Karnataka High Court
State Of Karnataka vs Chandrashekar S/O. Durgappa Harijana on 9 August, 2017
Bench: A.S.Bopanna, H.B.Prabhakara Sastry
CRL.A.No. 100107/2014
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST 2017
PRESENT
THE HON'BLE MR.JUSTICE A.S.BOPANNA
AND
THE HON'BLE DR.JUSTICE H.B. PRABHAKARA SASTRY
CRL.A.No. 100107/2014
BETWEEN:
STAE OF KARNATAKA,
REPRESENTED BY
YELBURGA POLICE STATION,
KOPPAL DIST.
...APPELLANT
(BY SRI.V.M.BANAKAR, ADDL.SPP)
AND :
SRI.CHANDRASHEKAR S/O
DURGAPPA HARIJANA,
AGED 22 YEARS, OCC: COOLIE,
R/O TALLURA TQ.YELBURGA,
KOPPAL DISTRICT.
...RESPONDENT
(BY SRI.S.S.YADRAMI, ADV.)
THIS APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF
CR.P.C. SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
20.12.2013 PASSED BY THE DISTRICT AND SESSIONS JUGE,
KOPPAL, IN POCSO S.C.NO.02/2013 FOR THE OFFENCES P/U/S
363, 366 AND 376 OF IPC AND BE SET ASIDE THE JUDGMENT
AND ORDER OF ACQUITTAL AND CONSQUENTLY CONVICT AND
SENTENCE THE RESPONDENT FOR THE AFORESAID
OFFENCES.
CRL.A.No. 100107/2014
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, DR.H.B. PRABHAKARA SASTRY J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The State through the complainant police has filed this appeal challenging the judgment dated 20.12.2013 passed by the Principal District and Sessions Judge, Koppal in POCSO S.C.No.2/2013, wherein the Court below has acquitted the present respondent from the charges of the offence punishable under Sections 363, 366 and 376 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short) and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for short).
2. In its memorandum of appeal, the appellant has contended that the Court below has not appreciated the evidence in its proper perspective. The evidence of P.W.1-mother of the victim girl and P.W.3-brother of the victim girl regarding the age of the victim girl CRL.A.No. 100107/2014 :3: (hereinafter referred to as 'the prosecutrix') has not been properly appreciated by the Court below. It is further contended by the appellant that the school certificate issued by the Head Master and the medical evidence shows that she was minor in age as on the date of alleged incident. With this, it has prayed for setting aside the judgment under appeal and to convict the accused for the offences punishable under Sections 363, 366 and 376 of IPC and under Section 4 of the POCSO Act.
3. In response to the notice, the accused/respondent is represented by his counsel. The lower Court records have been called for and the same are placed before us.
4. Heard the arguments from both side.
Perused the lower Court records including the judgment under appeal. As sought for by the appellant-State, leave is granted to prefer this appeal.
CRL.A.No. 100107/2014:4:
5. In the light of the above, the points that arise for our consideration are:
1) Whether the prosecution has proved beyond all reasonable doubt that, on 23.03.2013 at about 3.00 p.m. the accused kidnapped the prosecutrix, who was aged 17 years, from Gadageri Tanda cross within the limits of the complainant police station and thereby committed an offence punishable under Section 363 of IPC?
2) Whether the prosecution has proved beyond all reasonable doubt that, on the date and time mentioned in point No.1 above, the accused kidnapped the prosecutrix, who was minor in her age with intent and she may be compelled to marry him and knowing it to be likely that she will be forced or seduced to illicit intercourse and thereby committed an offence punishable under Section 366 of IPC?
CRL.A.No. 100107/2014:5:
3) Whether the prosecution has proved beyond all reasonable doubt that the accused after kidnapping the victim on 23.03.2013 from Gadageri Tanda cross and after taking her to Bengaluru on the next day, further confined her in a rented house under C.W.15-
Smt.Fakkiravva Koppad from 17.04.2013 to 25.04.2013 and that during the said period, he subjected the prosecutrix to rape and thereby committed an offence punishable under Section 376 IPC?
