Karnataka High Court
Ravi vs State Of Karnataka on 26 July, 2023
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CRL.A No.711/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.711/2019 (C)
BETWEEN:
RAVI
S/O VENKATESHA
AGED ABOUT 44 YEARS
OCC: COOLIE
R/AT KATTEMANE VILLAGE
JAYAPURA, KOPPA TALUK
CHIKKAMAGALURU- 577 123 ...APPELLANT
(BY SRI N.R.KRISHNAPPA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ALDUR P.S.
Digitally REP BY SPP
signed by HIGH COURT BUILDING
PRABHU
KUMARA BENGALURU-560 001
NAIKA
Location:
High Court of 2. KUM. JISMITHA
Karnataka D/O LATE SUNDARA
AGED ABOUT 23 YEARS
OCC: HOUSEWIFE
R/AT HEBBALAGADDE
KUNDURU, MUDIGERE TALUK
CHIKKAMAGALURU ...RESPONDENTS
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II FOR R1;
R2 SERVED & UNREPRESENTED.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 17.01.2018 PASSED BY THE I
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CRL.A No.711/2019
ADDITIONAL SESSIONS AND SPECIAL JUDGE, CHIKKAMAGALURU
IN SPL.CASE (PCSOA) NO.12/2016 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 448, 376(2)(i)(n), 506 OF IPC UNDER SECTION
5(j)(ii),5(l) READ WITH SECTION 6 OF PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012 AND UNDER SECTION 3(2)(V)
OF THE SCHEDULED CASTES AND SCHEDULED TRIBES
(PREVENTION OF ATROCITIES) ACT, 1989.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the order of conviction and sentence passed against him for the offences punishable under Sections 448, 376(2)(i)(n), 506 of IPC, under Section 5(j)(ii), 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short 'SC/ST (POA) Act'), the accused in Special Case (PCSOA) No.12/2016 on the file of the I Additional Sessions and Special Judge, Chikkamagaluru has preferred this appeal.
2. The appellant was the sole accused in Special Case (PCSOA) No.12/2016. He was prosecuted in the said case for the offences punishable under Sections 448, 376(2)(i)(n), 506 IPC, under Section 5(j)(ii), 5(l) read with -3- NC: 2023:KHC:26048-DB CRL.A No.711/2019 Section 6 of the POCSO Act and Section 3(2)(v) of the SC/ST (POA) Act on the basis of the charge sheet filed by Aldur police in Crime No.240/2015 of their police station. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
3. The case of the prosecution is as follows:
The victim belongs to the scheduled tribe. The accused was non scheduled caste/tribe person. PW.3 is the elder brother of PW.1 the victim. PW.1 was then aged 16 years. The accused was friend of PW.3 and used to visit the house often. Whenever the accused worked in Aldur Village, he used to stay in the house of PW.3. In the month of March 2015, in similar fashion he had stayed in the house of PW.3. During the said stay when PW.1 was alone in the house, on 10.03.2015 at 11.30 a.m. he committed criminal trespass into the house and aggravated sexual assault on PW.1. In similar fashion he repeated the same for about 5 to 6 times.
He threatened to commit her murder, if she reveals the incident to her mother or brother. Due to the said assault, the victim conceived a child. On 07.11.2015 when the victim, PW.3 and their mother were traveling in auto-rickshaw they met with accident. During that time, all of them were -4- NC: 2023:KHC:26048-DB CRL.A No.711/2019 medically examined. During such medical examination, it was found that PW.1 was seven months pregnant. On enquiry she divulged the incident to her brother and mother.
4. The Police Sub-Inspector of Aldur police station gets information and on his instructions PW.10 the then Assistant Sub-Inspector of police of Aldur police station visited the hospital and recorded the statement of PW.1 as per Ex.P1 and submitted the same before the Police Sub- Inspector. On the basis of such complaint, he registered the first information report as per Ex.P15 in Crime No.240/2015 against the accused and handed over the investigation to the Deputy Superintendent of Police. Then the victim was produced before PW.5 for medical examination. He examined the victim and issued medical examination report as per Ex.P5. The victim was produced before the jurisdictional Magistrate and her statement was recorded as per Ex.P6. The Deputy Superintendent of Police on completing the investigation filed the charge sheet against the accused for the aforesaid offences.
