Karnataka High Court
State Of Karnataka, vs Shrekant S/O Hanamantappa Bilagi, on 26 August, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.A.NO.100043 OF 2017
BETWEEN
STATE OF KARNATAKA,
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
KESHWAOPUR POLICE STATION,
HUBBALLI,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DAHRWAD BENCH.
... APPELLANT
(BY SRI. V. M. BANAKAR, ADDL SPP )
AND
1. SHREKANT
S/O HANAMANTAPPA BILAGI,
AGE: 22 YEARS,
OCC: AGRICULTURE,
R/O: NAGASHETTIKOPPA,
HUBBALLI, DIST: DHARWAD.
2. MANIKHANT
S/O MANJUNATH BILAGI,
AGE: 21 YEARS,
OCC: AGRICULTURE,
R/O: NAGASHETTIKOPPA,
HUBBALLI, DIST: DHARWAD.
... RESPONDENTS
(BY SRI. AHMADALI RAHIMAN SHAH, ADV., )
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) AND (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE
TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 11.12.2015 PASSED BY THE II ADDL.
DISTRICT AND SESSIONS AND SPL. JUDGE AT DHARWAD IN
SPECIAL S.C. NO. 19 OF 2014 AND TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 363 AND 366 OF IPC AND SECTION 6 OF
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES
(POCSO) ACT 2012.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
B. M. SHYAM PRASAD, J, DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal calling in question the judgment in S.C.No.19/2014 on the file of II-Additional District and Sessions Judge and Special Judge at Dharwad (for short, "the Special Court"). The Sessions Court by the impugned judgment has acquitted the respondents of the offences punishable under Sections 363, 366 of the Indian Penal Code (for short "IPC") and Section 6 of the Protection of Children from Sexual Offences Act (for short "POCSO Act").
2. The prosecution's case against the respondents is as follows:
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2.1 Sri. M. R. Maruti Ramarayappa, the father of one of the victims lodged first information with the jurisdictional police stating that the victims were working at home and they were not seen after 7.00 am. The household looked for the victims, who could not be traced. Sri. Basavaraj Kale, who was working at a site under construction, informed Sri. M. R. Maruti Ramarayappa that the victims were seen traveling with the respondents in a white colour car.
2.2 The jurisdictional police based on the first information filed by Sri. M. R. Maruti Ramarayappa registered FIR in Crime No.74/2014 for offence punishable under Section 363 of IPC at 19:40:00 on 21.04.2014 and the FIR is filed with the learned Special Court on 21.04.2014 at 9.30 p.m. at his residence. The police personnel who were nominated to trace the victims and the respondents produced them before the investigating officer on 10.05.2014. 4
2.3 It is ascertained during the investigation that the respondents had kidnapped the victims, who are cousins, with the intent to seduce and to have physical intimacy with them. They were kidnapped from Nagashettikoppa, Dodda Oni, Hubli. The respondents took them to a farmhouse in Turuvekere village, Tumkur District, owned by a Benjamin D'souza. The respondents compelled the victims to stay overnight, and during the night, the first respondent had forcible sexual intercourse with one of the victim and the second respondent had forcible sexual intercourse with the other victim.
2.4 The statements of the victims were recorded under Section 164 of Cr.P.C., on 16.05.2014.
Meanwhile, the investigating officer submitted a request with the concerned jurisdictional Special Court to include the offence punishable under POCSO Act. The victims, in their statement under Section 164 of the Cr.P.C., have stated that they were in love with the respondents/accused. They accompanied respondents to 5 Navalur on 20.04.2014 and from Navalur, they went to Dharwad and from Dharwad to Tumkur and from Tumkur to Turavekere. On 23.04.2014, the victims married respondents respectively at Ganapathi Temple Turavekere. The victims lived with the respondents respectively as husband and wife while staying at a farmhouse referred to above and there was physical intimacy with them.
3. The investigating officer, after completing the investigation including medical examination of the victims and the accused, has filed charge sheet against the respondents for offence punishable under Section 363 and 366 of IPC and Section 6 of the POCSO Act. The Special Court, upon charge sheet being filed by the police against the respondents, and on securing the presence of the respondents, has framed charge against the accused/respondents for the offences punishable under Section 363, 366 of IPC and Section 6 of the POCSO Act. The respondents, when the charges were read over, have pleaded not guilty and claimed to be tried. 6
4. The details of the witnesses examined by prosecution to prove the case against the respondents are as follows:
• P.W.1 & P.W.2: are the victims. Their statements recorded under Section 164 of Cr.P.C. are as per Ex.P.1 & Ex.P.3.
• P.W.3: Sri Prakash B Halyal, is a pancha witness to the spot mahazar conducted at Nagashettikoppa village, which is marked at Ex.P.4 and he his signature is as per Ex.P.4(a). • P.W.4: Sri. M. R. Maruti Ramarayappa is the father of one of the victims, who lodged the complaint as per Ex.P.5.
• P.W.5: Sri Siddalingappa Badami is a panch witness to the seizure mahazar, which is marked at Ex.P.6.