4) Whether the prosecution has proved beyond all reasonable doubt that by kidnapping and committing rape as mentioned in point No.3 above, against the prosecutrix, who was minor in age, the accused has also committed an offence punishable under Section 4 of the POCSO Act?
5) Whether the judgment of acquittal
passed by the Court below deserves to
be interfered with?
CRL.A.No. 100107/2014
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6. The learned Additional State Public
Prosecutor in his argument fairly submitted that in view of the fact that prosecutrix who was examined as P.W.8 herself turning hostile to the prosecution and not at all supporting the case of the prosecution to any extent, he would not press on the acquittal of the accused for the offence punishable under Sections 366, 376 of IPC and for the offence punishable under Section 4 of the POCSO Act. However, the learned Additional SPP in his argument submitted that the offence of kidnapping under Section 363 of IPC being an offence against the parents of the prosecutrix, there are sufficient materials to prove that case. In that regard, the learned Additional SPP referring to the evidence of P.Ws.1, 3, 7, 11 and 14 and also relying upon the medical certificate and school documents, more particularly Exs.P15 and 16 submitted that the age of the prosecutrix was proved as below the age of 18 years as on the date of the offence and that she has been taken by the accused with him CRL.A.No. 100107/2014 :7: without the consent of her lawful guardian. As such, the offence punishable under Section 363 of IPC stands proved.
7. The learned counsel for the accused/respondent in his argument submitted that the date of birth as shown in the school record is not reliable because the parents of the prosecutrix are illiterate. The evidence of P.W.1 read with the evidence of P.W.3 shows that the prosecutrix was major in age as on the date of alleged incident. He further submitted that the medical document at Ex.P10 proves the age of the prosecutrix as major. He also submitted that the clear statement of the prosecutrix that the accused neither called her anywhere nor taken her with him establishes that the prosecution has utterly failed to prove the case against the accused for the alleged offences.
CRL.A.No. 100107/2014:8:
8. The summary of the case of the prosecution is that, P.W.1 (C.W.1) Smt.Somavva w/o Mariyappa lodged a written complaint on 11.04.2013 before the complainant police alleging that, on 23.03.2013 at about 2.00 p.m. she along with prosecutrix and Savita were going to the agricultural land for work, the prosecutrix on the pretext of going back home for wearing chappals, left the place. However, she did not return home even during the evening hours. They made local enquiry and they had a strong suspicion against the accused that he had enticed the prosecutrix and kidnapped her. The said complaint was registered by the complainant police in Crime No.41/2013, later a charge sheet was filed against the accused/respondent for the offence punishable under Sections 363, 366 and 376 of IPC and Sections 3 and 4 of POCSO Act. The Court below framed charges against the accused for the offences punishable under Sections 363, 366 and 376 of IPC and under Section 4 of POCSO Act. In order to CRL.A.No. 100107/2014 :9: prove its case, the prosecution examined 16 witnesses as P.Ws.1 to 16 and got marked documents from Exs.P1 to P17(A) and material objects M.Os.1 to 12 and closed its side. On behalf of the accused, no evidence was led. However, a copy of remand application was marked as Ex.D1. After hearing both side and appreciating the material placed before it, the Court below acquitted the accused from all the charged offences. It is the said judgment, the State has challenged in this appeal.
