Karnataka High Court
Ningappa Alias Kuddaningappa S/O ... vs The State Of Karnataka on 11 November, 2024
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CRL.A No. 100300 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100300 OF 2023
BETWEEN:
NINGAPPA @ KUDDANINGAPPA
S/O. KARIYAPPA MADAR @ PUJARI,
AGE: 46 YEARS,
R/O: JUMANAL, VIJAYAPUR TALUK AND DIST.
ROHINAL, BASAVANA BAGEWADI TALUK.
...APPELLANT
(BY SRI M.A. KAMANDAR, ADV. FOR APPELLANT)
Digitally signed by
MOHANKUMAR B AND:
SHELAR
Location: HIGH THE STATE OF KARNATAKA,
COURT OF BY ITS STATE PUBLIC PROSECUTOR,
KARNATAKA HIGH COURT OF KARNATAKA, DHARWAD,
THROUGH BAGALKOT TOWN P.S.
...RESPONDENT
(BY SRI ABHISHEK MALIPATIL, HCGP FOR RESPONDENT NO.1
PW2 SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 02.11.2022 AND ORDER OF SENTENCE DATED 04.11.2022
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOTE IN SPL.C.67/2019 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 363, 354, 354A, 354B, 376, 511, 506 OF IPC SEC.
6, 8 AND 10 R/W SEC.18 OF THE POCSO ACT.
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED
ON 01.10.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100300 of 2023
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) In this appeal filed under Section 374(2) of Cr.P.C., the accused has challenged his conviction and sentence for the offences punishable under Sections 363, 354, 354A, 354B, 376, 511 and 506 of IPC and Sections 6, 18, 8 and 10 r/w 18 of POCSO imposed by the Trial Court vide the impugned judgment and order dated 02.11.2022, in SPl.Case No.67/2019 on the file of the II Additional District and Sessions Judge, Bagalkote.
2. For the sake of convenience, the parties are referred to by their ranks before the trial Court.
3. A charge sheet came to be filed against accused, alleging that on 28.09.2019 at 1.30 pm, while prosecutrix aged 12 years went to the Kirana shop to buy puffed rice (ZÀÄgÀĪÀÄÄj) on her bicycle, accused falsely representing that he know her father and he has requested for a flower pot and he would give the flower -3- CRL.A No. 100300 of 2023 pot to her, took her to a sugar cane field belonging to one Godi and in order to commit sexual assault on her pulled her hands, breast and tried to strangle her and thereby committed offences punishable under Sections 363, 354, 354A, 354B, 376, 511 and 506 of IPC and Sections 6, 18, 6, 8 and 10 r/w 18 of POCSO Act. It is further alleged in the charge sheet that accused is a habitual offender and similarly involved in Crime Nos.173/1997, 40/1998 of Jamakhandi P.S. and Crime No.105/2017 of Golgumbaz P.S., Vijayapura and convicted and sentenced.
4. The accused pleaded not guilty and claimed trial.
5. On behalf of the prosecution, 13 witnesses are examined as PWs-1 to 13, Exs.P-1 to 50 and MOs' 1 to 6 are marked.
6. During his statement under Section 313 of Cr.P.C., accused has denied the incriminating evidence led by the prosecution.
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7. Accused has not led any defence evidence, but, he has got marked portion of the statements of PWs.7 and 8 as Exs.D.1 and 2.
8. Vide the impugned Judgment and order, the trial Court convicted the accused for the offences punishable under Section 363 of IPC and Section 6 r/w 18 of POCSO Act, with an observation that the offences under Sections 354, 354A, 354B, 376, 511, 506 of IPC and Sections 8 and 10 of POCSO will merge with the offences for which he is convicted.
