Karnataka High Court
Parawwa Basappa Menasinkai vs State Of Karnataka on 25 March, 2019
Author: G. Narendar
Bench: G. Narendar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF MARCH 2019
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
Crl.A No.100079/2018
BETWEEN :
PARAWWA BASAPPA MENASINKAI
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: AYATTI VILLAGE, NAVALGUND TALUK,
DHARWAD DISTRICT.
... APPELLANT
(BY SRI. R M JAVED, ADV.,)
AND :
1. STATE OF KARNATAKA
THROUGH SAUNDATTI P.S.,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
2. SIDDAPPA @ SIDDAROODA
S/O RAMANNA @ RAMAPPA DODAMANI,
AGE: 22 YEARS, OCC: DRIVER,
R/O: AYATTI, NAVALGUND,
DHARWAD.
... RESPONDENTS
(By Sri. V.M. BANAKAR, ADDL SPP FOR R1;
Smt. GIRIJA S. HIREMATH, ADV., FOR R2)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS
AND TO SET ASIDE THE JUDGMENT AND ORDER DATED
07.11.2017 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE AND SPL. COURT UNDER POCSO ACT,
2012, BELAGAVI IN S.C.NO.122/2016 FOR THE ALLEGED
OFFENCES PUNISHABLE U/S.366A, 376(2)(i), 506 OF IPC
AND SEC.4 OF THE POCSO ACT AND CONVICT THE
RESPONDENT NO.2/ACCUSED FOR THE OFFENCE
PUNISHABLE U/S.366A, 376(2)(i), 506 AND SEC.4 OF THE
POCSO.
THIS CRIMINAL APPEAL COMING ON FOR
ADMISSION, THIS DAY, BELLUNKE A.S.J., DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal has been preferred by the complainant at whose instance the crime came to be registered against the accused for the offence punishable under Section 366A, 376 2(1), 506 of IPC and under Section 4 of POCSO Act (hereinafter referred to as "Act" for short) questioning the order dated 07.11.2017, passed by III Additional District and Sessions Judge and Special Court under POCSO Act, Belagavi.
2. The brief facts of the said case for the purpose of this appeal are as under :
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On 27.01.2016, at about 7.45 p.m. informant by name Smt. Parawwa Basappa Menasinkai has appeared before the Saundatti Police station and lodged a complaint by alleging that on 23.01.2016 at 9.00 a.m. when the victim girl has gone to the hospital at Inamhongal, the accused took her in his car forcibly and made forcible sexual intercourse with her. On the basis of the said complaint, Savadatti Police registered the FIR in Cr.No.37/2016. The victim girl was subjected to the medical examination. Her statement was recorded under Sec.164 of Cr.P.C. by producing her before the JMFC, Saundatti. The accused was arrested and subjected to the medical examination. He was produced before the Court. The Investigating Officer proceeded to the spot and conducted spot mahazar. He recorded the statement of the witnesses. The car used by the accused to kidnap the victim girl was seized. The school certificate of the victim girl showing date of birth was collected. Medical reports pertaining to the accused and victim were obtained. After completion of 4 investigation, CW-29 has filed the charge sheet before the trial Court.
3. The learned Sessions Judge took cognizance of the offence alleged. After hearing both the sides, the trial Court framed charge against the accused for the offences punishable under Sections 366(A), 376(2)(i) and 506 of IPC and under Section 4 of the POCSO Act. The accused pleaded not guilty and claimed to be tried. Trial was conducted.
4. After hearing the statement of the complainant and after hearing the arguments of both the counsel, the learned Judge framed the following points for consideration.
