Karnataka High Court
Modin Sab vs The State on 29 March, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 1782 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 1782 OF 2021
BETWEEN:
MODIN SAB,
AGED ABOUT 54 YEARS,
S/O. HUSEN SAB,
R/O. 9TH CROSS,
NEAR ANJANEYA TEMPLE,
HOSA CAMP, SJM NAGARA,
DAVANAGERE-577 002.
...APPELLANT
(BY SRI. CHIDAMBARA G S.,ADVOCATE)
AND:
THE STATE,
BY WOMEN POLICE,
DAVANAGERE-576 001.
Digitally
signed by REPRESENTED BY THE
LAKSHMI T STATE PUBLIC PROSECUTOR,
Location: HIGH COURT BUILDINGS,
High Court
of BENGALURU-560 001.
Karnataka ...RESPONDENT
(BY SRI. K. NAGESHWARAPPA.,HCGP FOR R1)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 23.09.2021 AND ORDER OF SENTENCE DATED 24.09.2021,
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND SPECIAL JUDGE, AT DAVANAGERE IN S.C.NO.122/2019,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
511 R/W SEC.376 OF IPC AND SEC.10 OF POCSO ACT, 2012.
THE APPELLANT/ACCUSED IS SENTENCE TO UNDERGO
RIGOROUS IMPRISONMENT FOR 10 YEARS, AND TO PAY FINE OF
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CRL.A No. 1782 of 2021
RS.20,000/- AND IN DEFAULT OF PAYMENT OF FINE, HE SHALL
UNDERGO S.I FOR TWO YEARS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 511 R/W SECTION 376 OF IPC AND SECTION 10 OF
POCSO ACT.
THIS APPEAL, COMING ON FOR FINAL DISPOSAL, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and order dated 23.09.2021 passed by the II Additional District and Sessions Judge & Special Judge, Davangere in S.C.No.122/2019, whereby the learned Sessions Judge has convicted the accused/appellant for the offence punishable under Section 511 r/w Section 376 of IPC and under Section 10 of POCSO Act, 2012.
The trial Court has sentenced the accused to undergo R.I. for 10 years and to pay fine of Rs.20,000/- and in default of payment of fine, to undergo S.I. for two years for the offence punishable under Section 511 r/w Section 376 of IPC.
2. Heard the learned counsel for appellant and the learned High Court Government Pleader for respondent- State and perused the evidence and material on record. -3- CRL.A No. 1782 of 2021
3. The brief facts of the case are that, the first informant-PW1 is a member of Scheduled Caste and she is a resident of SJM Nagara, Davanagere. The victim girl-PW2 is her daughter. She was aged about six years at the time of incident. The accused is a neighbour. On 15.04.2019, at about 3.00 p.m., the victim was playing with her friends in front of the house of accused. Suddenly, she found missing. Therefore, the first informant went to the house of the accused in search of her daughter. She saw the accused had made her minor daughter lay on the cot and had removed her under garment. Further, he was removing his pant. She immediately went inside the house and brought her daughter back and lodged a complaint against the accused. The accused was arrested. Medical examination of the victim was conducted and her statement was recorded under Section 164 of Cr.P.C. On completion of the investigation, PW8 filed the charge sheet against the accused for offences punishable under Section 354(A) of -4- CRL.A No. 1782 of 2021 IPC, Section 8 of POCSO Act, 2012 and Section 3(1)(w) and 3(2)(v-a) of SC/ST (POA) Act, 1989.
4. Charges were framed against the accused for the aforementioned offences. Additional charges were framed under Section 10 of the POCSO Act r/w Section 511 of IPC.
5. The prosecution in order to establish the guilt of the accused got examined 09 witnesses and got marked 11 documents. The trial Court, vide impugned judgment dated 23.09.2021, convicted the accused for the offences punishable under Section 511 r/w Section 376 of IPC and under Section 10 of POCSO Act.
6. Ex.P1 is the complaint lodged by victim's mother. She is examined as PW1. The victim girl is examined as PW2. PW3 is an independent witness. PW4 is the sister of PW1. PW5 is the panch witness to the spot mahazar-Ex.P4. PW6 is the Head Constable who arrested the accused. PW7 is the Police Constable who went to the -5- CRL.A No. 1782 of 2021 spot and took the photographs as per Ex.P2 and issued Ex.P9 i.e., Certificate under Section 65(b) of the Evidence Act. PW8 is the Investigation Officer, who conducted investigation and filed charge sheet. PW9 is the Head Constable, who received the complaint from PW1 and registered the case.
7. Insofar as the charges framed under Section 3(a)(w) and 3(2)(v-a) of the SC/ST (POA) Act is concerned, the trial Court has held that to attract the said offence, the prosecution should have established that the accused used the victim knowingly that she is a member of the Scheduled Caste with an intention to sexually harass her. It is further held that the evidence on record would not indicate that the accused has committed the alleged offence on the victim only because she belongs to Scheduled Caste or that she was a person belonging to Adi Karnataka Caste. Hence, the trial Court held that the allegation against the accused that he by taking advantage of the caste of the victim, harassed her sexually, has not -6- CRL.A No. 1782 of 2021 been properly established and proved beyond reasonable doubt by the prosecution.
8. As per the evidence of PW1, on the date of incident, at about 3.00 p.m. her minor daughter was playing in front of the house along with her friends and thereafter her friends went to their house. She has stated that the accused had taken her minor daughter inside his house and removed her under garment and made her to lie on the cot. She has further stated that the accused had an intention to commit rape on her minor daughter.
