the house of PW-14 Sridevi. It is alleged that the appellant did not allow the victim to contact her relatives. Accused Nos.2 and 3 abetted accused No.1 to commit sexual offence on the victim. It is alleged that they visited the house of PW-14 and helped appellant No.1 to commit rape on the victim. Accordingly, a charge sheet came to be filed against accused Nos.1 to 3 for the above stated offences.
3. The accused appeared before Court and charge was read over, explained to them by the Sessions Judge, they pleaded not guilty. Then the prosecution examined 21 witnesses as PWs-1 to 21 and got marked 29 documents as Exs-P1 to P29. Thereafterwards, the statement of accused No.1 under section 313(1) Cr.P.C. was recorded. Accused 5 No.1 denied the circumstances appearing against him in the evidence of the prosecution witnesses. Accused No.1 has not led any defence evidence. After hearing the arguments, the learned Sessions Judge found the appellant who is accused No.1 guilty and convicted him. It is stated that case against accused Nos.2 and 3 was split up and registered in Spl.C.No.39/2018. Thereafterwards, accused No.2 was acquitted by the Court on 21.09.2020. But, by judgment dated 01.10.2020, the appellant who is accused No.1 was convicted and sentenced as stated above. Aggrieved by the said judgment of conviction and order of sentence, the appellant has filed this appeal.
4. Heard Sri. R.S. Lagali, learned counsel for the appellant and Sri. Veeranagoudar Malipatil, learned HCGP for the respondent.
5. Learned counsel for the appellant argued that the appellant is innocent, he has not committed any offence, he has been falsely involved in this case. The impugned judgment of conviction and order of sentence passed by the Sessions Judge is contrary to the law, facts and evidence. The alleged incident though is stated to have taken place on 6 01.07.2018, but the FIR came to be registered on 16.08.2018 showing that the offence was committed on 01.07.2018. There are no incriminating evidence against this appellant, but inspite of the same, the Trial Court convicted him. The victim has not supported the prosecution and she is treated as partly hostile. Panch witness for spot panchanama have also not supported the prosecution case. The evidence of PW-2 who is the grand-mother of the victim, cannot be accepted. The entire prosecution evidence creates suspicion about the alleged incident. The trial Court instead of giving benefit of doubt has convicted the appellant/accused No.1. The learned counsel also argued that the appellant is in custody since 18.08.2018. The statement of the witnesses also shows that there are contradictions and inconsistencies in their evidence. The evidence itself is highly concocted. It was the thought of the police and PW-2 to prepare false complaint and involve the accused/appellant No.1. Learned counsel argued that Section 366A IPC is not at all attracted or there is no evidence in this regard. The learned counsel further argued that as section 366A IPC is not applicable to the appellant, the learned Sessions Judge has acquitted the 7 appellant/accused No.1 for offences punishable under section 376(2) (i) & (n) IPC and section 6 of POCSO Act. The accused No.1 is found guilty for the offences under sections, 366(A), 343 IPC and 7 of POCSO Act. Learned counsel argued that in view of material contradictions and inconsistencies in the evidence placed by the prosecution, the appellant needs to be acquitted.
6. In support of his argument, learned counsel relied upon the following decisions:-
1. Iqbal V. State of Kerala, (2007) 12 SCC 724
2. Ramakrishna V. State of Karnataka passed in Crl.A.No.2376/2005 dated 12.03.2013.
3. Sat Parkash v. State of Haryana, AIR ONLINE 2015 SC 514
4. Crl.A.No.2506/2013 dated 06.07.2020, Yamanappa v. State of Karnataka.
5. State of Karnataka v. S.R. Mahesh, AIR ONLINE 2020 KAR 2733(in Crl.A.No.524/2014 dated 08.09.2020), 8
7. Against this, learned HCGP argued that the trial Court has considered the prosecution evidence and also documentary evidence and has dealt with evidence of the witnesses and appreciated the evidence in proper perspective. There might be some inconsistencies and contradictions, but they are not major so as to go to the root of the case. Learned Sessions Judge has rightly believed the evidence and has come to the conclusion that the prosecution has proved its case beyond all reasonable doubt and has rightly convicted the accused. Therefore, absolutely there are no grounds to interfere with the finding of the learned Sessions Judge and prays to dismiss the appeal.