1. Whether the prosecution proves beyond all reasonable doubt that on 23.01.2016, at 10.45 a.m. when the victim girl was standing in front of Sri.Guru Medical Shop, Inamhongal, accused came in India Car bearing No.KA-27-A-4770 and forcibly took the victim girl in his car, with an intention to make forcible sexual intercourse with 5 her and thereby committed the offence punishable under Sec.366A of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, after kidnapping the victim girl in his car, in spite of knowing very well that she is minor, took her near Bandarhalla and made forcible sexual intercourse with the victim girl and committed penetrative sexual assault on her and thereby committed the offence punishable under Sec.376 (2)(1) of IPC and Sec.4 of the POCSO Act?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, after kidnapping the victim girl and making forcible sexual intercourse with her, posed threat to kill her, if she disclose about this incident to others and thereby committed the offence punishable under Sec.506 of IPC?
4. What order ?
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5. After hearing both the sides and considering the evidence on record, the trial Court acquitted the accused. The complainant has questioned the said order on following grounds:
1. The trial Court has mechanically passed the impugned order of acquittal without considering the facts and circumstances properly. It is submitted that the trial Court has mechanically passed the impugned order dated 7.11.2017 without ascertaining the facts and without examining all the relevant aspects and practical position of the complainants' evidence.
2. The trial Court has not considered the material evidence such as school leaving certificate, medical report properly, and thereby passed the order of acquittal which is against the law and needs interference from the hands of the Court.
3. The Trial Court gave importance to the minor discrepancies and minor contradictions and thereby committed error in acquitting the accused.7
4. The POCSO Act is a special law enacted to protect the sexual abuse on minor and in the present case, the victim girl is minor. It is submitted that though the victim girl has given statement before learned magistrate under Section 164(5) of Cr.P.C. which is not considered by the trial Court.
5. The trial Court has not appreciated the evidence of complainant, victim girl, statement under Section 164(5) of victim, the medical certificate, the age certificate.
All these were the material witnesses and documents which were made available before the trial Court but which was not appreciated by the trial Court and without considering them has passed the impugned order of acquittal.
6. The trial Court has given more importance to the minor discrepancies and passed the impugned order of acquittal. Further to state that the statement of minor victim before learned magistrate was not taken into consideration and the medical evidence i.e., the certificate issued by the doctor holds good. But it was not properly appreciated by the trial Court.
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7. The evidence of victim girl in the open court was though trustworthy was not considered properly. Importance was given to minor discrepancies and thereby the accused was acquitted by the trial Court.
8. Though the date and place of business transaction between complainant and the accused has been explained, briefly narrated in the complaint, the trial court on wrong notion has came to a conclusion that the complainant has failed to prove her case.
9. The evidence of the prosecutrix is itself sufficient to prove the offence committed by the accused on victim girl and the evidence of her was not believed by the trial Court.
10. The trial Court on wrong notion has given importance to other criminal case which was filed by father of victim and had nothing to do with the present case. It is observed by the trial Court that in one of the case father of victim girl has turned hostile and similarly the present case is also false. There is no relationship between the earlier case filed and the present case. 9 Hence, the order of the trial court ought to be set aside and the accused be convicted for the offences as charge-sheeted.
11. Section 4 of the POCSO Act was also the offence alleged against the accused. The victim girl is a minor is sufficient to prove the case of prosecution. That is corroborated with the aid of medical certificate. But, this aspect is not at all considered by the trial Court.
12. The school certificate at Ex.P19 was issued by the Kannada higher primary school, Inamhongal. It is clear that the victim girl was born on 18.01.2001 and alleged date of incident is 23.01.2016. Therefore, the age of the victim girl was 14 years 3 months. Therefore, on this count itself, the accused ought to have been convicted by the trial Court.
13. The trial Court has not considered the materials placed before it properly and intervention is the need of the day in this appeal from the hands of this Hon'ble Court to kindly set aside the acquittal order dated 07.11.2017 and convict the accused 10 for the said offences as charge sheeted in the interest of justice.
14. The order passed by the trial Court is untenable both in law and on merits and contrary to the law and hence on this ground itself the impugned order is liable to be set aside.
