Karnataka High Court
Babulal @ Kubakya vs The State Of Karnataka on 22 June, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 200037/2017
BETWEEN:
BABULAL @ KUBAKYA,
S/O. MEERASAB TAMBOLI,
AGE:20 YEARS,
OCC: AGRICULTURE,
R/O.KOTYAL,
VIJAYAPURA TALUK AND DISTRICT.
... APPELLANT
(BY SRI. S.S. MAMADAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH TIKOTA POLICE STATION
VIJAYAPURA DITRICT
REPRESENTED BY ADDL. SPP
KALABURAGI BENCH
... RESPONDENT
(BY SRI. GURURAJ V. HASILKAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.PC. BY THE ADVOCATE FOR APPELLANT
PRAYING TO ADMIT THE APPEAL, CALL FOR RECORDS FROM
THE COURT BELOW AND SET ASIDE THE JUDGMENT OF
CONVCITION AND ORDER OF SENTENCE DATED 04.01.2017
AND 06.01.2017 RESPECTIVELY PASSED BY THE II
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ADDITIONAL SESSIONS AND SPECIAL JUDGE AT VIJAYAPUR IN
SPECIAL (POCO) CASE NO.33/2014 AND ACQUIT THE
APPELLANT/ACCUSED.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.06.2021, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' ALONG WITH IA NO.1/2021
FOR SUSPENSION OF SENTENCE AND BAIL THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused has filed this appeal under Section 374(2) of Cr.P.C. challenging the judgment of conviction and order of sentence dated 04.01.2017 and 06.01.2017 respectively passed by the II Additional Sessions and Special Judge at Vijayapura in Special Case (POCSO) No.33/2014, whereby the learned Sessions/Special Judge has convicted the present appellant/accused for the offence punishable under Section 5(m) of Protection of Children from Sexual Offences Act, 2012 ( for short, 'POCSO Act'), punishable under Section 6 of the said Act.
2. The brief facts leading to this case are that, the victim Vaishali is the daughter of the complainant- 3 Sangeetha; that on 28.09.2014 at 5.00 p.m., Vaishali, aged about 8 years was playing along with her friend- CW.4:Surekha Nagappa Bellubbi in front of the house of the complainant situated in Kotyal Village. Then the accused/appellant came there and under the guise of playing, took them to the land of CW.11-Shivalingawwa @ Bebakka Kumbar known as 'Gavi Hola" situated in front of Muktankar Temple, where the Tuwar Crop was grown, under the pretext of playing with them. The accused made CW.4-Surekha Nagappa Bellubbi to stand at some distance and taken the victim in side Tuwar Crop and removed her nikkar and made her to lay on the ground and committed rape on her knowing fully well that the victim girl was minor aged about eight years. Then the victim started crying and on hearing cry of victim girl, CW.4-Surekaha, who was made to stand at a some distance, also started crying. Hearing their cries, CW.5- Kaveri @ Kavya Bhimappa Ramathirth, who was proceeding nearby the said land, went inside the Tuwar 4 Crop and on seeing CW.5, the accused ran away. The complainant was not in station on that day and when she returned, the victim was crying because of stomach ache, and when the complainant enquired, the victim has narrated the entire incident and thereafter the complainant lodged a complaint and on the basis of the said complaint, Investigating Officer has registered a crime by issuing FIR. Thereafter, he apprehended the accused, drawn a mahazar and also recorded statement of the victim as well as other witnesses. He has also got done medical examination of the victim girl as well as the accused and having found that there is sufficient material against the accused, he submitted the charge sheet against the accused. He has also produced the accused before the Court and the accused was remanded to judicial custody. In the meanwhile, the bail petition filed by the accused came to be rejected.
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3. The learned Sessions Judge, thereafter, furnished the copies of the prosecution papers to the accused as contemplated under Section 207 of Cr.P.C.. The charge was framed against the accused and the same was read over and explained to the accused. Accused has pleaded not guilty.