8. I have perused the appeal memo, judgment and also evidence on record.
9. Learned Sessions Judge in his evidence has raised four points for consideration. He has answered point Nos.1 and 3 in affirmative and point No.2 in negative. As far as point No.4 is concerned, the learned Sessions Judge has come to the conclusion that the offence under section 7 of POCSO Act is committed and not under sections 5(1) and 6 9 of POCSO Act. The learned Sessions Judge has considered the evidence of PW-1 victim and PW-2 who is the grandmother of the victim, PW-3 maternal uncle of the victim, PW-4 neighbour, PW-5 resident of Telkur village in whose house, the accused No.1 and victim stayed for one night. He has also referred to the evidence of PW-8 the learned JMFC, Kalaburagi and the evidence of Super- intendent of State Home for girls PW-17. The victim has deposed before the Court that she do no know what is sexual assault, but she has written by hand and stated that she cannot write what all happened thereafter.
10. Learned Sessions Judge has referred in detail to the evidence of PW.1. It is also in the evidence of that victim/PW.1 that she lost her parents during her childhood and grandmother was looking after her. Therefore, learned Sessions Judge found that PW.2-grandmother evidence is reliable one.
11. By referring to the judgment of the Hon'ble Supreme Court in the case of Mahadeo vs. State of Maharashtra and another reported in (2013) 11 SCC 10 637, the learned Sessions Judge has considered the document furnished in school records to assess the age of the victim. It is evident that age of the victim is less than 18 years. The doctor evidence indicate that there is no external injuries on any parts of her body, the hymen was intact. On perusal of FSL report, she is of the opinion that there is no evidence of recent sexual intercourse. It is not possible for hymen to be intact even after sexual intercourse. But if the hymen is flexible there may be chances for hymen intact even after sexual intercourse. Even in case of incomplete penetration hymen tear will not occur. Therefore, learned Sessions Judge found that the evidence regarding rape is not available. Even the Scientific Officer does not find any seminal stains or spermatozoa in the samples collected by the doctor. Therefore, the appellant is acquitted for the offence under section 376(2)(i) & (n) Cr.P.C.
12. But by referring to other evidence, learned Sessions Judge held that accused who was visiting her house, though victim was minor, studying in 8th standard class, gave her carbon mobile phone and seduced her and committed sexual intercourse with her. In 313 Cr.P.C. 11 statement, the accused has not given any explanation about the evidence. The victim has narrated the incident before Child Welfare Committee, police, doctor and in the Court and she was treated as partly hostile regarding the offence of rape. The prosecution has proved its case beyond all reasonable doubt. In respect of other evidence learned Sessions Judge held that the other offence not proved and accordingly acquitted the accused from the said offence.
13. I have re-appreciated the evidence as this Court being an Appellate Court.
14. PW.1 is the victim. In her evidence she has stated that eight months prior to the incident, accused had taken her to a dilapidated building and committed sexual assault on her on the pretext that he would marry her. She has also stated her date of birth as 13.10.2004. The accused was acquainted with her and he purchased and gave her carbon mobile phone and was sending messages. He had sexual intercourse with her two times. She has also stated that he took her from the grandmother's house and when she came to know about the complaint lodged by her 12 grandmother, accused and herself came to Police Station and she narrated the incident before Child Welfare Committee. Even before Mahila Police Station, police have recorded her statement as Ex.P1 and took her to Court, she has narrated the incident before the Court as per Ex.P.2. The photographs of scene of offence are also marked at Exs.P3 to P5. Her cross-examination reveals that she was kept in house of Shridevi/PW.14. It is evident that her parents died when she was child about 1 ½ months baby. She has also stated that she is in love with accused No.1. So her evidence indicates that she was minor and appellant got her mobile phone and they used to chat with each other and he took her from the house of PW.3 and committed sexual assault on her.