6. Heard the learned counsel for the appellant and as well as counsel for the respondents at length.
7. It is contended by the learned counsel for the appellant that looking from any angle, the judgment passed by the trial court is not sustainable in law. Therefore, the learned counsel for the appellant repeating appeal grounds prayed to set aside the judgment and order of acquittal of the accused for the offences alleged and has prayed to convict the accused for the alleged offences.
8. The learned counsel for the respondents pointed out the reasons set out by the trial Court which 11 resulted in the Court disbelieving the evidence of prosecutrix and other witnesses.
9. Having heard both the sides, the following points would arise for consideration are:
1. Whether the appellant-complainant proves, that the prosecution had proved before the trial Court beyond any reasonable doubt, that the accused had committed offence punishable under Sections 366A, 376(2)(1), 506 of IPC and under Section 4 of POCSO Act and therefore, he was liable to be convicted and sentenced for the said offences?
2. What order ?
10. Unless and until it is proved that the accused himself has committed Penetrative sexual assault as drawn for offence punishable under Section 3 and 4 of the POCSO act i.e., presumption under Section 29 of the POCSO Act cannot be raised. Initial burden has to be proved by the prosecution. It is well 12 established principles of law that the initial burden of proof always lies on the shoulder of the prosecution.
11. Since, no opinion is required to be formed with regard to culpable mental state of the accused. Therefore, the presumption under Section 30 of the Act is also not available for the prosecution. Section 30 reads as under:
"30. Presumption of culpable mental state._ (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had not such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability."13
In this case, the whole incident as alleged by the prosecution has not been proved beyond any reasonable doubt. The manner of incident alleged by the prosecution itself has been disbelieved by the learned Special Judge. The evidence on record also fortifies such conclusion. Therefore, no presumption can be raised infavour of the prosecution and acquitted the accused person.
12. In the case of Rajbabu and another v. State of Madhya Pradesh reported in (2008) 17 Supreme Court Cases 526, wherein, it has been held that unless there is direct evidence to show that the accused was aiding or instigating the commission, or entered into conspiracy to aid the commission of the offence. In this regard reliance is also placed on another judgment rendered in Criminal Appeal No.790 of 2017. In the said judgment, the ingredients are require to apply presumption under Section 113A of the 14 Act is also elaborately discussed. There are certain ingredients which are to be proved by the prosecution. Thereafter the prosecution will be entitled to ask for a raising presumption in its favour.
13. The trial Court has rightly relied on ruling of this Court in the case of Harikumar V/s. State of Karnataka reported in ILR 1993 Karnataka 3035. Therefore, the accused could not have been convicted, merely on the ground that the victim is a minor and offence alleged are punishable under provisions of POCSO Act. Ex.P19 is the school certificate issued by the Kannada Higher Primary School, Inamhongal showing the date of birth of the victim is 18.10.2001. Therefore, on the date of alleged incident i.e., 23.10.2016, the victim girl found to be 14 years 3 months. The accused seriously disputed this fact on the basis of Ex.P23, which is medical report pertaining to the victim girl. In the said report of radiologist, the age of the victim girl was shown as 16 to 18 years. As 15 per the opinion of dentist, it is shown as 14 to 16 years. In such cases, it has to be examined whether the birth certificate issued alone would be sufficient and the only fact to be taken into consideration to ascertain the age of the deceased. The Trial Court has relied on a ruling in the case of Jarnail Singh V/s. State of Haryana, dated 01.07.2013, reported in (2013) 7 SCC 263 in Crl.A.No.1209/2010.