4. In order to bring home the guilt of the accused/appellant, the prosecution has examined in all fifteen witnesses as PWs. 1 to 15 and got marked sixteen documents as per Exs. P1 to P16, and two material objects as per MOs. 1 and 2. Thereafter, the statement of accused/appellant under Section 313 of Cr.P.C. was recorded to enable him to explain incriminating evidence appearing against him in the prosecution case. Accused has denied all incriminating material placed against him and he has also got examined one witness by name Nannusab Noorsab Tamboli as DW.1.
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5. After completion of the evidence on both sides, in order to appreciate the oral and documentary evidence, the learned Sessions Judge, has framed the following points for consideration:
i) Whether prosecution proves beyond reasonable doubt that on 28.09.2014 at about 5.00 p.m., in front of Muktankar Temple situated in the land of Shivalingawwa Kumbar at Kotyal Village, Tq:
Vijayapur, accused committed sexual harassment on complainant's daughter Vaishali, D/o.Vijaykumar Tamboli, Aged 8 years and thereby committed an offence u/S.12 of POCSO Act, 2012?
ii) Whether prosecution proves beyond reasonable doubt that on above said date, time and place, accused committed aggravated penetrative sexual assault by committing rape on complainant's daughter Vaishali, D/o. Vijaykumar Tamboli, Age-8 years knowing fully well that she is minor and thereby committed an offence u/S.5(m) of POCSO Act, 2021 which is punishable u/S.6 of POCSO Act, 2012?7
6. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel at length, the learned Sessions Judge answered point No.1 in negative and point No.2 in affirmative and convicted the accused by order dated 04.01.2017 for the offence under Section 5(m) of POCSO Act and after hearing on sentence, by order dated 06.01.2017, sentenced the appellant/accused by imposing Rigorous Imprisonment of 10 years with fine of Rs.20,000/-, in default, to undergo imprisonment for three months. Being aggrieved by this judgment of conviction and order of sentence, the appellant/accused has filed this appeal.
7. Heard the learned counsel appearing for the appellant/accused and the learned High Court Government Pleader (for short, 'HCGP'). Perused the records.
8. The learned counsel the appellant/accused submitted that, the judgment of conviction and order of sentence is contrary to the facts of the case and evidence 8 on record. It is argued that the learned Sessions Judge has not properly appreciated the evidence in right perspective manner. He has also contended that the evidence of PW.1-Sangeetha/complainant is self-contradictory in respect of delay, which is not explained properly. The evidence of victim and PWs. 4 & 5 is not free from doubt and not reliable. It is also contended that the place wherein alleged rape was said to have been committed was a rough surface as per the evidence of PWs.2 and 14. But, there were no injuries found on the back of the victim girl and there was no damage to Tuwar Crop and there is discrepancy and material contradiction regarding the timings. The evidence of PW.9-Dr. Suma Mamadapur and FSL report does not support the case of the prosecution and statement of the victim recorded under Section 164 of Cr.P.C., is not acceptable, as it was not verified about the competency of the victim girl to give any statement as recorded by the Magistrate; that the trial Court has only relied on the evidence of interested witnesses and ignored 9 the fact that the appellant/accused has succeeded in rebutting presumption by attending circumstances and age of the victim is also not established; that the investigation was tainted one and the benefit of doubt was not extended to the appellant/accused. Hence, for these amongst other grounds, he has prayed for allowing the appeal by acquitting the appellant/accused of the charges levelled against him.
(i) Alternatively, the learned counsel for appellant has also contended that the appellant/accused is in custody for nearly seven years and the sentence may be set-off for the imprisonment already undergone by him and he sought for releasing him.
9. Per contra, learned HCGP has vehemently opposed the appeal contending that the evidence of the complainant and victim girl coupled with the eyewitnesses clearly establish sexual assault on the part of the accused, on the minor child. He further argued that the medical 10 evidence does not assist the accused in any way and he has failed to rebut the presumption. It is further asserted that, there is no reason for the complainant to falsely implicate the accused/appellant in this crime and the delay is also properly explained. Hence, he argued that, the trial Court is justified in imposing proper sentence and the present appellant/accused does not deserve any leniency considering his brutal act, that too sexual assault on a child. Hence, he sought for dismissal of the appeal.