5. The trial Court on taking cognizance of the offences, secured the accused and on hearing both side, -5- NC: 2023:KHC:26048-DB CRL.A No.711/2019 framed the charges against him for the offences punishable under Sections 448, 376(2)(i)(n), 506 of IPC and Sections 5(j)(ii), 5(l) read with Section 6 of POCSO Act and Section 3(2)(5) of SC/ST (POA) Act. The accused denied the charges and claimed trial. Therefore the trial was conducted.
6. In support of the case of the prosecution, the prosecution in all examined PWs.1 to 11 and got marked Exs.P1 to P16. No material objects were marked. The accused during his examination under Section 313 of Cr.P.C., disputed the evidence against him. He did not lead any defence evidence.
7. The trial Court on hearing both the parties by the impugned judgment and order held that the accused was non scheduled caste person. The trial Court further held that the accused committed aggravated sexual assault on the victim leading to her pregnancy. The trial Court further held that the accused committed sexual assault and criminally intimidated her. The trial Court convicted the accused for the offences punishable under Sections 448, 376(2)(i)(n) and 506 IPC, under Section 5(j)(ii), 5(l) read with Section 6 of the POCSO -6- NC: 2023:KHC:26048-DB CRL.A No.711/2019 Act and Section 3(2)(v) of the SC/ST (POA) Act and sentenced him as per the table below:
Sl. Offences under Sentence of Fine in Default No. Section imprisonment Rs. sentence
1. 376(2)(i)(n) of RI for 10 years 25,000/- SI for 2 IPC years
2. 5(j)(ii), 5(l) r/w RI for 10 years 25,000/- SI for 2 6 of POCSO Act years
3. 448 of IPC SI for 6 months 2,000/- SI for 1 month
4. 506 of IPC SI for 1 year 5,000/- SI for 3 months
5. 3(2)(v) of Life 25,000/- SI for 2 SC/ST (POA) imprisonment years Act The said order of conviction and sentence is challenged in this appeal by the accused.
Submissions of Sri N.R.Krishnappa, learned Counsel for the accused:
8. The victim being below 18 years was not proved. PW.8 did not speak on what basis he issued certificate Ex.P10. As per the evidence of PWs.1 and 3, the accused was residing in their house with consent of PW.3. Therefore the conviction for the offences punishable under Section 448 of IPC does not sustain. There was inordinate delay in filing the complaint. After the victim was in advanced stage of pregnancy, the matter was reported to the police. That goes to show that there was no criminal intimidation and the -7- NC: 2023:KHC:26048-DB CRL.A No.711/2019 relationship was consensual one. The evidence on record does not show that the accused was aware that PW.1 belongs to the scheduled tribe and he committed alleged offences for the purpose of caste based discrimination. Therefore the charge for the offence punishable under Section 3(2)(v) of the SC/ST (POA) Act does not sustain. During the relevant time, the punishment prescribed for the offences punishable under Sections 376(2)(i)(l) & (n) of IPC was seven years. Therefore sentencing the accused for 10 years imprisonment is unsustainable. The sentence and fine imposed for the offences punishable under Section 448 of IPC exceeds the prescribed limit. Therefore the sentence for the offence punishable under Section 448 of IPC is also unsustainable. If this Court holds that the conviction is sustainable, considering the age, social background of the accused and having regard to the facts and circumstances, the period of detention already undergone by him, the sentence of imprisonment may be confined to the period of detention already undergone by him. In support of his submissions, he relies on the following judgments:
(i) Manoj Mishra @ Chhotkau v. The State of Uttar Pradesh1 1 (2021) 10 SCC 763 -8- NC: 2023:KHC:26048-DB CRL.A No.711/2019
(ii) Katkam Raajanna v State of A.P2 Submissions of Sri Vijayakumar Majage, learned State Public Prosecutor-II:
9. PW.1 and PW.3 categorically stated that PW.1 was aged 16 years at the time of the offence. Their evidence was further corroborated by the evidence of PW.8 Head Master of the school where PW.1 studied. That was further corroborated by the evidence of PW.5 the doctor who examined her. The fact of the accused committing aggravated sexual assault was proved by the evidence of victim PW.1 and that was corroborated by the evidence of her brother PW.3, the doctor PW.5 and the Official witnesses. She conceiving a child as unwedded mother and giving birth to a child were not disputed. PW.1's evidence that she belongs to the scheduled tribe was not disputed in her cross examination. By the above evidence the prosecution discharged initial burden of proof. Therefore the presumptions under Sections 29 and 30 of the POCSO Act come into operation. Such presumption was not rebutted by the accused. Though the accused was permitted to stay in the house of PWs.1 and 3, the moment he develops criminal 2 2010 Crl.L.J.3812 -9- NC: 2023:KHC:26048-DB CRL.A No.711/2019 intention to commit offence or intimidate, Section 441 of IPC gets attracted. Therefore there is no merit in the contention that the order of conviction and sentence is not sustainable. The judgment in Manoj Mishra's case relied on by the learned Counsel for the accused is not applicable to the facts of the case. The appeal deserves no merit.