15. PW.2-Shantabai is grandmother of the victim and she has stated that the appellant used to visit their house and talking with victim. Appellant has given mobile phone to the victim, Further, PW-2 has deposed in her evidence that she inquired the victim and the victim told that accused No.1 took her to a building top and committed rape on her. She has also stated that because of threat given by accused Nos.1 and 2, complaint was not lodged. Thereafter, she sent 13 the victim to the house of one Nagamma at Jeratagi village out of fear, but one month later, she came to know that accused No.1 has taken her and she has lodged the complaint. She has identified appellant/accused No.1. Some suggestions were made and she has denied all suggestions as false. Ofcourse, she has not given exact dates of incidents, that does not mean that her evidence cannot be believed. Admittedly, she is an illiterate woman and her thumb impression is available on record. Therefore, her evidence should be appreciated keeping in mind her age (75 years) and she being an illiterate and villager. She has denied the suggestion that as she has refused to take the victim and has kept her in a hostel. All other suggestions are denied. Therefore, her evidence has to be taken into consideration in view of other evidence.
16. PW-3 is the son-in-law of PW-2. He has also stated that CW1 and CW-3 came to their house stating that accused No.1 has committed rape on the victim and the victim stayed in their house for about one month. But on one day, when he and his wife went to work and came back, they could not find the victim in their house. When they enquired, 14 the neighbours told that a boy came and took the victim on the motor cycle. Immediately, he informed CW-2 and CW-3 that the victim is not found in the house and they searched for the victim. Thereafter, they came to know that this appellant/accused has kidnapped her. He also stated about the accused threatening the victim and committing rape on her. Ofcourse, he is an circumstantial witness. Though he is relative of CW-3 and 4, his evidence cannot be disbelieved. He has denied the evidence that CW-2 and 3 were harassing the victim and were giving her the household work. He also denied the suggestion that the victim was informing the matter to the parents of accused No.1 and parents of accused No.1 were showing courtesy on the victim. This evidence will also not help the accused in any way, on the other hand, it corroborates the evidence of other witnesses.
17. PW-4 is the neighbour of PW-2 who has stated that she is neighbour of CW-1 and CW-3. She came to know that accused No.1 committed rape on the victim. Her evidence is a hearsay evidence.
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18. PW-5 is brother of accused No.3. He has stated that the victim was brought by accused No.1 to Sedam and accused No.3 brought her to his house to stay for one night. On the next day, accused No.3 took the victim to Sedam, dropped her near accused No.1 and went to Oodi. Later, he came to know accused No.1 has kidnapped the victim and brought her to Sedam. Ofcourse, his evidence is of not of much relevance.
19. PW-6 is the pancha for spot mahazar-Ex- P7(house of CWs-4 and 5). He has identified his signature, identified the photo Ex-P5.
20. PW-7 is the pancha to spot mahazar Ex-P8(Roof of shop) and photos Ex-P3 and P4.
21. PW-8 is the II Addl. Civil Judge and JMFC, Kalaburagi who has recorded 164 Cr.P.C. statement of the victim as per Ex-P2.
22. PW-9- is the Junior Doctor, District Hospital, Kalaburagi who has examined the victim and stated that the victim was a minor and according to the Dentist, the 16 radiological age of the victim is less than 18 years and accordingly, she has issued medical certificate Ex-P9. She has stated about the history written by the victim in Kannada language and as she could not understand Kannada properly, she used the translator at the time of examination. She has also stated that the victim informed her she had sexual contact two times in one year duration. The Doctor has stated that the hymen will not be intact even after sexual intercourse. But if the hymen is flexible, there may be chances for hymen intact even after sexual intercourse. The FSL report is marked as Ex-P10. Therefore, simply because hymen is not ruptured, it cannot be said that the victim was not subjected to sexual intercourse and section 7 of POSCO Act is not applicable.
23. PW-10 is the Doctor who has examined the accused and issued medical certificate as per Ex-P11.
24. PW-11 is the Head Mistress of Adarsha Kannada Higher Primary School, Nehru Ganj, Kalaburagi, who has given birth records to show the date of birth of the victim as 17 13.10.2004. Accordingly, Ex-P12 and Ex-P13 are the certificates which shows that the victim was a minor.
25. PW-12 is the Scientific Officer, Regional Forensic Science Laboratory, Kalaburagi, who has examined the sealed articles sent for examination and has given certificate. He is not cross-examined.
26. PW-13 is a driver by profession and pancha for seizure of Splendor Motor cycle as per panchanama Ex-P15 and photograph Ex-P6.
27. PW-14 is a coolie who has acquaintance of accused No.1 to 3 from whose house the victim was taken. But she has not supported the prosecution case.
28. PW-15 is the Office Asst. Administration, City Corporation who has given the Khata extract of the house Ex-P17, i.e., the place of incident.