10. After having heard the arguments, I have meticulously perused the documents produced before the Court. Now the following point would arise for my consideration:-
"Whether the impugned judgment of conviction and order of sentence passed by the trial Court calls for any interference by this Court?"
11. The prosecution in order to prove the guilt of the accused, has examined in all fifteen witnesses: 11
1) PW.1-Sangeetha is the mother of the victim and complainant, who has set the law in motion.
2) PW.2-Siddanagouda Patil is the spot-mahazar
witness, who has supported the case of
prosecution.
3) PW.3 is the victim child, while PW.4-Surekaha is
also a child and an eyewitness.
4) PW.5-Kaveri @ Kavya, who rushed to the spot of the incident immediately and PWs. 6 & 7 have also rushed to the spot immediately after the incident and got information regarding the incident from Victim and PW.4.
5) PW.8-Raju Mujumdar is an engineer, who has drawn the sketch of scene of offence as per Ex.P4.
6) PW.9-Dr. Suma Mamadapur has examined the victim child and deposed about she issuing her final opinion as per Ex.P8.
7) PW.10-Shivalingawwa @ Bebakka is the owner of the land known as 'Gavi Hola', wherein the alleged offence is said to have committed.12
8) PW.11-Shantappa Pattar, is a police constable, who deposed simply regarding handing-over FIR.
9) PW.13-Anand Waghmode has deposed regarding complaint being lodged before him and he registering it and issuing FIR and handing-over investigation to PW.14-Chandrashekar.
10) PW.15-Rajeshwari Puranik is the Judicial Officer, who had recorded the statement of the victim child under Section 164 of Cr.P.C.
12. Ex.P1 is the complaint and Ex.P2 and Ex.P.11 are the photographs of the spot. Ex.P3 is the spot mahazar and Ex.P4 is the sketch, Ex.P5 is the MLC requisition and other related documents pertaining to giving treatment to victim child. Ex.P7 is the medical report, while Ex.P8 is the final opinion. Ex.P9 is the FSL report and Ex.P10 is the medical report of the accused. Ex.P12 is the FIR. Ex.P13 is the Caste and Birth Certificate of the accused, which disclose that he was born on 06.06.1996. Ex.P14 is the Birth Certificate pertaining to 13 victim girl, which discloses that she was born on 16.08.2007. Ex.P15 is the ROR of the land, wherein the alleged incident has taken place. Ex.P16 is the 164 statement recorded by the Magistrate. On behalf of appellant/accused, DW.1-Nannusab Noorsab Tamboli was examined.
13. The specific case of the prosecution is that on 28.09.2014, PW.1-complainant-Sangeeta Jatti had been to Jambagi Village to attend funeral of her relative by leaving her daughter at home in Kotyal Village and when she returned home in the evening, the victim girl complained pain in stomach and she was crying. Then she enquired with the victim girl and the victim girl informed that while she was playing along with PW.4, the accused took her to Gavi Hola under the guise of playing and there he removed her nikkar and also removed his nikkar and tried to penetrate in the vagina of the child forcibly, and when the victim started crying, PW.4-Surekha, who was also 14 made to stand nearby itself, started crying and on hearing their cries, PW.5- Kava, who was nearby, rushed to the spot and on seeing her, the accused fled from the spot and PW.6 and PW.7 also came to the spot. Thereafter, the complainant got ascertained the genuineness of the information provided by the victim by consulting PW.4 and PW.5, and she has discussed the matter with the relatives and her brother-in-law, and initially she was hesitant to lodge a complaint worrying about the future of child, but later on, she decided to lodge a complaint and lodged a complaint, by setting the law in motion.
14. At the out set, the incident has taken place on 28.09.2014 around 5 'O' Clock in the evening. The complaint was lodged on 30.09.2014. The prosecution alleged that, appellant/accused has committed penetrative sexual assault on the child less than 12 years and hence, initial burden is on the prosecution to prove that the child is below 12 years. However, the defence 15 has not seriously disputed the age of the victim child. The incident has taken place on 28.09.2014. Ex.P14 is the Birth Certificate issued by the Head Master of Government School, which discloses that the victim girl was born on 16.08.2007. Hence, it is evident that, as on the date of the incident, the child was hardly eight years old. Hence, the provisions of POCSO Act are applicable.