10. Considering the submissions of both side and on examination of the records, the points that arise for consideration are:
(i) Whether the prosecution has established that PW.1 victim was aged below 18 years?
(ii) Whether the prosecution established beyond reasonable doubt that the accused committed aggravated sexual assault on the victim in her house and consequently she became pregnant?
(iii) Whether the prosecution established that the accused on committing the sexual assault on PW.1, criminally intimidated her and he committed criminal trespass?
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(iv) Whether the order of conviction for the offences punishable under Section 3(2)(v) of the SC/ST (POA) Act is sustainable?
(v) Whether the impugned order of sentence is sustainable?
Reg. Age:
11. To prove the age of the victim, the prosecution relied on the evidence of PW.1 the victim herself, PW.3 her brother, PW.8 the Head Master in which school PW.1 studied, PW.5 the doctor who examined PW.1. PW.1 in her evidence categorically stated that at the time of the offence, she was aged 16 years. In the cross-examination of PWs.1 and 3, they state that PW.1 studied upto 5th standard and she was dropped out from the school after 5th standard.
12. The Hon'ble Supreme Court in the judgment in Mahadeo vs. State of Maharashtra3 held that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which apply for determination of the age of the juvenile in conflict with law is equally applicable for determining the juvenile in need of care and protection. Referring to Rule 3 (2013)14 SCC 637
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 12(3) of the said Rules, the Hon'ble Supreme Court held that in such cases, the Court has to rely on the following documents:
(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat; and in the absence of any of the above,
(iv) Ossification test will be resorted to.
13. In the present case, PW.1 studying in Aldur School upto 6th standard was not disputed. PW.8 being in- charge head master of Government Girijana Ashrama during the relevant time was also not disputed. In the cross- examination, he deposed that on the requisition of the Investigating Officer, he examined the School Admission records of PW.1 and on that basis issued Ex.P10 the school certificate. He also deposed that as per the school records, the date of birth of PW.1 was 26.04.2000. The offence is said to have committed on 10.03.2015. If that is taken into
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 consideration, the victim was aged 15 years plus at the time of the incident. In the cross-examination of PW.8 the victim studying in the said school was not disputed. It was only attempted to suggest that he has not examined the records to issue Ex.P10. As against that the accused himself specifically suggested that as on the date of admission in the said school, PW.1 was aged 5 years 10 months. The evidence of PW.8 was corroborated by the evidence of PW.5 the doctor who examined the victim and his report Ex.P5. By such evidence, the victim being aged below 18 years as on the date of the offence was proved beyond reasonable doubt. Reg. Aggravated sexual assault:
14. PW.1 is the victim. She stands on par with the injured eyewitnesses. Under such settled position regarding the evidence of the victim of sexual assault, the Court has to examine her evidence. PW.1 has categorically stated that her father was not alive. Herself, her mother and her elder brother PW.3 were living together in their house. She further deposed that the accused was close friend of PW.3 and used to come and stay in their house frequently. She has further deposed that in January 2015, he came to her house with
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 PW.3 from Shabarimala and stayed there. During such stay on 10.03.2015 at about 11.00-11.30 a.m. when she was alone at home, accused came to her house and committed aggravated sexual assault on her and intimidated her of her life if she reveals the incident to anybody. She further deposed that in the similar fashion, the accused came to her house when she was alone and committed repetitive aggravated sexual assault, consequently she became pregnant. She also deposed that when herself, PW.3 and her mother met with an accident, they were taken to the hospital and during such medical examination it was revealed that, she was seven months pregnant. Then PW.3 informed police, police recorded her statement as per Ex.P1 and she was sent to medical examination. She also deposed about she giving statement before the Magistrate as per Ex.P6. In her entire cross-examination, the accused being the friend of PW.3 or visiting their house and staying in their house was not denied. He staying in her village during the relevant time was also not disputed. As against that, it was suggested that they were allowing the accused to stay at their house to see that, the accused marries the victim. The accused himself suggested in para No.20 of the cross-examination of PW.3
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 that with an intention to perform her marriage with the accused, despite she becoming pregnant, they had not filed the complaint. In her cross-examination, she conceiving a child and delivering a child is also not disputed. The only defence of the accused in her cross-examination is that she was interested in marrying him, therefore, he was falsely implicated in the case.