29. PW-16 is the Junior Engineer who has prepared the spot sketch as per Ex-P18.
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30. PW-17 is the Superintendent working in the Children Home for Girls and she has stated that after enquiry, she wrote a letter to Mahila Police Station, Kalaburagi and intimated the matter. Information letter is marked as per Ex-P19. She is cross-examined. She has stated that the victim orally informed Child Welfare Committee about the sexual offence. Though some suggestions were made, she has denied the same.
31. PW-18 is the PDO, Gram Panchayath, Jeratagi who has issued demand register extract of house of Shivayya Basyya Mathpathi as per Ex-P20.
32. PW-19 is the Corporator who has received the information from CW-2 about the quarrel between supporters of accused and CW-2 and as the matter was not settled, he approached Chowk Police. Of-course, he has not stated about the act committed by the accused/appellant.
33. PW-20 is the DSP, DCRE, Kalaburagi and IO who has stated about the investigation done by her i.e., recording of statement of witnesses and conducting the panchanama. Some suggestions were made in the cross- 19 examination as to whether, she has enquired about the mobile number of the victim. She has denied the suggestion that she has created Ex-P1 complaint, Ex-P16-statement of PW-14 and Ex-P21-statement of PW-19. Some suggestions were made. She has denied the entire suggestions.
34. PW-21 is the Police Inspector, Gandhi Chowk Police Station who has signed the records to transfer the concerned case papers which are marked as Ex-P27, 28 and
29.
35. On assessing the entire case of the prosecution, it is evident that as far as the offence under section 7 of the POCSO Act is concerned, there is evidence which cannot be disbelieved. Section 7 of POCSO Act reads as under:-
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.
36. So in view of this section, if the evidence on record by the prosecution is perused, then there is legally admissible evidence to show that the accused committed 20 sexual assault on the victim with an sexual intent and there is involvement of physical contact. Simply because, hymen was not ruptured, it cannot be said that there is no sexual assault within the meaning of section 7 of POCSO Act. Even the Doctor has opined that even in incomplete penetration, there is possibility of hymen not rupturing. Therefore, the learned Sessions Judge has rightly appreciated the evidence and has convicted the accused for the offences punishable under sections 343 of IPC and section 7 of POCSO Act, 2012.
37. As far as section 366A IPC is concerned, learned counsel argued that said section is not applicable to this accused as ingredient of the offence that the accused has forced or seduced the victim to have illicit intercourse with another person is not made out. So learned counsel argued that said section is not applicable. At the most, the offence may fall under section 363 IPC. I have perused section 366A which reads as under:-
366A. Procuration of minor girl- 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 21 without penetration is said to commit sexual assault.
38. On perusing said section, it is evident that so as to complete the offence under section 366A IPC, the following ingredient must be proved that:-
1. The minor girl was under the age of 18 years and she was induced by the accused.
2. The minor girl is induced to go from any place to do any act.
3. The minor girl is induced with intent that she may be or knowing it is likely that she will be forced to seduced to illicit intercourse with another person.
39. Here in the present case, though it is proved by the prosecution that the victim is below 18 years and she is induced to go from any place with intent to do any act, but the ingredient that she is forced or seduced to have illicit intercourse with another person is not proved, because, it is the accused who had intent to sexually assault her. 22
40. In this regard, learned counsel has relied on the following decisions:-
1. Iqbal V. State of Kerala, (2007) 12 SCC 724, wherein, the Hon'ble Supreme Court at para 9 has held as under:-
9. The residual question is of applicability of Section 366-A IPC. In order to attract Section 366-A IPC, essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act.
2. The Coordinate Bench in the case of Ramakrishna V. State of Karnataka passed in Crl.A.No.2376/2005 dated 12.03.2013 held at paras 13 and 14 as under:-
13. "So far as the offence under Section 366A IPC is concerned, it is relevant to note that the prosecution has to establish that the minor girl was under the age of 18 years and she was induced to go from any place to do any act with intention that such girl may be seduced to illicit intercourse with another person, then only the provision of Section 366A IPC are attracted.
14. As the appellant did not take the victim or seduced her with an intention to have 23 illicit intercourse with another person, the said provision is not applicable. Therefore, the conviction even for the offence punishable under Section 366A IPC is not attracted."
3. Learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of Sat Parkash v. State of Haryana, AIR ONLINE 2015 SC 514, wherein the Hon'ble Supreme Court at para 5 has dealt with charge with reference to section 366A and held as under:-
5. The charge with reference to Section 366A of the Penal Code needs a closer examination. Section 366-A of the Penal Code is extracted hereunder:
"366A Procuration of minor girl -
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
A perusal of the aforesaid section reveals that the inducing of the minor to constitute an offence under Section 366A, should have been with reference to an intent to force or seduce her"... to illicit intercourse with another person...". In fact, there is no mention of any other person in the sequence of allegations levelled against the appellant.
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6. In the above view of the matter we are satisfied that the charge under Section 366-A IPC was also not sustainable against the appellant. For the reasons recorded hereinabove, we are of the view that the impugned order passed by the High Court convicting the appellant under Section 366A of the Penal Code is also liable to the set aside. The same is accordingly hereby set aside.
4. Learned counsel also relied on the judgment of Co-ordinate Bench of this Court in the case of Yamanappa V. State of Karnataka passed in Crl.A.No.2506/2013 dated 06.07.2020, wherein learned Single Judge has dealt offences under section 366-A and 376 IPC and at para 15, 16 and 17 has dealt with the ingredients required to prove the offence under section 366A IPC, wherein it is held as under:-
15. "The ingredients of offence punishable under Section 366A of IPC are; firstly, that the accused must induce a girl; secondly, that the person induced was a girl under the age of 18 years;
thirdly, that the accused has induced the victim knowing that it is likely that she will be forced or seduced to an illicit sexual intercourse; fourthly, that such intercourse must be with that person other than the accused; fifthly, that the inducement caused the girl to go there in the place or to do any act.
16. The last three ingredients are not present in the case on hand.
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17. As the appellant did not take the victim or seduced her with an intent to have illicit intercourse with another person, the said provision is not applicable. Therefore, the conviction even for the offence punishable under Section 366A of IPC is not attracted."
5. Learned counsel also relied upon the Division Bench judgment of this Court in the case of State of Karnataka V. S.R. Mahesh, AIR ONLINE 2020 KAR 2733(in Crl.A.No.524/2014 dated 08.09.2020), wherein dealing with sections 376 and 366A IPC wherein the decision of the Hon'ble Supreme Court in the case of Sat Parkash V. State of Haryana and another reported in (2015) 16 SCC 475, it is held at para 16, 17 as under:-
16. Now coming to the arguments addressed by the learned Additional State Public Prosecutor in respect of framing of charges under Section 366A of IPC whether the ingredients are made out by the prosecution, it is worth to mention the provisions of Section 366A of IPC, which is as under:
"366A. Procuration of minor girl.--
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."26
17. A bare reading of Section 366A of IPC shows that the victim was not forced or seduced to illicit intercourse with another person. Here in this case, there is no such ingredient made out by the prosecution to show that the accused forced the victim or seduced to illicit intercourse with another person. In this regard, we rely upon the judgment of the Hon'ble Supreme Court in the case of Sat Parkash vs. State of Haryana and another reported in (2015) 16 SCC 475, on the following paragraphs:
"3. In view of the clear and unequivocal statement made by the deceased Sushila to the effect that she had left her residence by her own free will, it was not possible to record the guilt of the appellant under Section 363 of the Penal Code. This, on account of the acknowledgment that no other evidence had been produced by the prosecution to demonstrate that Sat Parkash had enticed the deceased Sushila to accompany him. The only evidence available is that Sushila was found in the residence of the appellant Sat Parkash. Based on the above factual position, it was presumed that the appellant had kidnapped the deceased. We are of the view that the above presumption is wholly misconceived and untenable.
4. The charges depicted in the charge sheet, extracted hereinabove, then takes us to Section 366 of the Penal Code. The dying declaration of Sushila indicates that she had committed suicide rather then having married the appellant - Sat Parkash by disregarding the wishes of the family. There is therefore substantial material on the record of this 27 case to establish that the deceased Sushila had not been persuaded or compelled to marry the appellant - Sat Parkash before she committed suicide. In fact, the culpability of the appellant under Section 366 of the Penal Code has been considered by us at our own, even though there was no express charge against the appellant under the above provision. We are satisfied that even on the basis of the allegations levelled against the appellant, based on the evidence produced before the trial Court, it would not have been possible to convict the appellant even under Section 366 of the Penal Code.