14. Based on the said authority, the learned Judge drew analogy by taking into consideration the Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007. By referring to the said provision, the certificate i.e., matriculation or equivalent certificate is the best evidence to show the date of birth of the child. Then, if the date of birth is not available then the other certificate issued by the Panchayath or corporation also to be considered. It is important to note that the date of birth entered in the school registered for the first time at the time of admission to school i.e., is the primary evidence. It should be borne 16 in the mind and it is common knowledge that in country
- side and villages the parents do give the age of the child to suit the requirement of the age required for admitting the child to the school. If the child is lesser than the required age, then they are likely to increase the age and via-versa. Therefore, having regard to the date of birth certificate issued by the School as well as the medical evidence has to be taken into consideration to arrive at a conclusion. Having regard to the date of birth certificate in respect of the victim girl issued by school as well as medical report at Ex.P19, we find that there is a reasonable doubt as to whether the victim was really minor. The trial Court though found that the victim was minor, but ultimately has acquitted the accused. Therefore, it would not matter much. But however, I find that there is a reasonable doubt as to whether the victim was below 18 years.
15. The trial Court found that the victim is less than 18 years old. The offence punishable under Section 376 of IPC would apply if the girl is proved to be 17 above 16 years, otherwise element of consent has to be taken into consideration.
16. Merely because the girl is found to be less than 18 years, the Court cannot jump to a conclusion that the presumption under the POCSO Act can be drawn. The trial Court also has also taken into consideration the delay in filing the complaint. The trial Court has also relied on the ruling in the case of State of Punjab V/s. Ramdev Singh, reported in (2004) 1 SCC 421 (AIR 2004 SC 1290) and has come to a right conclusion.
17. The victim had gone to a medical shop in the morning to take treatment in the hospital. She did not return till 8.30 p.m. in the evening. As a mother, the complainant would not have kept quite till 8.30 p.m. No satisfactory explanation was offered by the victim girl or her mother. It is in that context, the trial Court raised a reasonable doubt regarding the genuineous and truthfulness of the incident.
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18. As regards alleged incident of sexual assault, the evidence of PW3-the victim girl, has been meticulously appreciated by the trial Court. It is the case of the prosecution that the victim girl has gone to hospital at Inamhongal to take treatment and at about 10.45 a.m. when the victim girl was walking in front of a medical shop at Inamhongal, accused forcibly took her in his Tata Indica car and put a kerchief on her face, due to which the victim girl became unconscious and thereafter took her in a field and made forcible sexual intercourse on her. None of the witnesses from that place including the medical shop owner or any other person, who might have seen the incident, has been examined. Inamhongal is a small place, I don't think that the accused could have taken to a girl forcibly in a motorcar. Therefore, the way in which the complainant has narrated the first incident of kidnapping by the accused itself is doubtful.
19. The victim girl is said to have been brought home by CW12 after the accused left her at Bandarhalla 19 place. He has not supported the case of the prosecution. He has not seen the accused dropping the victim girl at that place. With this evidence we find that it is a serious contradiction in the case of prosecution.
20. The victim girl is said to have gone to Inamhongal to take a treatment in the hospital. The said hospital is situated far away from the house of the victim girl. The Doctor was not there when the victim girl went there. Then she has gone to the house of nurse to bring her. The said nurse, to whose house the victim has gone, has not been examined by the prosecution nor questioned by Investigating Officer. That also raises a reasonable doubt in the minds of the Court. The victim girl is also suffering from fits, she was also suffering from abdomen pain. Whether such a girl would have been sent alone to go to a hospital at a far away place all by herself is a unnatural conduct on the part of a mother of a girl child.
