Karnataka High Court
State Of Karnataka vs Yashavant S/O Obalesh Batri on 7 February, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL NO.100205/2020
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR
DHARWAD TOWN POLICE STATION,
DIST: DHARWAD,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...APPELLANT
(BY SRI.V.S.KALASURMATH, HGCP)
AND:
YASHAVANTH,
S/O. OBALESH BATRI,
AGE: 20 YEARS,
R/O. HDMC QUARTERS,
MADARAMADDI, DHARWAD,
DIST: DHARWAD.
PIN CODE-580008. ...RESPONDENT
(SRI. MALLIKARJUN S.HIREMATH, ADVOCATE)
2
Crl.A. No.100205/2020
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 26.12.2018
PASSED BY THE II ADDL. DISTRICT AND SESSIONS AND
SPECIAL JUDGE AT DHARWAD IN SPL. S.C.NO.15/2017 AND
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
26.12.2018 PASSED BY THE II ADDL. DISTRICT AND SESSIONS
AND SPECIAL JUDGE AT DHARWAD IN SPL. S.C. NO.15/2017
AND CONVICT THE RESPONDENT/ACCUSED FOR THE
OFFENCES UNISHABLE UNDER SECTION 363, 366, 376 OF IPC
AND OFFENCE UNDER SECTION 6 OF POCSO ACT 2012.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING AND RESERVED
ON 17.01.2023, COMING ON FOR PRONOUNCEMENT THIS DAY,
Dr.H.B.PRABHAKARA SASTRY J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appellant as the State/complainant had initiated a criminal proceeding against the present respondent arraigning him as accused for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as 'the POCSO Act'), in the Court of Second Additional District & Sessions Judge, and Special Judge, 3 Crl.A. No.100205/2020 Dharwad (hereinafter for brevity referred to as 'the Sessions Judge's Court'). After the trial, the accused was acquitted of all the alleged offences. Seeking setting aside of the impugned judgment dated 26.12.2018, the State has preferred the present appeal under Sections 378(1) & (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.).
2. The summary of the case of the prosecution in the Sessions Judge's Court was that on the date 23.01.2017 at about 1.00 p.m., the accused who was a known person to the alleged victim girl, who was minor in her age, kidnapped her from the lawful custody of her parents with an intention to marry her against her will and by taking her to Kolhapur and keeping her in a rented house for a period of a month, frequently subjected her to sexual assault and has committed rape upon her and thereby committed the offences punishable under Sections 363, 366, 376 of IPC and under Section 6 of the POCSO Act. After registering the complaint in Station Crime 4 Crl.A. No.100205/2020 No.9/2017, the Police conducted investigation and after completing investigation, filed charge-sheet against the accused for the alleged offences.
3. Since the accused pleaded not guilty, the trial was held wherein, in order to prove the alleged guilt against the accused, the prosecution got examined twentynine witnesses as P.W.1 to P.W.29 and got marked thirtyone documents from Exs.P.1 to P.31 and material objects M.Os.1 to 14. Statement of the accused under Section 313 of Cr.P.C. was recorded. From the accused side, neither any witness was examined nor any document was produced as exhibit.
4. After hearing both side, the learned Sessions Judge's Court, by its impugned judgment dated 26.12.2018, acquitted the accused of the offences charged against him.
5. The respondent/accused is being represented by his counsel. The complainant (PW-1) and the alleged victim (PW-2) were served with the notice. But they remained absent.
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6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the material placed before this Court and also the Sessions Judge's Court records.
