Karnataka High Court
State Of Karnataka vs Sri Anwar @ Prince on 11 August, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 1524/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.1524/2016 (A)
BETWEEN:
STATE OF KARNATAKA
BY PULIKESINAGAR POLICE STATION
BANGALORE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001 ...APPELLANT
(BY SRI SHANKAR H.S., HCGP)
AND:
1. SRI ANWAR @ PRINCE
S/O MOHAMED ISMAIL
AGED ABOUT 58 YEARS
R/AT NO.6, 2ND FLOOR
5TH B CROSS, HUTCHINS ROAD
ST.THOMAS TOWN
BENGALURU - 560 005
2. SHRI SHAREEF S/O SHAKUR
AGED ABOUT 51 YEARS
C/O UMAR, R/AT NO.07
5TH B CROSS, HUTCHINS ROAD
ST. THOMAS TOWN
BENGALURU - 560 084 ...RESPONDENTS
(BY SRI MOHAMMED PASHA, ADVOCATE FOR R1;
R2 SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 29.04.2016 PASSED BY LIII ADDITIONAL CITY
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CRL.A No. 1524/2016
CIVIL AND SESSIONS JUDGE, BANGALORE AND SPECIAL COURT
(CCH-54) IN SPL.C.C.NO.257/2013 ACQUITTING THE
RESPONDENT-ACCUSED OF THE OFFENCES PUNISHABLE UNDER
SECTION 376 OF IPC AND SEC.5(j)(ii) R/W 6 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 19.06.2023, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, K.S.MUDAGAL J.,
DELIVERED THE FOLLOWING:
JUDGMENT
"Whether the impugned judgment and order of acquittal passed by the trial Court in Special C.C.No.257/2013 suffers patent illegality or perversity?" is the question involved in this case.
2. Respondent No.1 was tried in the Special C.C.No.257/2013 on the file of LIII Additional City Civil & Sessions Judge (Special Court), (CCH-54) Bengaluru for the offences punishable under Section 376 of IPC read with Section 5(j)(ii) and Section 6 of the Protection of the Children from Sexual Offences Act, 2012 (for short 'POCSO Act') on the basis of the charge sheet filed by Pulakeshinagar Police in Crime No.279/2013 of their police station.
3. The said case was registered against the accused on the basis of the complaint filed by respondent No.2/PW.4. PWs.4 and 5 are the father and mother of -3- CRL.A No. 1524/2016 PW.6. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
4. PWs.4 and 5 were migrant labourers. Including PW6 they were having 11 children. At the relevant time, PW6 was aged 14 years. PWs.4 to 6 were working as watchman and maid respectively in the building of PW.3. The accused was neighbour of PW.3. In that way, the accused was acquainted with the family of PWs.4 to 6.
5. The case of the prosecution is as follows:
About four months prior to 07.09.2013 when PW.6 was playing on the street, the accused luring her of giving chocolate, took her to his house and committed penetrative sexual assault on her. Thereafter in the same fashion, he went on committing penetrative sexual assault on her. Consequently, PW.6 became pregnant. When PW.6 started vomiting, her parents took her to the doctor/PW.2 who examined her and informed them that PW.6 was 3-4 months pregnant. When they enquired her, she revealed about the accused sexually abusing her. On learning about the incident, PW.4 filed the complaint as per Ex.P8 before PW.7 the Sub Inspector of police of Pulakeshinagar police -4- CRL.A No. 1524/2016 station. On the basis of Ex.P8, PW.7 registered the first information report as per Ex.P11 against the accused for the offences punishable under Sections 376, 420 of IPC and Section 4 of the POCSO Act and handed over the investigation to PW.10. PW.10 on conducting the part of investigation, handed over further investigation to PW.9. PW.9 on completing the investigation filed the charge sheet against the accused.
6. During investigation, on the requisition of the Investigating Officer, PW.1 the doctor examined the victim and the accused. He issued Ex.P1 the victim's examination report and Ex.P2 the report of examination of the accused. Since PW.6 was pregnant, ossification test could not be conducted on her. As she had no formal schooling, her school records were also not collected in proof of her age. She was also not taken to the jurisdictional Magistrate for recording her statement under Section 164 of Cr.P.C. Based on the statements of PWs.2, 4 to 6 and the other evidence, charge sheet was filed for the aforesaid offences.
7. The accused denied the charges and claimed trial. Therefore the trial was conducted. In support of the case of the prosecution, PWs.1 to 10 were examined and -5- CRL.A No. 1524/2016 Exs.P1 to P12 were marked. The accused after his examination under Section 313 of Cr.P.C., did not lead any defence evidence.