9. The evidence given by P.W.11(C.W.18) Dr.Saida Isa Nagina who undisputedly is working as Medical Officer at Primary Health Center, Yelburga go to show that she medically and clinically examined the alleged prosecutrix on 26.04.2013 at 1.30 p.m. in the hospital to ascertain the alleged sexual assault upon the prosecutrix. The evidence of the doctor shows that, a detailed clinical and medical examination conducted by her has lead her to come to an opinion that the alleged CRL.A.No. 100107/2014 : 10 : prosecutrix was subjected to sexual intercourse. She has also identified the medical report issued by her in that regard, which is at Ex.P12. Though denial suggestions were made to the said witness in her cross- examination from the accused side, but the same could not weaken the oral and documentary evidence given by the said doctor regarding the prosecutrix undergoing sexual intercourse. Even though from the medical evidence, it can be considered that the prosecutrix had sexual intercourse, but the prosecution is required to establish that the said sexual intercourse was against the will and consent of that girl and as such, it was an act of rape upon her. Further, the prosecution is also required to establish that the alleged rape has been committed by none else than the accused. In this regard, the evidence of complainant P.W.1- Smt.Somavva, who admittedly is the mother of the prosecutrix is only a hearsay evidence, since she has only stated that her daughter, i.e., prosecutrix told her CRL.A.No. 100107/2014 : 11 : that she was raped by the accused. The said statement of the witness has been denied in her cross-examination from the accused side. The other witness, who speaks about the said incident is P.W.3-Shrikant, the elder brother of the prosecutrix, who has only stated that in Noolvi in a rented house under Smt.Fakiramma, the accused and the prosecutrix had sexual intercourse. Even the said statement also has been denied in the cross-examination from the accused side.
10. The next witness who speaks about the alleged incident of rape is P.W.9 (C.W.13) Nagaraj H.Hadimani, a cousin brother of prosecutrix. According to him, he saw the accused and the prosecutirx in the police station about 15 days after the complaint, at which time, the said prosecutrix told him that the accused had taken with him and committed rape on her. It was categorically denied in his cross-examination from the accused side.
CRL.A.No. 100107/2014: 12 :
11. P.W.6 (C.W.19) Dr.Sharanappa Beragi has stated that, by his medical examination of the accused, he came to an opinion that the accused was capable of performing sexual intercourse. He was not cross- examined from the accused side. P.W.11 (C.W.18) Dr.Saida Isa Nagina in her evidence has stated that on 26.04.2013 at about 1.20 p.m. she has medically examined the prosecutrix and by virtue of the said examination, she came to an opinion that the prosecutrix was subjected to sexual intercourse. She has also identified a medical report said to have been issued by her in that regard at Ex.P10 and one more report after going through the Forensic Science Laboratory report, at Ex.P12. Though it was suggested to her in her cross-examination that the reports given by her were false reports, the witness has denied those suggestions as true. From the unshaken evidence of P.W.6 and P.W.11 supported by the documents at Exs.P4, P10, P12, it is established that the accused was CRL.A.No. 100107/2014 : 13 : capable of performing sexual intercourse and that there was evidence to hold that the prosecutrix had recently undergone sexual intercourse. However, by that itself, it cannot be concluded that the prosecutrix was subjected to an act of rape and that too by none else than the accused himself. In that regard, since the evidence of important witnesses, i.e., P.Ws.1, 3 and 9 being only a hearsay evidence and that too according to them, the information about the alleged rape was given to them by none else than the alleged prosecutrix herself, the evidence of the said prosecutrix becomes the evidence of paramount importance.
12. The prosecutrix was examined by the prosecution as P.W.8 (C.W.14), who in her examination- in-chief, has not even whispered anything about she undergoing any sexual intercourse much less by the accused. It appears that no question in that regard was put to her by the prosecution in her examination-in- CRL.A.No. 100107/2014 : 14 : chief. Merely because the said witness stated in her examination-in-chief that, she knows the accused and that he has not taken her to any place, the prosecution treated her as hostile witness and obtained permission to cross-examine her. Even in her cross-examination also, except reading her alleged statement said to have been given before the police, in its entirety in a single breath and since the witness denied the contents of the said statement, getting the said statement marked as Ex.P7, the prosecution did not put any relevant questions further. With that, the prosecution dropped its efforts in eliciting favourable response from the alleged prosecutrix in its favour. However, from the accused side, in the cross-examination of the said witness, it was elicited from the mouth of the witness that in order to disconnect the love affair of the said prosecutrix with the accused, her mother and elder brother have lodged a false case against the accused. In this manner, absolutely there being no iota of evidence CRL.A.No. 100107/2014 : 15 : to arrive at any conclusion that the prosecutrix was subjected to rape and that too by the accused himself, the Court below has rightly acquitted the accused from the offence punishable under Section 376 of IPC and under Section 4 of POCSO Act.