8. The points that arise for our consideration are:
i) Whether the prosecution has proved beyond reasonable doubt that on the date 23.01.2017 at about 1.00 p.m., from the house of P.W.3 (C.W.13) Smt. Sushila Kale, the grandmother of the alleged victim girl, the accused kidnapped the alleged victim girl, who was minor in her age, from the lawful guardianship of her parents and her grandparents, with an intention to marry her against her will, and thereby has committed the offence punishable under Sections 363 and 366 of IPC?
ii) Whether the prosecution has proved beyond reasonable doubt that the accused, after kidnapping the victim girl as above, knowing fully well that the victim girl was minor, had 6 Crl.A. No.100205/2020 committed rape upon her in a rented house at Kolhapur on several occasions from 23.01.2017 till 21.02.2017, when on 21.02.2917 both the victim and accused were traced and brought back by the complainant/police from Kolhapur, and thereby has committed the offence punishable under Section 376 of IPC and under Section 6 of POCSO Act?
iii) Whether impugned judgment under appeal warrants any interference at the hands of this Court?
9. The present appeal is filed by the State challenging the judgment of acquittal of the accused of the alleged offences punishable under Sections 363, 366, 376 of IPC and under Sections 6 of the POCSO Act. Since as per criminal law, the accused are presumed to be innocent until their guilt is proved and further the accused, in the instant case, has already been benefited by the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must 7 Crl.A. No.100205/2020 be very careful and cautious in analysing and appreciating the evidence led in the matter. Our Hon'ble Apex Court, in its judgment in CHANDRAPPA AND OTHERS Vs. STATE OF KARNATAKA, reported in (2007) 4 SCC 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of an acquittal, was pleased to observe at paragraph
42.(4) and paragraph 42.(5) as below:
"(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, 8 Crl.A. No.100205/2020 the appellate court should not disturb the finding of acquittal recorded by the trial court." In SUDERSHAN KUMAR Vs. STATE OF HIMACHAL PRADESH reported in (2014) 15 SCC 666, while referring to Chandrappa's case (supra) the Hon'ble Apex Court at para 31 of its Judgment was pleased to hold that a cardinal principal in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal, the Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
In Jafarudheen Vs. State of Kerala reported in (2022) 8 SCC 440 at para 25 of the judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be 9 Crl.A. No.100205/2020 relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case were reaffirmed by the Hon'ble Apex Court in Ravi Sharma Vs. State (Government of NCT of Delhi) and another reported in (2022) 8 SCC 536.
10. It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
11. The learned Additional Government Advocate for the appellant/State, in his brief arguments, submitted that the victim girl was admittedly minor in her age as on the date of her kidnap and tracing back by the Police. Therefore, her consent is not a valid consent in the eye of law and as such, the act of the accused taking the victim 10 Crl.A. No.100205/2020 girl with him with an intention to marry her has proved to be offences punishable under Section 363 and 366 of IPC. He further submitted that since the victim girl was minor in her age, even if it is presumed that she had given her consent for sexual intercourse with the accused, the same since would not be a valid consent, the act of the accused has proved to be an offence punishable under Section 376 of IPC as well under Section 6 of POCSO Act.
12. The learned counsel for the respondent/accused, in his arguments, submitted that as on the date of the alleged incident of victim girl going with the accused to Kolhapur, she was major in her age, which is evident in the medical evidence. The school certificate is not believable for the reason as to the informant of details of the date of birth to the school at the time of admission has not been examined. With this, he submitted that since the alleged victim girl herself has stated that she had gone with the accused with her consent, the alleged offences have not been proved by the prosecution.