15. The prosecution is completely relying on the evidence of PW.1 and PWs. 3 to 5 to bring home the guilt of the accused. PW.1 has simply set the law in motion after getting information from her daughter. But, PW.3- victim girl has categorically deposed that, on the date of incident she was playing along with PW.4-Surekah and the accused came and took both of them to Gavi Hola and by making PW.4-Surekha to stand at a distance, he took her inside Tuwar Crop, made her to lay on ground, removed her nikkar and removed his nikkar and slept on her and tried to penetrate his penis into vagina. The wordings 16 used by the victim in her own language clearly discloses that the accused has committed the penetrative sexual assault. The verbatim given by the victim is reproduced here:
''¸ÀÄgÉÃSÁ¼À£ÀÄß ¥ÀPÀÌPÉÌ ¤°è¹ £À£ÀߣÀÄß vÉÆUÀj ¨É¼AÉ iÀÄ°è PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV ªÀÄ®V¹ £À£Àß ZÀrAØ iÀÄ£ÀÄß PÀ¼ÉzÀ£ÀÄ. vÀ£Àß ZÀrAØ iÀÄ£ÀÆß ¸ÀºÀ PÀ¼ÉzÀ£ÀÄ. £ÀAvÀgÀ ªÉÄʪÉÄÃ¯É ©zÀÄÝ, £À£Àß 1PÉÌ ºÉÆÃUÀĪÀ eÁUÀzÀ°è CªÀ£À 1PÉÌ ªÀiÁqÀĪÀzÀ£ÀÄß ºÁQ wQÌzÀ£ÀÄ. DUÀ £À£ÀUÉ £ÀƸÀ°PÉÌ ºÀwÛ £Á£ÀÄ C¼ÁPÀ ºÀwÛzÉ£ÀÄ.'' (1) Further, The evidence of victim discloses that, PW.4-Surekah, who was standing nearby also started crying and then on hearing the cry, PW.5-Kavya came there and on seeing PW.5-Kavya rushing towards the spot, the appellant/accused ran away from the spot. The evidence of victim (PW.3) is completely corroborated by the evidence of PW.4-Surekha and PW.5-Kavya and apart from that, her evidence is also corroborated by the evidence of PWs. 6 and 7.
Further, accused has led the defence evidence of DW.1- Nannusab Noorsab Tamboli, who in his examination has deposed that, no such incident has taken place in his presence. 17 It is not the case of the prosecution that any incident has taken place in the presence of DW.1. Very interestingly, in the cross- examination of DW.1 itself, he has admitted that, he had heard about incident took place in Gavi Hola. But, he do not know the details. This assertion of DW.1, who is the defence evidence, establish that the incident did take place in the form of penetrative sexual assault on the victim girl. Further, this child witness does not have any animosity against the accused to give any false statement.
16. No doubt, there are certain minor contradictions regarding the complainant getting information from the victim etc. But, it is also important to note here that the defence has played all tactics to break the witnesses by prolonging trial. The examination chief itself was deferred and the accused went on changing counsels. Even the cross-examination of the victim girl and other witnesses were deferred for a long period and there was long gap between examination chief and cross- examination. Hence, minor discrepancies are bound to occur in natural course, otherwise, it will become a tutored evidence. The discrepancies itself clearly establish that the evidence is 18 natural one. Apart from that, the evidence of PWs. 1 and 3 to 5 is corroborated by the medical evidence of PW.8 and Exs.P7 and P8.