13. In the light of the above observation, the charge that remains to be considered for proof is offence under Section 363 and 366 of IPC. As already observed above, the learned Additional SPP has not even pressed Section 366 of IPC, but has confined his argument only for the offence punishable under Section 363 of IPC in the matter.
14. Kidnapping is defined under Section 359 of IPC. According to which, kidnapping is of two kinds:
kidnapping from India and kidnapping from lawful guardianship. In the instant case, the allegation against the accused is of he kidnapping the prosecutrix from the lawful guardianship of her parents. Section 361 of CRL.A.No. 100107/2014 : 16 : IPC defines kidnapping from lawful guardianship, as below:
Section 361-Kidnappaing from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."CRL.A.No. 100107/2014 : 17 :
15. According to the said section, the ingredients of it are: i) that person kidnapped was under 16 years if male or 18 years if female or insane; ii) that person kidnapped was in keeping of lawful guardianship;
iii) that accused took or enticed such person out of such keeping; and iv) that accused did so without the consent of lawful guardian.
From the above, it is clear that the first ingredient relates to age. If the age of the prosecutrix is not proved to be below 18, the case of the prosecution will collapse. In this regard, firstly it has to be seen whether it was established that the age of the prosecutrix was below 18 years as on the date of the alleged offence.
16. According to the learned Additional SPP, the evidence of P.Ws.1, 3, 7, 11 and 14 coupled with the documents at Exs.P5, 8, 10, 15 and 16 establishes that the age of the prosecutrix as on the date of the alleged offence was below 18 years.
CRL.A.No. 100107/2014: 18 :
17. On the other hand, it is the argument of the learned counsel for the accused/respondent that the school records are not reliable and the evidence of P.Ws.1 and 3 read together shows that the age of the prosecutrix was above 18 years as on the date of incident. Further, the observation made by the doctor in Ex.P10 also shows that the age of the prosecutrix must have been above 18½ years. As such, the Court below has rightly given the benefit of doubt to accused.
18. P.W.1-the mother of the prosecutrix has guessed the age of the prosecutrix as at 17 years as on the date of her evidence, which was recorded on 18.10.2013. However, she has not given exact date of birth of the prosecutrix. In her cross-examination, she stated that the prosecutrix was younger to her son Srikant by two years. The said Srikant, who was examined as P.W.3 has stated that his date of birth is 01.06.1993 and that the prosecutrix was younger to CRL.A.No. 100107/2014 : 19 : him by three years. Taking his date of birth as 01.06.1993, the learned counsel for the accused in his argument referring to the evidence of P.W.1 that the age difference between Srikant and prosecutrix was two years tried to canvass that the prosecutrix was major as on the date of the alleged incident. Since it cannot be ignored that said P.W.3 himself in the opening statement has stated that the prosecutrix was three years younger to him and that there are other evidences including the medical evidence as well the school record to ascertain the age of the prosecutrix, by mere say of P.W.1 about the alleged age difference between P.W.3 and the prosecutrix cannot be taken as a decisive factor to hold that the prosecutrix was major in age as on the date of the alleged incident.
19. The prosecutrix who was examined as P.W.8 nowhere in her examination-in-chief has stated about her exact age though she stated that she studied in CRL.A.No. 100107/2014 : 20 : Government Higher Primary School, Tallur up to 5th standard. However, in her cross-examination by the prosecution after she was treated as hostile, she expressed her ignorance about her date of birth being mentioned in the school records as 01.06.1996. The said document was marked as Ex.P8. In her cross- examination from the accused side, she expressed her ignorance that her date of birth was 01.06.1993. What can be seen at this juncture is that the accused has not denied that P.W.3-Srikant is elder brother of the prosecutrix, who in his examination-in-chief has stated that his date of birth is 01.06.1993. It is also not disputed or denied from the accused side that the prosecutrix is at least 2-3 years younger to said Srikant. As such, since the undisputed date of birth of said Srikant being 01.06.1993, the date of birth of the prosecutrix also cannot be 01.06.1993 and it must be 2-3 years lesser to his age. Thus, the suggestion made CRL.A.No. 100107/2014 : 21 : to P.W.8 in her cross-examination that her date of birth is also 01.06.1993 does not carry any weight.