8. The trial Court on hearing the parties by the impugned judgment and order acquitted the accused on the ground that the prosecution has failed to prove that the victim being aged below 18 years, the charges are not proved beyond reasonable doubt. The trial Court further held that the defence of the accused that PW.6 victim was major and her parents performed her marriage with the accused and she conceived due to conjugal rights was probabilised by the admissions of PWs.4 to 6.
9. Challenging the said order, the State has preferred the above appeal.
10. Sri H.S.Shankar, learned HCGP reiterating the grounds of the appeal submits that the evidence on record clearly shows that PWs.4 and 5 belonged to very deprived class of the society and they were tampered by the accused. Therefore, they did not support the case of the prosecution. He further submits that PW.6/victim supported the prosecution case and her evidence was sufficient to convict the accused. He submits that in the cases involving -6- CRL.A No. 1524/2016 heinous offences of sexual assault, solitary evidence of the victim is sufficient to convict the accused. He further submits that the trial Court committed error in picking and choosing stray sentences of PW.6 as admissions and acquitted the accused.
11. Per contra, Sri Mohammad Pasha, learned Counsel for the accused submits that this being an appeal against the order of acquittal, unless it is shown that the impugned judgment and order suffers patent illegality or perversity, this Court cannot interfere with the same only on the ground that another opinion is possible. He further submits that the victim being aged below 18 years was not proved by the prosecution. PWs.4 to 6 in unequivocal terms admit that the victim was married to the accused and out of the conjugal relationship she conceived. He submits that PW.6 was not happy with the marriage with the accused due to age difference and at the instigation of PW.3 the accused was falsely implicated in the case.
ANALYSIS
12. The charges against the accused were that the accused luring PW.6 aged 14 years with chocolates secured her to his house and committed aggravated penetrative -7- CRL.A No. 1524/2016 sexual assault on her for a period of four months prior to 07.09.2013 leading to her pregnancy. Thereby he has committed the offences punishable under Section 376 of IPC read with Sections 5(j)(ii) & 6 of the POCSO Act.
13. The defence of the accused was that PW.6 was aged above 18 years, her parents performed her marriage with him and out of such conjugal relationship, she conceived the child. He further contended that PW.6 was unhappy with her marriage with him as he was much elder to her, PW.3 who was his neighbour and was ill-disposed against him, taking advantage of the resentment of PW.6, instigated her to falsely implicate him in the case.
14. To sustain the charges, the prosecution was required to prove the following facts:
(i) At the time of the incident, i.e. four months prior to 07.09.2013, PW.6 was aged below 18 years.
(ii) The accused committed aggravated penetrative sexual assault on her.
(iii) The accused was required to probabilize his defence that PW.6 was aged above 18 years, she was married to him and out of such conjugal relationship, she conceived the child.-8-
CRL.A No. 1524/2016
Reg. Point Nos.1 and 2:
15. To prove that the victim was aged below 18 years, the prosecution relied on the evidence of PW.1/doctor who examined her, PW.2 the Radiologist, PWs.4 and 5 the parents of the victim, PW.6 the victim and the evidence of the police officers.
16. PWs.4 and 5 parents of PW.6 gave a total go- bye to the prosecution case. PW.4 though admitted his signature on Ex.P8 the complaint, denied his knowledge of the contents of the said document. He states that the police took his signature on Ex.P8 in the police station. Nothing is elicited by the public prosecutor in the cross-examination of PW.4 after treating him as hostile witness. In the cross- examination conducted by the defence Counsel, PW.4 admits that himself and his family were well acquainted with the accused and were sharing their joys and sorrows. He further admits that when they proposed to give PW.6 in marriage to the accused, PW.3 opposed on the ground that accused is an aged person and told him not to send PW.6 to the house of the accused. He also admits that he agreed to perform the marriage of PW.6 with the accused on the ground that he gets support from the accused and life of PW.6 will also be settled. He further admits that the -9- CRL.A No. 1524/2016 marriage talks were held in the house of the accused and three to four persons with Mowlvi participated in the marriage talks. They performed the marriage of PW.6 with the accused. He also admits that as himself and his family were staying in the accommodation given by PW.3, after marriage when PW.6's pregnancy was revealed, PW.3 took them forcibly to the doctor. He further admits that he had not informed PW.3 of the marriage of PW.6 with the accused, fearing that he may be removed from services. In the cross-examination by the defence Counsel, PW.4 further admits that PW.3 had got typed the complaint and got his signature on the same. He also states that he did not give birth certificate to the police as he did not possess the same. He admits that at the time of marriage, PW.6 was aged 19 years.