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21. Further, it is elicited from the statement of the victim girl that after she was taken forcibly and made sexual intercourse. She became unconscious when she was taken into the car and regained conscious it was about 8.30 p.m. in the evening. In between 10.45 a.m. to 8.30 p.m. the accused is said to have committed rape on her. This statement itself is doubtful as it is claimed of girl being administered sum substance in the handkerchief. The statement raises a very reasonable doubt as to when the alleged incident happened the girl was conscious enough to identify the place where the crime was committed. The statement does not inspire confidence. The victim has also deposed that she was fully unconscious. According to the father of the victim girl, when she was brought by CW12 in his motorbike she was unconscious. Therefore, the trial Court rightly suspected that how a semiconscious girl could have been brought on a motorbike without support of another person. 21
22. Another suspicious ground found by the trial Court is that the accused would not have brought the victim girl if he had committed rape on her. She also had refused to get down from the car. If really the said incident had taken place bringing the victim girl to her own house is highly improbable. The victim is also said to have attempted to commit suicide two days after the incident. But, none of the witnesses, i.e, the mother or the father of the victim or sister deposed about the same. Therefore, the story of kidnapping cannot be accepted. Section 366A is not applicable unless it is shown that the accused has compelled or forced or seduced the victim girl to have illicit sexual intercourse with any other person other than the accused. In this case, the allegation is that it is alleged accused has made forcible sexual intercourse with the victim girl, but not made allegation against the accused about he making the victim girl forcibly to have sexual intercourse with another person, other than the 22 accused. Therefore, Section 366A was rightly left off by the trial Court.
23. Statement of the victim is also quite contrary to the 164 statement given before the JMFC, Savadatti as per Ex.P6. In the said statement, she has stated that accused took her to a field and made forcible sexual intercourse on her. If she was so unconscious then she could not have deposed about the incident in the above manner and with such detail.
24. Having regard to the place that is found at Ex.P3 photograph of the spot, where the alleged act of sexual intercourse was made, shows that it is a place with mud and rough surface. There was every possibility if the alleged act was committed in a places like this, the victim would have sustained some injuries like abrasion on her back and thighs. As per medical report at Ex.P23 relating to the victim girl, no external injuries were found on the victim girl and so also on the genital organs of the girl, except stating that there is a 23 rupture of hymen and all the genital organs were reported as normal. No fresh bleeding or discharge was also found.
25. As per Ex.P22 FSL report is also found negative. As per the said report, seminal stain was detected only in underwear of the accused and seminal stain was not detected in any other items. The presence of the blood stains and skin tissue was also not detected in any of items sent for forensic examination. Spermatozao was also not detected in the vaginal smear of the victim girl. In respect of smegma, it is stated in the RFSL report that, it was disintegrated and result of the test was inclusive. Whether a mere seminal stain in the underwear of the accused would be a strong ground to prove the guilt of the accused and to hold the guilt has been proved? In our considered opinion it must be in the negative.
26. The evidence stated by the victim girl does not appear to be trustworthy nor it inspires confidence. 24 The defense suggested by the accused though denied, appears to be forceful. It is suggested that enmity and vengeance in between two communities and in order to extract the money, a false case was registered against the accused. The suggestion is denied. The accused also has stated in the explanation in 313 statement that the husband of the complainant and the father of the victim girl had lodged a complaint against a thirty party alleging that his wife and daughter i.e., the complainant and victim girl were kidnapped by one Mr. Mastansab and others. On the basis of the complainant, Navalagund Police have registered the FIR in Crime No.28/2009 and the case was also registered before the JMFC, Navalagund in C.C. No.189/2009.
27. The accused has produced the copy of the FIR, Charge sheet, judgment and deposition of witnesses relating to that case. Even though, complaint was lodged alleging kidnapping the complainant, during the course of her evidence in the said case she turned hostile to the prosecution by stating that she had gone 25 to her parents house and the accused have not kidnapped her. On the other hand, husband of the complainant deposed before the JMFC, Navalagund, alleging the kidnapping. A suggestion was also made to the husband of the complainant that the complainant is in the habit of lodging a false complaint to extract the money. Therefore, on reappreciation of evidence on record, we find that the trial Court has rightly acquitted the accused by extending the benefit of doubt.
28. It has rightly not applied the presumption. Looking from any angle, the appeal is devoid of merits. Hence, the points are answered accordingly.
Accordingly, the appeal filed by the appellant- complainant is dismissed.
Sd/-
JUDGE Sd/-
JUDGE MNS/