20. The two medical witnesses who speaks about the age of the prosecutrix are, P.W.7(C.W.20) Dr.Vasanth Kattimani and P.W.11 (C.W.18) Dr.Saida Isa Nagina. P.W.7 (C.W.20) Dr.Vasanth Kattimani in his examination-in-chief has stated that, on 26.03.2013 at the instance of the complainant-police he conducted the dental examination to ascertain the age of the prosecutrix. According to him, after the medical examination, he was of the opinion that the girl was aged about 16 years 5 months to 17 years. His evidence could not be shaken in his cross-examination from the accused side.
21. P.W.11 (C.W.18) Dr.Saida Isa Nagina in her examination-in-chief has stated that the prosecutrix was minor in her age and that she had attained puberty about six years back. However, she nowhere in her CRL.A.No. 100107/2014 : 22 : evidence has specifically mentioned the age of the prosecutrix. The said doctor identified the medical report said to have been issued by her at Ex.P10. In the said medical report at serial No.11 against 'Onset of puberty-date', she has written "12½ years, i.e., 12 years 6 months menstrual 6 years back". It is based on the said medical report, the learned counsel for the accused in his argument submitted that addition of said 12½ years + 6 years comes to 18½ years. As such, as on the date of her medical examination, i.e., on 26.04.2013 the prosecutrix was aged 18½ years. Thus, as on the date of the alleged offence she had already attained the age of majority. The said logic cannot be accepted on its face value for the reason that the said doctor nowhere in her evidence has stated that she examined the prosecutrix with respect to her age. Her entire evidence is only with respect to ascertain whether the prosecutrix had undergone any recent sexual intercourse. While marking Ex.P10 also the said doctor in her CRL.A.No. 100107/2014 : 23 : examination-in-chief has stated that the prosecutrix undergoing sexual intercourse has been recorded in the form of certificate at Ex.P10. Thus, the very purpose of the medical report at Ex.P10 as well the evidence of P.W.11 was to ascertain whether the prosecutrix had undergone any recent sexual intercourse. It was P.W.7- Dr.Vasanth Kattimani who examined the prosecutrix to ascertain her age. According to him, the age of the prosecutrix as on the date of examination was between 16 years 5 months to 17 years.
22. In addition to the above, there are other evidence in the form of school admission records, which also speaks about the date of birth of the prosecutrix. P.W.14 (C.W.25) Smt.Simplibai Naik, Head Mistress of the Government Higher Primary School, Tallur in her evidence has stated that at the request of the police she has issued extract of school admission register with respect to the admission details of the prosecutrix, CRL.A.No. 100107/2014 : 24 : which was based upon the records maintained by the school. She has identified the said admission extract at Ex.P15. The said document shows that it is an extract of admission details of the prosecutrix. According to which, her date of birth as recorded by the school is shown as 01.06.1996. She has also stated that her predecessor in the school Sri.Shiddlingappa has issued a certificate showing the date of birth of the prosecutrix as 01.06.1996, which is also based upon the school records. Thus, both these records show the date of birth of the prosecutrix as 01.06.1996. Though from the accused side, it was elicited in the cross-examination of P.W.14 that, in case of parents of a child, not knowing the correct date of birth, in such a case, the date of birth would be mentioned as '1-6', but the said '1-6' at best speaks about the date and month, but not the year. In the instant case, the school admission records shows the year of birth as '1996'. In addition to this, P.W.14 in her re-examination by the prosecution has CRL.A.No. 100107/2014 : 25 : produced the application for admission of the prosecutrix lodged by her parents at the time of her admission to the school. The same was marked as Ex.P16 and the certified copy of which is marked as Ex.P16(a). Even in the said document also the date of birth of the proecutrix is shown as 01.06.1996.