15. The evidence of PW.1 and her cross-examination was not impeached. The said evidence was corroborated by the evidence of PW.5, the doctor who examined her after filing the complaint. PW.5 says that PW.1 was brought to the hospital on 26.11.2015 and on police requisition he examined her and issued report as per Ex.P5. In Ex.P5, while giving history PW.1 has named the accused as perpetrator of the crime and she also stated that she was subjected to penetrative sexual assault five to six times and last such act was about two months prior to her examination. That evidence was further corroborated by the evidence of PW.3 the brother of PW.1. PWs.1, 3 and 5 had no animosity against the accused to falsely implicate him.
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16. Much was argued about the delay in filing the complaint. The victim was a girl and had not even completed 16 years of age. When such girl is subjected to such kind of sexual abuse, it cannot be said that she should respond or react in a particular manner. It is well settled law that in the cases involving such heinous offences more particularly involving the children, the delay in filing the complaint shall not be blown out of the proportion. Therefore, the nondisclosure of the crime by PW.1 to others or delay in filing the complaint does not demolish the entire case of the prosecution.
17. The evidence of PWs.1, 3 and 5 was further corroborated by the evidence of PW.10 the Assistant Sub Inspector of Aldur police station. She says that the Police Sub Inspector got the information and he directed her to visit the house of PW.1 and record her statement. Accordingly, she recorded the statement Ex.P1 and submitted the same to PW.11 the Police Sub Inspector. PW.11 says that on the basis of the complaint, he registered the FIR Ex.P15. By such evidence, the initial burden of proving the charges under the POCSO Act stood discharged. Therefore, the presumptions under Sections 29 and 30 of POCSO Act start operating.
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 Therefore, it was for the accused to rebut such presumption. In the examination of the accused under Section 313 Cr.P.C, absolutely there was no explanation nor he led any defence evidence. Therefore, the presumption under Sections 29 and 30 of POCSO Act regarding the commission of offence and culpable mental state of the accused in committing offence was not rebutted. The trial Court on judicious appreciation of the evidence held that the accused is guilty of the charges for the offences punishable under Section 376(2)(i)(n) of IPC and Section 5(j)(ii), 5(l) read with Section 6 of POCSO Act. Reg: Section 448 of IPC:
18. So far as the offences under Section 448 of IPC, even assuming that the accused had stayed in the house of the victim with the consent or approval of PW.3, so long he stays in such house without any intention of committing any offence that does not amount to trespass. Reading of Section 441 of IPC shows that even if a person lawfully entered into a property, if he unlawfully remains there with an intention to commit an offence or to intimidate, insult or annoy, that amounts to criminal trespass.
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19. First of all PW.1 has deposed that the accused used to barge into the house taking chance of her being alone in the house with an intention to commit offence. Even otherwise, on he entering the house, if he stays there with an intention to commit the offence against her, that amounts to criminal trespass which is punishable under Section 448 of IPC. Therefore, the submission that stay of accused in the house of PWs.1 and 3 does not amount to criminal trespass cannot be countenanced.
Reg: Section 506 of IPC:
20. So far as offence under Section 506 of IPC, PW.1 deposed that accused committed the offence threatening her and thereafter, he threatened her not to reveal the incident to anybody. Merely because she divulged that belatedly does not lead to suspecting her evidence with regard to Section 506 of IPC, that too having regard to her juvenility and her social and economic background. Therefore the trial Court was justified in convicting the accused for the offence under Section 506 of IPC based on such evidence.