17. No doubt, the final opinion as per Ex.P8 disclose that, there was no evidence suggestive of vaginal or anus intercourse, but it clearly establish that there is evidence of genital assault. The evidence of PW.9-Dr.Suma Mamadapur discloses that, on 30.09.2014, the victim girl was produced by a woman police constable of Rural Police Station, Vijayapura with history of rape and she along with Dr.Ingale, on 01.06.2014 examined her and noted down the findings in case sheet (Ex.P5). The medical report (Ex.P6) further discloses that, Libia Majora/Minora show patchy areas of redness with congestion. Forchettae shows 'V' Shape tare with inflammatory changes with exudates. Posterior. Commissure show tear with exudates, while hymen show vertical opening with thick red edges. Hence, these findings clearly disclose that there are certain injuries on the genetical organ of the victim child. During cross-examination, a suggestion was made that, 'such injuries on genetical organ can be caused because of itching 19 problem'. But, the medical officer has denied the said suggestion. Hence, injuries on genital organ as per the final opinion of Medical Officer clearly establish sexual assault on victim child.
18. The evidence of PWs. 3 to 5 is fully corroborated by medical evidence as well as evidence of Doctor. The delay in lodging complaint cannot be said to be fatal, and it is quite natural. The complainant since lost her husband thought future of her child and after discussing with her brother-in-law, decided to lodge a complaint. Hence, there is a conclusive evidence against the appellant/accused in this regard.
19. Learned counsel for accused contended that, the ingredients of penetrative sexual assault are not attracted in the instant case as per Section-3 of the POCSO Act. He argued that, there is absolutely no penetration and even the evidence of PW.9 along with final opinion in Ex.P8 discloses genital assault and no signs of vaginal or anus intercourse. Hence, he argued that there is no penetration, insertion and no application of mouth to other parts of the body. Hence, 20 Section-3 is not applicable. He argued that, utmost it amounts to sexual assault under Section 7 and it is punishable under Sections 9 or 10 of the POCSO Act and maximum punishment prescribed is seven years and minimum punishment is five years. Hence, he contended that the accused/appellant is languishing in jail for last more than five years and that the sentence may be set-off and he may be released.
20. Section-3 of POCSO Act reads as under:-
"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 21
(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." (1) Section-3(c) stipulates that, if a person 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, is said to have committed penetrative sexual assault. In the instant case, the appellant by removing nikkar of the victim and also removing his nikkar, he made the child to lay down on the ground and tried to penetrate in the vagina by inserting his penis. He could not do so, as the victim was crying and PW.5 rushed there, which compelled him to flee from the spot. As such, seminal stain was not detected as there was no complete penetration. But, he manipulated the vagina of the child to cause penetration and in the process, he has caused injuries to the vagina of the minor child, which clearly amounts to penetrative sexual assault. Hence, argument of the learned counsel for the appellant/accused that, 'there is only sexual assault' holds no water at all and question of reducing the sentence does not arise at all by recourse to Sections 7 and 10 of POCSO Act. The learned Sessions Judge has imposed 22 minimum sentence prescribed under the law ie., 10 years of Rigorous Imprisonment.
21. Looking to these facts and circumstances, the evidence on record clearly establish the guilt of the accused and prosecution has successfully established the offence alleged against the accused/appellant. The learned Sessions Judge after appreciating the oral and documentary evidence has analysed as to how the appellant/accused has changed the lawyers and delayed the trial and has given proper reasons for convicting the appellant/accused. Under such circumstances, question of interfering with the judgment of conviction and order of sentence passed by the learned Sessions Judge does not arise at all. Considering these facts and circumstances, I answer the point under consideration in the negative and proceed to pass the following:-
ORDER The appeal is dismissed. The judgment of conviction and order of sentence dated 04.01.2017 and 06.01.2017 respectively passed by the II Additional Sessions and Special Judge at Vijayapura, in Special Case (POCSO) No.33/2014 against the 23 appellant/accused, for the offence under Section 5(m) of POCSO Act, punishable under Section 6 of the said Act, is confirmed.
In view of dismissal of this appeal, the application-IA No.1/2021 filed for Suspension of Sentence and Bail, does not survive for consideration. Hence, the said application also stands dismissed.
Office is directed to send back the trial Court records to the concerned Court, long with a copy of this Judgment.
Sd/-
JUDGE KGR*