9. Aggrieved by the impugned Judgment and order, accused has filed this appeal contending that he is innocent of the offences alleged and has been falsely implicated. His conviction and sentence are contrary to the law, well established procedure and probabilities of the case. The Trial Court has erred in not framing proper charges against the accused. The Trial Court has failed to analyse the entire evidence in proper perceptive. Since last four years, accused is in judicial custody. The testimony of PW2 is hearsay as he is not an eye witness. -5- CRL.A No. 100300 of 2023 The Investigation Officer has not cited the person on whose arrival the accused allegedly left the place and thereby prosecutrix was saved. Viewed from any angle, the impugned judgment and order are not sustainable and pray to allow the appeal and acquit him.
10. On the other hand, learned HCGP supported the judgment and order passed by the trial Court and sought for dismissal of the appeal.
11. Heard elaborate arguments of both sides and perused the record.
12. Thus, it is the definite case of the prosecution that on 28.09.2019, when the prosecutrix had gone to a Kirana shop to buy puffed rice (ZÀÄgÀĪÀÄÄj), accused under the guise of giving her a flower pot, kidnapped her and tried to commit sexual assault on her and she was saved due to the arrival of an elderly person after which accused slipped away from the place.
13. As rightly pointed out by the learned counsel for the accused, the Investigation Officer has not chosen -6- CRL.A No. 100300 of 2023 to examine and cite the person on whose arrival accused left the prosecutrix and ran away. Consequently, the prosecution was not able to examine him in support of its case. Therefore, only the evidence of prosecutrix is available to connect the accused with the allegations made against him.
14. In order to prove the age of the prosecutrix, the prosecution has relied upon the evidence of PW.6 Jayanti Das, Head Mistress of St. Anne's Lions Primary School, Bagalkot. She has deposed that since three years she is working in the said school. Prosecutrix has studied from 1st to 7th standard in that school and as per the records, her date of birth is 29.11.2007 and at the request of the concerned police, she has issued the certificate at Ex.P30. At the time of her evidence, she has also produced the Admission Register and it is marked as Ex.P31. It correspond with the details of prosecutrix given in Ex.P30. It is pertinent to note that in respect of the incident, complaint is filed by the father of prosecutrix by name Veeresh S/o Rudrayya Hiremath as per Ex.P.11. In -7- CRL.A No. 100300 of 2023 Ex.P30, the name of the father of prosecutrix is given as Veerabhadrayya.
15. In fact, during her cross examination, PW.6 has admitted that prosecutrix is not the daughter of Veeresha and at the time of her admission, they have not taken the birth certificate of the prosecutrix. However, she has denied that the prosecutrix was born during 2006 and wrongly they have entered her year of birth as 2007. So far as the name of father of the prosecutrix is concerned, no suggestions are made to the prosecutrix who is examined as PW.1, her father who is examined as PW.2 and the Investigation Officers who are examined as PWs.10, 11 and 13 regarding the discrepancy in the name of the father of the prosecutrix. They would have been the proper persons more particularly, the father of the prosecutrix to explain the said discrepancy.
16. Having regard to the fact that the defence does not dispute the fact that proseuctrix studied 1st to 7th standard in St. Anne's Lions Primary School, Bagalkot, it would be proper to rely upon Exs.P30 and 31 and it prove -8- CRL.A No. 100300 of 2023 the age of the prosecutrix. During his evidence, PW.2 the father of the prosecutrix has also deposed that when the incident took place, prosecutrix was aged about 11 years. In fact, the defence has not at all cross examined PWs.1 and 2 with regard to the age of the prosecutrix. A suggestion is made to PW.6 that though the prosecutrix was born in 2006, in the records it is wrongly mentioned as 2007. But there is no material to show that the prosecutrix was born during 2006. Thus, through the testimony of PW.2 and PW.6 coupled with Exs.P30 and 31, the prosecution has proved that as on the date of the incident, prosecutrix was aged 11 years 10 months.