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 Reg: Section 3(2)(v) of SC & ST (POA) Act:
21. So far as the offence under Sections 3(2) (v) of SC/ST (POA) Act, the victim belonging to Scheduled Tribe and accused being non-Scheduled Caste or Tribe person are not in dispute. To prove the said charge, as per the law in force during the relevant time, the prosecution had the burden to establish that such offence was committed for the purpose of caste based discrimination. As rightly pointed out by the learned Counsel for the appellant/accused neither in the evidence of PWs.1 and 3 nor in the evidence of any other witnesses, it was elicited that the accused committed the offence with an intention that she should be so humiliated or harassed for she being a person belonging to the Scheduled Tribe. The trial Court failed to notice this lapse in the evidence on the part of the prosecution. Therefore, conviction for the offence under Section 3(2) (v) of SC/ST (POA) Act is not sustainable.
Reg. Sentence:
22. By the impugned order, the trial Court has sentenced the appellant/accused for the offences punishable under Section 376(2)(i)(n) IPC and under Section 5(j)(ii) and
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 5(l) read with Section 6 of the POCSO Act to Rigorous Imprisonment for ten years and fine of Rs.25,000/-.
23. Relying on the judgment of the Hon'ble Supreme Court in Manoj Mishra's case referred to supra it was contended that the sentence of imprisonment shall not have exceeded ten years. The reading of the said judgment shows that, in that case the Hon'ble Supreme Court has not accepted the prosecution version regarding the victim being below 18 years. Therefore, the sentence was reduced to seven years. The offences under Section 376(2)(i) and (n) IPC as on the date of offence in this case carried imprisonment not less than 10 years which may extend up to imprisonment for life. Only by way of Amending Act 22 of 2018, Section 376(2)(i) of IPC was deleted.
24. The minimum punishment prescribed under Section 6 of the POCSO Act was not less than 10 years, which may extend up to imprisonment for life. Therefore, the contention that the trial Court should have imposed punishment up to seven years cannot be accepted. Therefore, the judgment in Manoj Misra's case referred to supra is not applicable to the facts of the case.
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25. So far as the submission that the accused shall be shown indulgence, the records show that at the time of commission of the offence, the accused was aged 40 years, whereas the victim was 15 plus years. The accused was already married and was having children. PW.3 reposing the trust in the accused, permitted him to stay in the house. In breach of such trust, the accused became a predator for PW.1 who was a very tender aged girl and who had lost her father. Not only once the accused committed offence, he committed repetitive sexual assault on her. Any such offences against the children or not only the offence against them, but they are offences against the society. By such act of the accused the whole childhood of the victim is destroyed and devastated. Therefore, there are no grounds to show indulgence in favour of the accused.
26. So far as the sentence under Section 448 of IPC, the prescribed sentence is imprisonment up to one year and fine which may extend up to Rs.1000/-. Therefore, the imposition of fine of Rs.2000/- for the said offence is in excess of prescribed fine under Section 448 of IPC. The sentence needs to be modified only on that point. For the
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 aforesaid reasons, the appeal deserves to be allowed in part. Hence, the following:
ORDER The appeal is partly allowed.
The impugned order of conviction and sentence for the offence punishable under Section 3(2)(v) of SC/ST (POA) Act is hereby set aside.
The impugned order of conviction for the offences under Sections 376(2)(i)(n), 506 of IPC and under Section 5(j)(ii), 5(l) read with Section 6 POCSO Act is hereby confirmed.
The impugned order of sentence for the offences under Section 376(2)(i)(n) and 506 of IPC and under Section 5(j)(ii), 5(l) read with Section 6 POCSO Act hereby confirmed.
The impugned order of sentence for the offence punishable under Section 448 of IPC is modified as follows:
For the offence punishable under Section 448 of IPC the accused is sentenced to rigorous Imprisonment of 6 months and fine of Rs.1000/-. In default to pay the fine amount, he shall undergo simple imprisonment for one month.
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NC: 2023:KHC:26048-DB CRL.A No.711/2019 All the sentences shall run concurrently. The accused is entitled to the benefit of set off as per Section 428 of Cr.P.C.
The trial Court shall issue modified conviction warrant accordingly.
Communicate this order and transmit the records to the trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE KSR, PKN List No.: 1 Sl No.: 12