23. Thus, the medical evidence of P.W.7, who has medically examined the proecutrix to ascertain her age as well the date of birth as recorded in the school admission document and as well as the evidence of P.W.14 clearly go to establish that the date of birth of the prosecutrix was 01.06.1996. As such, as on the date of alleged offence the age of the prosecutrix was about 16 years 9 months. There is no reason to suspect or disbelieve the evidence of P.Ws.7 and 14 and Exs.P8, P15 and P16 on this point. Thus, it can be held that the prosecutrix was a minor girl with the age of less than 17 years as on the date of alleged offence.
CRL.A.No. 100107/2014: 26 :
24. The next point would be whether the prosecutrix who was minor in her age as on the date of alleged offence was kidnapped by the accused on 23.03.2013?
Though it was established by the prosecution that the prosecutrix was under 18 years as on the date of alleged offence and that she was in lawful guardianship of her parents in her village, it is incumbent upon the prosecution to establish that the accused took or enticed the prosecutrix, out of such keeping and that he did so without the consent of lawful guardian. There must be some proof of the accused having done something which led to the girl going outside the keeping of her guardian. 'Taking' need not be without the consent of the prosecutrix, since kidnapping is primarily an offence against lawful guardian, it is his consent alone that matters. If the minor girl is happy to go with the accused, there will still be 'taking' if the accused had persuaded her or assisted her to do so. The CRL.A.No. 100107/2014 : 27 : word "entice" involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do.
25. In this regard, except P.Ws.1, 3, 8 and the Investigating Officer, no other witnesses have spoken anything in their evidence. The evidence of P.Ws.1, 3 and 8 are all based upon the alleged information said to have been given to them by none else than the prosecutrix herself after her alleged return to the home village after the alleged incident. Thus, their evidence can be believed, provided the said prosecutrix supports the version of P.Ws.1, 3 and 7.
26. The said prosecutrix as P.W.8 in her examination-in-chief though has stated that he knows the accused, but has categorically stated that the accused neither took her to anywhere nor called her to come to any place. She has further stated that it was at CRL.A.No. 100107/2014 : 28 : the pressure of her mother she has given her statement to the police as stated to her by her mother. Even treating her as hostile, the prosecution could not elicit any favourable statement by her. Interestingly, the prosecution neither in the examination-in-chief nor in the cross-examination put any question to the witness regarding she being away from the village for a period, i.e., from the date of her alleged kidnap till the date of her alleged securing by the police. Had the prosecution put some relevant question in that regard, probably some more points could have been elicited as to whether the prosecutrix was in her village itself or was away from the village. However, in her cross-examination from the accused side, the witness admitted a suggestion as true that, in order to disconnect her love affair with the accused Chandrashekar, her elder brother and mother had kept her in a room at Gandhi Nagar in Kushtagi. She also admitted a suggestion as true that, for the said purpose of disconnecting the love CRL.A.No. 100107/2014 : 29 : affair with the accused, her mother and elder brother had lodged a false complaint against the accused. In this way, the prime witness, i.e., the prosecutrix has thrown cold water on the efforts of the prosecution. Thus, the prosecution though was able to prove that the prosecutrix was under the age of 18 years as on the date of alleged offence, but it has utterly failed to prove that she was kidnapped by the accused. Consequently, the accused inducing her or compelling to marry against her intention or will also stands not proved. Thus, it can be held that the prosecution has utterly failed to prove any of the offences charged against the accused. The Court below since has come to the same conclusion after analyzing the evidence placed before it, we do not find any reason to set it aside. Accordingly, we proceed to pass the following:
ORDER The criminal appeal is dismissed. The judgment dated 20.12.2013 passed by the Principal District and CRL.A.No. 100107/2014 : 30 : Sessions Judge, Koppal in POCSO S.C.No.2/2013 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE MBS/-