17. So far as the actual incident is concerned, PW.1 the prosecutrix has deposed that on the date of incident, when she was going to the Kirana shop on her bicycle, accused spoke to her saying that he know her father and he has requested the accused for a flower pot and took her to a sugar cane field. While she was moving ahead accused was following her and all of a sudden, he pushed her to the ground and caught hold of her neck. Suddenly, -9- CRL.A No. 100300 of 2023 an old person appeared on the scene and demanded accused as what he is doing. Accused replied that they have come to collect mud for Dasara festival.
18. At this stage accused told the prosecutrix that he would give her Rs.500/- and she should not tell anyone about the incident or else he will not leave her alive. On the arrival of an old man, she escaped from the accused and left the place with her bicycle. She has also deposed that while they were near Chincholi hospital, accused put a kerchief on her nose after which she followed him in a semi conscious condition. At her house, when her parents questioned about her clothes being soiled, initially, she told them that she fell in mud, and when they insisted to tell the truth, she disclosed the incident.
19. The testimony of PW.2-the father of the prosecutrix is hearsay sofar as the actual incident is concerned. After coming to know about the same, he has filed the complaint.
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CRL.A No. 100300 of 2023
20. The testimony of PW.1 that accused managed to take her with him is corroborated by the photographs at Exs.P4 and 10 which are the printouts taken from the CC TV footage of the camara fixed at the residence of PW.7 Jayesh Vasantaray Shah. He has deposed that on the date of incident, i.e. 28.09.2019, the concerned police came and verified his CC TV camera and copied the footage in the pen drive. He has identified Exs.P3 to 10 as the photographs of the proseuctrix and accused moving together. During his cross examination, he has denied that from his CC TV, the view of the road is not visible. He has admitted that accused was not shown to him. He has denied the suggestion that Exs.P3 to 10 are not the photographs copied from his CC TV camera and he is giving false evidence.
21. At the outset, it is relevant to note that the complainant or his family members have no reason to falsely implicate the accused. In fact, no suggestions are made to the concerned witnesses by the defence as to why the accused would be falsely implicated, if the
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CRL.A No. 100300 of 2023incident as alleged has not taken place. Thus, from the material placed on record, the prosecution established that on 28.09.2019, when the prosecutrix was going to Kirana shop on her bicycle, accused took her to a sugar cane field with a promise to give flower pot.
22. Now, the next question is what exactly is the offence committed by the accused. Even though the trial Court has framed charges for the offences punishable under Sections 363, 354, 354A, 354B, 376, 506 read with Section 511 of IPC and Sections 6, 8 and 10 read with Section 18 of POCSO Act, vide the impugned judgment and order, it held that the accused is liable to be convicted for the offences punishable under Sections 6 read with Section 18 of POCSO Act and Section 363 of IPC. It also held that Sections 354, 354A, 354B, 376, 506, 511 of IPC will merge with the offences under POCSO Act. The trial Court has imposed punishment for the offences under Section 363 of IPC and Sections 6 and 18 of POCSO Act.
23. Section 3 of the POCSO Act defines the term penetrative sexual assault as under:-
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"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
Section 4 prescribes the punishment for penetrative sexual assault as under;-
4. Punishment for penetrative sexual assault.--[(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.
(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.]"
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24. Section 5 enlist the circumstances when the penetrative sexual assault becomes aggravated and Section 6 deals with the punishment for aggravated sexual assault. As per Section 5(m) when the prosecutrix is below the age of 12 years and as per Section 5(t) when the accused is previously convicted for the offence punishable under POCSO Act are two out of series of the circumstance of sexual assault becoming aggravated sexual assault. The trial Court held that even where the prosecutrix is held to be born during 2006, having regard to the fact that the accused is previously convicted in Sessions Case No.124/1998, this case would fall under Section 5(t) of POCSO Act. At the outset, it is relevant to note that while framing charge, the trial Court has not framed charge with regard to the accused being convicted previously for an offence arising out of POCSO Act, As required under Section 211(7) of Cr.P.C. and though the certified copy of the judgment in S.C. No.124/1998 by which accused is convicted for the offence punishable under Sections 376 and 506 of IPC is produced, it is not
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marked. Although Section 211(7) of Cr.P.C. make provision for the Court for adding such sentence by inserting allegations to that effect, in the present case, the trial Court has not utilised the said option and therefore, it is not open it to hold that in view of previous conviction the accused is guilty of aggravated penetrative sexual intercourse.