5. The charge with reference to Section 366A of the Penal Code needs a closer examination.Section 366-A of the Penal Code is extracted hereunder:
"366A Procuration of minor girl Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be,or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
A perusal of the aforesaid section reveals that the inducing of the minor to constitute an offence under Section 366A, should have been with reference to an intent to force or seduce her"... to illicit intercourse with another person...". In fact, there is no mention of 28 any other person in the sequence of allegations levelled against the appellant.
6. In the above view of the matter we are satisfied that the charge under Section 366-A IPC was also not sustainable against the appellant. For the reasons recorded hereinabove, we are of the view that the impugned order passed by the High Court convicting the appellant under Section 366 of the Penal Code is also liable to the set aside.
The same is accordingly hereby set aside.
41. In view of the principles stated in the above decisions, if the present offence under section 366A IPC is concerned, then, it is evident that the learned Sessions Judge has come to the conclusion that the accused committed the offence under section 366A IPC is not supported by legal evidence and it will not stand in law. Therefore, the conviction of the said appellant for the said offence needs to be set-aside and he needs to be acquitted. However, it is evident that the victim was a minor and there is evidence that the accused took the victim girl from the lawful guardianship of PW-2 without her consent. She has no parents and it is the grandmother who is her guardian and she was kept in her relatives' house PW-14. Therefore, the 29 accused has to be sentenced for offence under section 363 IPC. Since offence under section 366A IPC is not applicable to be major offence, the accused could be convicted under section 363 IPC, even there being no charge framed under section 222 Cr.P.C.
42. On overall appreciation of the evidence, it is evident that there is corroboration in the evidence of the prosecution witnesses as far as offences under sections 366A and 343 IPC and section 7 of POCSO Act is concerned. The learned Sessions Judge has rightly acquitted the accused for the offence punishable under section 376(2) (i) and (n) of IPC.
43. Therefore, I find no ground to interfere with the finding of the learned Sessions Judge as far as convicting the accused for the offences punishable under sections 343 IPC and section 7 of POCSO Act is concerned.
44. It is seen that the appellant is in custody for nearly four years one month. The learned Sessions Judge has given benefit of section 428 Cr.P.C. It is evident that the victim being a minor without knowing the consequences and 30 this appellant being 21 years are involved in this type of offences.
45. Looking to the circumstances under which the sexual act is committed by the accused on the victim, in my considered view, the sentence of imprisonment needs to be modified looking into the period of pendency of trial and appeal. The punishment for 363 IPC is imprisonment for a term which may extend to seven years and shall also liable for fine. Therefore, the appellant is hereby sentenced to imprisonment for a period of three years and a fine of Rs.50,000/- in respect of offence under section 366A IPC. The learned Sessions Judge has stated that all the sentences shall run concurrently. It is evident that the appellant has already undergone imprisonment for four years one month, ends of justice will be met by imposing imprisonment for the period already undergone by him. As far as sentence of fine for other offences is concerned and payment of 31 compensation is concerned, said order needs no interference.
46. Therefore, I pass the following:-
ORDER
1. The appeal is allowed-in-part.
2. The judgment of conviction and order of sentence dated 01.10.2020 passed by II Addl.
Sessions Judge, Kalaburagi in Special Case(POCSO) No.35/2018 is modified as under:-
a. The appellant/accused is acquitted of the offence punishable under section 366A IPC.
Instead of that, the appellant/accused is convicted for the offence punishable under section 363 IPC and is sentenced to undergo simple imprisonment for a period of three years and a fine of Rs.50,000/- and in default of payment of fine, he shall further undergo simple imprisonment for a period of six months.
b. The sentence of rigorous imprisonment for five years for the offence punishable under 32 section 7 of POCSO Act is modified to the period of imprisonment already undergone by the appellant/accused in judicial custody.
c. The payment of fine of Rs.50,000/- for the said offence under section 7 of POCSO Act stands confirmed.
d. The order of payment of Rs.1,00,000/-
(Rupees One Lakh only) as compensation out of the fine amount deposited by the appellant/accused and disbursal of the same to the victim under section 357 Cr.P.C. is also hereby confirmed.
3. Rest of the order of the trial court stands confirmed.
Sd/-
JUDGE *MN/-/sdu