• P.W.6: Sri Samuel is a pancha witness to the spot mahazar conducted at Turuvekere, which is marked at Ex.P.8.
• P.W.7: Sri Aadam Ali Nadaf, is the doctor who has medically examined the respondents and the victims and issued Ex.P.9 -Ex.P.14, which are 7 the corresponding Medical Examination Reports and the Proforma for Age Determination • P.W.8: Sri Benjamin Paul D'souza is the owner of the farmhouse at Turuvekere, where the respondents and victims have stayed. • P.W.9: Sri Basavaraj Kale is an independent witness who states that he saw the victims traveling in a car with the respondents on the alleged date of the incident.
• P.W.10: Sri Malinga Naik, is the manager of Raghavendra Lodge at Turuvekere who states that he knows the respondents, and on 21.04.2014 the respondents visited the lodge with one Udaykumar and booked two rooms for their stay with the victims. The victims were also present on the said day, and after staying there for two days, on 23.04.2014 they left the lodge.
• P.W.11: Smt. Chinnatai Shirahatti, is the PSI at the relevant point of time who has recorded the victims' statements as per Ex.P.2.
• P.W.12: Sri. Vishal Kamate, is the doctor who examined the victims and has issued Pathology Report dated: 15.05.2014 as per Ex.P.17 - 8 Ex.P.18. The FSL report dated: 28.10.2014 is marked separately as Ex.P.19.
• P.W.13: Smt.Uma Sannakki is the Headmistress working in Government Kannada Boys Higher Primary School No.15, Nagashettikoppa, who states that the victims have studied up to 7th standard in the said school and she produced school documents as per Ex.P.20 to 22.
• P.W.14: Allamprabhu Hiregoudar is the Police Inspector, who received the complaint as per Ex.P.5 by the complainant and registered the case in Crime No.74/2014 and submitted the FIR to the Magistrate Court, which is marked at Ex.P.23. He states that he visited the spot and drawn the spot mahazar at the spot of incident as per Ex.P.4.
• P.W.15: Basanagouda Patil is the PSI, who was deputed to search the accused as well as the victims and on securing them he produced them before the Investigating Officer, recorded the statement of the manager of the lodge-P.W.10, obtained register maintained in the lodge, which is marked at Ex.P.14, visited the farmhouse and drawn Ex.P.8 spot mahazar.
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5. The respondents, with consent, have got marked the charge sheet, complaint and the FIR as Ex.D1 to Ex.D3, which pertain to certain proceedings initiated against the victim's father and other family members under the provisions of the Prevention of Atrocities (Schedule Caste and Schedule Tribe Act) 1989. The respondents, in their statement under Section 313 of Cr.P.C, have denied the evidence against them, but have not led any evidence.
6. The Sessions Court has acquitted the respondents concluding that the prosecution is unable to prove that the respondents kidnapped the victims and they are guilty of the offence punishable under the POCSO Act. The Sessions Court has opined that there is nothing to connect the respondent with hiring a room in Raghavendra Lodge, Turuvekere, and the victims in their statements recorded under Section 164 of Cr.P.C., exculpating the respondents have stated that they voluntarily accompanied the respondents. The Session Court has also opined that the prosecution's further case 10 that the respondents stayed with victims in a farmhouse and they were apprehended from farmhouse, is not established inasmuch as P.W.8, the owner of the farmhouse, while stating that the respondents stayed with the victims for about 8 to 10 days in his farmhouse and vacated the farmhouse without any information, has failed to identify the victims. As regards the age of the victims, the Sessions Court has opined that Ex.P.20 to 22 (School Transfer Certificates and the Admission Register of the Government Kannada Higher Primary, Boys School, Nagashettikoppa, Hubli) has opined that the victims were minors as of the date of the offence.
7. The learned Additional State Public Prosecutor arguing in support of the appeal submits that the statements of the victims recorded under Section 164 of Cr.P.C. when read in conjunction with their deposition, demonstrate that the respondents have had sexual intercourse with the victims when they stayed at farmhouse in Turuvekere, Tumkur. The victims' consent for sexual intercourse would not be relevant because the 11 charge against the accused is for offence punishable under Section 6 of the POCSO Act. The prosecution is able to establish that the victims were below 18 years as of the date of the incident. The learned Additional State Public Prosecutor submits that in the absence of Matriculation certificate, a certificate issued by the School in which the victims studied would be permissible evidence. Accordingly, Ex.P.20 to 22 have been marked through the Headmistress of the school, where the victims were studying. As per these exhibits the first victim was born on 01.05.1997 and the second victim was born on 06.05.1997 and as such, as of the date of the incident, they were below 18 years. The defence/respondents have not placed any material to discredit the evidentiary value of these exhibits.
8. The learned counsel for the respondents urges that it is open to the respondents to demonstrate before this Court that the prosecution has failed to place on record sufficient evidence to establish that the victims were minors, and if the prosecution has failed to 12 establish that the victims were minors, then no offence under POCSO Act would be constituted. The victims were more than 18 years and indisputable evidence on record is that the first victim was in love with first respondent and the second respondent was in love with second respondent and they voluntarily accompanied the respondents and stayed with them in a farmhouse. These circumstances would not render the respondents culpable of any offence under Section 376 of IPC. The prosecution has failed to establish that the respondents compelled the victims to accompany them or stay in Raghavendra Lodge at Turuvekere, Tumkur District or any other place. Therefore, the necessary ingredients for the offence punishable under Section 363 of IPC are not established.