25. It is also relevant to note that, although the accused is proved to have kidnapped the prosecutrix with an intention to commit offence, fortunately, due to the appearance of an old man, who seems to be a shepherd, he did not succeed in his attempt. He only succeeded in pushing the prosecutrix on the ground and hold her neck. By that time, the old person appeared on the scene and questioned as to what he is doing. Accused replied saying that he is collecting mud and taking the opportunity, prosecutrix ran away from the spot. It appears the investigating officer has not made any serious attempts to find out who is the said old person was.
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26. Anyhow, through the evidence of the prosecutrix, the prosecution has proved that the accused enticed away the prosecutrix from the guardianship of her father, and before he could succeed in his attempt, due to the appearance of an old man, prosecutrix ran away from the spot. Therefore, there is no penetrative assault. At the most, the offence committed by the accused could be categorised as an attempt to commit sexual assault, which is punishable under Section 8 read with Section 18. Therefore, the trial court has erred in punishing the accused under Section 6 of the POCSO Act and sentencing him to undergo imprisonment for 10 years.
27. Section 18 prescribes the punishment for attempt to commit the offence under the POCSO Act and require that the accused be punished with one half of the longest term of imprisonment prescribed for the said offence. Under Section 8, the punishment prescribed for sexual assault is imprisonment of either description for a term which shall not be less than three years, but which may extend to 5 years and shall also be liable to fine.
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Therefore, the accused is convicted for the offence under Section 7 which is punishable under Section 8 read with 18 instead of Section 5, which is punishable under Section 6 read with Section 18 of POCSO Act. Having regard to the facts and circumstances, as required under Section 18, it would be appropriate and sufficient to sentence accused to undergo imprisonment for two and half years and also pay fine of Rs.10,000/- in default to undergo simple imprisonment for six months.
28. So far as the offence under Section 363 of IPC is concerned, the punishment prescribed is imprisonment of either description which may extend to seven years and also liable to fine. The trial Court has sentenced the accused to undergo imprisonment for seven years and pay fine of Rs.10,000/- in default of payment of fine, sentenced the accused to undergo imprisonment for one year. On the question of punishment discretion is vested with the Court so far as offence under Section 363 of IPC is concerned. Though the accused kidnapped the prosecutrix with an intention of committing the offences
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under the Act, he did not succeed in committing sexual assault. Taking into consideration the above facts and circumstances, this Court is of the considered opinion that sentencing the accused to undergo imprisonment for two years and pay fine of Rs.10,000/- in default to undergo further imprisonment for six months would meet the ends of justice.
In the result, the appeal is allowed in part and accordingly, the following;
ORDER
i) Appeal filed by the accused is allowed in part.
ii) The accused is convicted for the offence under Section 7 which is punishable under Section 8 read with Section 18 instead of Section 5, which is punishable under Section 6 read with Section 18 of the POCSO Act.
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iii) Accused is sentenced to undergo imprisonment for two and half years and pay fine of Rs.10,000/-, in default, to undergo further imprisonment for six months for the offence under Section 8 read with Section 18 of POCSO Act .
iv) The punishment for the offence under Section 363 of IPC is modified and accused is sentenced to undergo imprisonment for two years and pay fine of Rs.10,000/-, in default, to undergo further imprisonment for six months.
v) All the substantive sentences shall run concurrently. Accused is also entitled for benefit of set off under Section 428 Cr.P.C.
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vi) Accused is in judicial custody since 30.09.2019. He shall be released forthwith, if his presence is not required in any other case.
Sd/-
(J.M.KHAZI) JUDGE Ckk/Vmb CT: UMD