17. PW.5 the mother of PW.6 also did not support the case of the prosecution. In her cross-examination by the public prosecutor, nothing to advance the case of the prosecution could be elicited. In her cross-examination by the defence Counsel, she has spoken in tune with the evidence of PW.4 regarding PW.6 being 19 years, they voluntarily performing her marriage with the accused and PW.3 not being in good terms with the accused and he
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CRL.A No. 1524/2016opposing the marriage of PW.6 or PW.6 living in the house of the accused.
18. How the age of the Juvenile victim has to be proved was dealt with by the Hon'ble Supreme Court in 1 State of Madhya Pradesh. vs. Anoop Singh . In para 14 of the said judgment, referring to its earlier judgment in Mahadeo vs. State of Maharashtra2, it was held as follows:
"14. This Court in Mahadeo v. State of Maharashtra has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under:
"12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a) (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;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion 1 (2015) 7 SCC 773 2 (2013) 14 SCC 637
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will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
(Emphasis supplied)
19. Reading of the above judgment goes to show that in proof of the age of the victim, the Court has to first rely on the matriculation or equivalent certificate of the victim. If that is not available, the second option is to produce the date of birth certificate issued from the school where the victim first attended. In the absence of that the prosecution has to produce the birth certificate issued by a Corporation or Municipal authority or a panchayat. Only in
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CRL.A No. 1524/2016the absence of all the aforesaid documents, as last chance, ossification test shall be conducted.
20. The evidence of PWs.4 and 5 parents and PW.6 the victim herself shows that she did not have any formal education. The evidence on record shows that PWs.4 and 5 were migrant labourers, had 11 children and their financial condition was very poor. In view of the fact that PW6 had no school education, SSLC Marks card or school admission records were not available. Similarly, the evidence of PWs.3 to 6 show that her birth certificate were also not available. By the time the case was reported to the police, PW.6 was already pregnant.
21. PW.1 the doctor in his chief examination does not state on what basis in Ex.P1 the medical examination report, he entered the age of the victim as 14 years. In Ex.P1 he has mentioned that he assessed the age of the victim between 14-15 years based on her physical development. In the cross-examination, by the defence Counsel he admits that the police had given the brief information of the case in their requisition for medical examination. That goes to show that there was no concrete basis for him to assess the age of the victim.
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CRL.A No. 1524/2016
22. PW.2 the Radiologist who examined the victim regarding her gestation issued Exs.P4 to P6, but does not speak about determination of her age. In Ex.P4 he has entered the age of the victim as 13 years. PW.1 in Ex.P3 has mentioned her age as 14-15 years. Admittedly, she was not subject to ossification test on the ground that she was pregnant and at that stage conducting ossification test was not advisable.
23. The parents will be the best persons to speak about the age of their daughter PW.6. PWs.4 and 5 in their evidence state that at the time of the alleged offence, PW.6 was aged 19 years. Therefore what remained in proof of minority of PW6 is only her own evidence. In her chief examination, she does not state anything about her age. Only in the particulars of the witness, her age is mentioned as 16 years. PW.6 in her cross-examination admits that she has 10 other siblings and she does not know their age. She further admits that she has given her age as 16 years approximately and she does not know her accurate age. She unequivocally admits that she has not stated before the police whatever she has deposed by way of examination in chief.
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CRL.A No. 1524/2016
24. Even after PW.6 delivering the child, the Investigating Officer could have got conducted her ossification test to ascertain her age, which was not done. Secondly, the Hon'ble Supreme Court in para 58 of the judgment in Vinod Katara vs. State of Uttar Pradesh3 held that ossification/radiological test is not the conclusive proof of the age and a margin of plus or minus two years has to be given to the age arrived by such test. For better clarity para 58 is reproduced as below:
"Margin of error principle
58. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681: (AIR 2009 SC 2805): (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223:
(AIR 2008 SC 1696) : (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the 3 AIR 2022 SC 4771
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fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt"
25. Since this Court found the signature of the victim on the deposition, to rule out the chance of not getting her school records due to ineffective investigation, she was summoned before this Court to ascertain about her schooling and possibility of conducting ossification test at this stage. During her appearance before this Court, PW.6 revealed that she was an illiterate but during her stay in the Child Care Institution due to this case, she practiced subscribing her signature. As she was married to another person and in the advance stage of pregnancy out of such marriage, the option of subjecting her to the ossification test could not be materialized.