9. The victim who is examined as PW2 has also deposed that the accused had removed his pant and removed her under garment. She has stated that the accused called her saying that he will give mangoes. She has denied the suggestion made to her that the accused has not undressed her.
10. PWs.3 and 4 have corroborated the evidence of PWs.1 and 2. The defence of the accused was that the -7- CRL.A No. 1782 of 2021 victim had asked the accused to give some money for which the accused refused and assaulted her and therefore a false case was foisted against him. The suggestion put to PWs.1, 2 and 4 in that regard has been denied by the said witnesses. There is nothing elicited in the cross-examination of PWs.1 or 2 to disbelieve their evidence or to deny that the accused had removed the underwear of the victim and also removed his pant and made the victim to lie on the cot. It is relevant to see that the incident took place at about 3.00 p.m. on 15.04.2019 and the complaint was lodged without much delay, on the same day at 4.45 p.m.
11. The charges were framed against the accused for the offences punishable under Section 354(A) of IPC, Section 8 of the POCSO Act, 2012 and Section 3(1)(w) and 3(2)(v-a) of SC/ST (POA) Act, 1989 and additional charge was framed under Section 10 of POCSO Act r/w Section 511 of IPC.
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12. As already mentioned, the trial Court has acquitted the accused of the charge under the provisions of SC/ST (POA) Act. The trial Court has proceeded to convict the accused for the offence punishable under Section 511 r/w Section 376 of IPC and Section 10 of POCSO Act. It is relevant to mention that there was no charge framed under Section 376 of IPC r/w Section 511 of IPC. In fact the application filed by the prosecution to recaste the charges for the offence punishable under Sections 376 and 511 of IPC came to be rejected by the trial Court vide order dated 24.02.2020.
13. The trial Court has come to the conclusion that the accused in order to commit an act of rape has removed the underwear of the victim and made her to lie on the cot and also removed his pant and at that time the complainant rushed into his house and therefore, the act of the accused clearly attracts Section 9(m) of the POCSO Act and he is liable for punishment under Section 10 of the POCSO Act. It is further held that the alleged act of the -9- CRL.A No. 1782 of 2021 accused is an act done in part execution of a criminal desire amounting to mere preparation and the act committed by the accused clearly goes to show that his only intention was to commit rape on the victim. The trial Court has proceeded to convict the accused under Section 511 r/w Section 376 of IPC holding that there are sufficient materials against the accused to show that he has attempted to commit rape on the minor victim.
14. What is relevant to be seen is that charges are not framed for the offence punishable under Section 376 of IPC r/w Section 511 of IPC, on the other hand, charges are framed under Section 10 of POCSO Act r/w Section 511 of IPC. However, while passing the order on sentence, the trial Court has erroneously observed that Section 511 r/w Section 376 of IPC is also charged against the accused. Obviously, the punishment prescribed for the offence under Section 376 of IPC is higher than the punishment prescribed for the offence under Section 10 of the POCSO Act. When there is no charge framed under
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CRL.A No. 1782 of 2021Section 376 r/w Section 511 of IPC, the trial Court was not justified in convicting the accused for the said offence.
15. The specific case of the prosecution is that the accused had removed the underwear of the victim and also removed his pant and made the victim lie on the cot and at that time PW1 entered the house and took the victim to her house. It is useful to refer to the decision of the Hon'ble Apex Court in Koppula Venkat Rao vs State Of Andhra Pradesh, reported in 2004 (3) SCC 602. Paragraphs-10 and 11 of the said judgment are extracted hereunder:
"10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the
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intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit a rape. Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect".
16. Even from the evidence available on record, it cannot be held that there was an attempt of rape committed by the accused. Without the charges framed
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CRL.A No. 1782 of 2021under Section 376 r/w Section 511 of IPC, particularly, when the application filed by the prosecution to frame additional charge for the said offence was rejected, the trial Court was not justified in convicting the accused for the said offence.
17. Admittedly, the victim was a minor girl, aged below 08 years at the time of incident. The defence has not disputed the age of the victim. On a careful appreciation of the evidence and material on record, the same reveal that the accused has committed sexual assault on the victim. The victim being a minor aged below 12 years, the offence committed by the accused would fall under Section 9(m) of the POCSO Act, 2012, which is punishable under Section 10 of the said Act. The punishment prescribed for the said offence is imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. Hence, the following:
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CRL.A No. 1782 of 2021
ORDER
i. The appeal is partly allowed.
ii. The judgment and order dated 23.09.2021
passed by the II Additional District and Sessions Judge & Special Judge, Davangere in S.C.No.122/2019, convicting and sentencing the accused/appellant for the offence punishable under Section 511 r/w Section 376 of IPC is hereby set aside.
iii. The appellant/accused is convicted for the offence punishable under Section 10 of the POCSO Act, 2012 and he is sentenced to undergo R.I. for a period of five years and to pay a fine of Rs.20,000/-, and in default of payment of fine, to undergo S.I. for one year.
iv. The appellant/accused is entitled to the benefit of set off under Section 428 of Cr.P.C.
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v. The compensation awarded by the trial Court out of the fine amount and rest of the order shall be intact.
I.A.No.1/2021 filed for suspension of sentence and bail stands disposed of.
Sd/-
JUDGE TL List No.: 1 Sl No.: 17