9. In the light of the rival submissions, the question that arises for consideration is:
"Whether the prosecution is able to establish beyond reasonable doubt that the respondents kidnapped minor victims and shared physical 13 intimacy with them, and whether the Sessions Court's finding that the prosecution has failed to bring home the guilt of the respondents/accused for the offence punishable under Section 363 and 366 of IPC and Section 6 of the POCSO Act is perverse or otherwise impermissible in law?"
10. It would be pivotal to the prosecution's case to establish that the victims were aged below 18 years and the victims were induced to accompany the respondents with the intent to have sexual intercourse with them. The Sessions Court has accepted Ex.P.21 to P.22 to conclude that the victims as of the date of occurrence of the incident were minors. This finding by the Sessions Court is being challenged by the learned counsel for the respondents, who have had the benefit of acquittal without an appeal.
11. The prosecution's case is that the victims were aged between 17 to 18 years and were students who had studied up to 7th standard. The prosecution has relied upon the School Transfer Certificates and Admission Register Extracts marked as exhibits through 14 the headmistress of the school where it is alleged that the victims studied up to 7th standard to establish the victim's age. However, the Headmistress is not the author of the entries in Ex.P.22/Admission Register Extracts based on which the School Transfer certificates as per Ex.P.20 and 21 are issued. Further, the Headmistress, to justify the date of birth as mentioned in Ex.P.22, tries to draw support, during her evidence, from the photocopy of the birth certificates carried with her. It is recorded that these photocopies were compared with Ex.P.22 and the age as mentioned in Ex.P.22 correspond to the photocopies of the birth certificates. It must be observed that despite being recorded that the photocopies were carried and the entries in the registers and certificates compared with such photocopies, the photocopies are not marked. If it were to be marked, it would have given the respondents an opportunity to cross-examine.
12. This Court is of the considered view that the prosecution should have put forward the best evidence 15 possible. The Hon'ble Supreme Court in Jarnail Singh Vs. State of Haryana1, has reiterated that the age of the victim should be determined even for the purposes of POCSO Act applying Rule 12 of the Juveline Justice (Care and Protection of Children ) Rules, 2007 wherein, it is stipulated that age of a juvenile shall be decided by obtaining the matriculation or equivalent certificate, if available; and in the absence thereof, by obtaining the date of birth certificate from the school first attended by the juvenile. There is no evidence to establish that the Ex.P.20, 21 and 22 pertain to the first school attended by the victims.
13. The victims, even according to the prosecution, were between 17 and 18 years, as of the date of the incident. The Sessions Court's finding that the victims were minor as of the date of the alleged incident, in the aforesaid circumstances will have be revisited by this Court even at the instance of the respondents, who have had the benefit of acquittal but 1 (2013) 7 SCC 263 and later decision in (2015) 7 SCC 773 16 have not filed the appeal, in view of the settled law that it would be open to the respondents/accused in an appeal filed by the State to demonstrate that a particular finding against them is erroneous or impermissible in law. If the victims are not minors aged below 18 years, no offence under POCSO Act would be constituted and therefore the acquittal for section 6 of the POCSO Act is justified, and no interference would be called for.
14. The prosecution's case is that the respondents, who were inimically disposed towards the victims family because of the differences between the families, induced the victims to accompany them threatening the victims saying that they should carry 15 tollas of golden jewels with them. The prosecution relies upon the evidence of P.W.1 and P.W.9, the father of one of the victims and a worker engaged in the construction work in the property next to the victims' residence. The father's testimony both as regards the motive and inducing the victims to accompany the respondents, will have to be assessed with greater circumference in the 17 facts and circumstances of the case. The victims in their statement recorded under Section 164 (5) of Cr. P.C have stated that they have gone with the respondents on their volition because they were in love with the respondents. One of the victims even in her evidence has reiterated the same. The assertion that the victims were threatened to carry gold with them is incredulous given the very nature of the allegations in the facts and circumstances of the case. When the complainant's evidence is so appreciated, this Court is of the considered view that the Sessions Court has rightly disbelieved his evidence as regard ingredients that makes offence under Section 363 and 366 of IPC.
15. The evidence of P.W.9 is only that he saw the victims travel with the respondents while he was watering the construction. It is settled law that if a girl, who is on the verge of attaining majority, or has attained majority and is capable of knowing the full import of her conduct, has gone on her own accord with an accused, offence punishable under Section 363 and 366 of IPC is 18 not made out. The statements of victims, and the testimony of one of the victims, are clear that they have gone on their own volition. This creates reasonable doubt about the prosecution's entire case. As such, the Sessions Court's finding as regards acquittal of the respondents/accused for the offence punishable under Section 363 and 366 of IPC and Section 6 of the POCSO Act does not call for interference.
For the foregoing reasons, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE yan