26. Under the POCSO Act, there is no statutory presumption with regard to the age of the victim. The presumption under Sections 29 and 30 of the POCSO Act is regarding commission of the offence and culpable mental state of the accused to commit such offence. It is the settled law that the prosecution has to prove its case beyond reasonable doubt. The same yardstick does not
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CRL.A No. 1524/2016apply to the accused in substantiating his defence. It is enough, if he probabilizes his defence. The above analysis of the evidence shows that the prosecution has failed to prove beyond reasonable doubt that at the time of the alleged offence, PW.6 was aged below 18 years.
27. PW.6 in her cross-examination unequivocally admitted that her parents were working as Security Guard and maid in the house of PW.3. She further admits that there was ill-will between PW.3 and the accused. She further admits that PW.3 secured her parents to the police station and obtained their signatures and she was not aware of the contents of the documents in which her signatures were taken. She also admits that she has deposed in the chief examination to the tune of the members of the Balamandira/Children Home. Such evidence probabilizes the defence of the accused that he was implicated in the case at the behest of PW.3. Reg. Charge under Section 5(l) & 6 of POCSO Act and Section 376 of IPC:
28. Once the age of PW.6 is not held proved, the POCSO Act becomes inapplicable. Therefore the charge under Section 5(l) and 6 of the POCSO Act fails. Therefore only the charge under Section 376 of IPC remains for
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CRL.A No. 1524/2016consideration. According to the prosecution, when PW.6 was playing on the road, the accused lured her of chocolates, took her into his house and committed repetitive penetrative sexual assault for a period of four months prior to 07.09.2013, consequently she became pregnant. The accused does not dispute his sexual cohabitation with PW.6 or she conceiving the child due to such cohabitation. But according to him, she was major and her parents themselves performed her marriage with him. Out of such conjugal relationship, she conceived. His further defence is that because of the age gap between him and PW.6, she was unhappy and PW.3 taking advantage of that and due to his ill-will falsely got him implicated in the case.
29. So far as the age of the victim, it is already held that the prosecution has failed to prove that she was aged below 18 years. Therefore the accused was required to probabilize his defence of marriage with PW.6 and conjugal cohabitation. As already discussed, PWs.4 and 5 the parents admitted that they performed the marriage of PW.6 with the accused. PW.6 also in her cross-examination admits that the accused and his family members asked her parents to give her in marriage to the accused. Though she
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CRL.A No. 1524/2016later turned round and denied the said suggestion, in her further cross-examination, she has given a clear admission as follows:
"ªÀÄzÀĪÉAiÀiÁzÀ £ÀAvÀgÀ DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ°èzÄÀ Ý UÀ©üðtÂAiÀiÁzÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸Àj"
The translation of the above statement is as follows:
"It is true to suggest that after the marriage during my stay in the house of the accused, I became pregnant".
30. PW.6 also admits that during her stay in Child Care Institution, her elder sister visited her and advised her to continue her conjugal life with the accused and she declined that. Such admissions of PW.6 coupled with the admissions of PWs.4 and 5 probabilized the defence of the accused that her parents performed her marriage with the accused and she became pregnant out of their conjugal cohabitation.
31. As already discussed, PW.6 admitted in her cross-examination that her chief examination evidence was to the tune of Members of the Child Care Institution. She disowned her knowledge of statement before the police. In view of the accused probabilizing his defence of the marriage, even assuming that PW.6 had not consented for sexual cohabitation, that does not attract Section 376 of
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CRL.A No. 1524/2016IPC in view of Exception 2 to Section 375 of IPC. As per Exception 2 to Section 375 IPC the sexual cohabitation by a man with his wife if she was above 15 years was not rape. Though the Hon'ble Supreme Court in the judgment in Independent thought vs. Union of India4 struck down the said provision, relevant portion of para 197 of the said judgment held as follows:
"197. In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:-
(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution of India;
(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) it is inconsistent with the provisions of POCSO, which must prevail................." Reading of the above judgment rendered on 11.10.2017 shows that first of all the said judgment is prospective one. In this case the alleged offence has taken place in the year 2013. Secondly since victim being below 4 (2017)10 SCC 800
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CRL.A No. 1524/201618 years is not proved, the benefit of the said judgment does not enure to the prosecution.
32. The trial Court on judicious appreciation of the evidence on record and applicable law acquitted the accused by the impugned judgment and order. There is no patent illegality or perversity in the said order. Therefore, this Court cannot interfere with the same in this appeal. Hence the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KSR