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13. Among the twentynine witnesses examined by the prosecution P.W.1 (C.W.1)-Smt. Sumangala is the mother of the alleged victim girl. In her examination-in- chief, in evidence, she has stated that while the victim girl was pursuing her studies in S.S.L.C. (Tenth standard of schooling) because of holidays to the school, she was left in her mother's (grandmother of the girl) house. On 24.01.2017 in the afternoon, at about 12'O clock, her sister-in-law C.W.12 (P.W.4) telephoned to her stating that the girl was found missing, she had gone somewhere while she (C.W.12) was taking bath. C.W.12 is further stated to have informed that they searched in all the known places including their relatives' house, but they could not trace the girl. The witness further stated that after hearing from C.W.12 and enquiring with the known persons' houses including relatives, since she could not trace her daughter and since she had suspicion against the accused who was residing in the lane and was behaving with greater lenience with her daughter, she lodged a complaint against 12 Crl.A. No.100205/2020 the accused as per Ex.P.1. The witness further stated that on 22.02.2017, the Police telephoned to them stating that the accused and the victim girl were traced at Kolhapur, and asked by the police, she joined the team of the police and went to Kolhapur to the house of one Smt. Kanchana Kamble at Yadavnagar in Kolhapur, where both her daughter and the accused were found. When enquired, her daughter told her that she went to Belagavi along with the accused, she married the accused in a temple called Vittal Mandir and from there, they went to Kolhapur, took a house on lease and they were staying there. The witness also stated that her daughter told about she leading family life with the accused for a month. She also stated that the Police recorded her statement and sent victim girl for her medical examination to the hospital when she too accompanied her daughter. Thereafter, the girl was produced before the Magistrate for recording her statement. She was sent to Bala Mandir (children home) and after two months she was again taken to Yadavnagar 13 Crl.A. No.100205/2020 at Kolhapur for the purpose of investigation. There the police drew a panchanama and took photographs. Subsequently, she took the possession of the girl since she had to continue her studies.
Since this witness did not speak about the alleged sexual intercourse by the accused upon the victim girl, which the prosecution had expected the witness to say, the witness was treated as hostile and the prosecution was permitted to cross examine her. In her cross-examination, the witness has admitted the suggestion made by the prosecution as true that upon enquiry with her daughter, she came to know that during their stay at Kolhapur, the accused was frequently and repeatedly having sexual intercourse with her daughter. She also stated that in her presence, the Police drew panchanama even at Vittal Mandir, Shivaji Nagar, Belagavi, where the accused and her daughter had married to each other. In her cross- examination, the witness denied the suggestion that she had prior knowledge that her daughter would go along with 14 Crl.A. No.100205/2020 the accused. She denied the suggestion that since she was quarreling every day with her daughter, the said girl being frustrated had voluntarily gone with the accused.
14. The most material witness upon whom the prosecution relied upon much is P.W.2 (C.W.17), the alleged victim girl. The said witness in her evidence stated that her date of birth is 25.04.2000 and she knows the accused who was residing in the same lane where these people resided. She stated that, as on the date of the incident, she was in the house of her grandmother. On 23.01.2017, she went along with the accused. On that day, C.W.12 alone was in her grandmother's house. She and the accused first went to Belagavi, there in a temple, they got married to each other and from there they went to Kolhapur. They stayed for a period of one month in Kolhapur in a rented house. The accused was going for some work at Kolhapur. She stated that in front of the police, she had stated she voluntarily had accompanied the accused. She also stated that she was subjected to medical 15 Crl.A. No.100205/2020 examination at the instance of the police. The doctor collected the dress materials belonging to her, which, this witness has identified at M.O.1 to M.O.6. She also stated that she has given her statement before the Court as per Ex.P.5. The witness further stated that on 01.03.2017, the Police had taken her to Kolhapur, where she shown the house where she was residing with the accused. The Police, apart from taking photographs of that place, also drew a panchanama in the presence of her mother and panchas. The witness stated that she also shown the place of their marriage at Belagavi, where also the police drew a panchanama and took photographs. The witness has identified those photographs and panchanamas.
Since this witness did not support the case of the prosecution about the commission of the alleged offence by the accused, on request, the witness was treated as hostile, and the prosecution was permitted to cross- examine the witness. In her cross-examination she denied the suggestions put to her and denied that she had given 16 Crl.A. No.100205/2020 any statement before the police, which was read over to her.
This witness was not cross-examined from the accused side.
15. The third in the series of the material witnesses examined by the prosecution is P.W.3 (C.W.13)-Susheela Kale, the grandmother of the alleged victim girl. The said witness in her evidence has stated that the victim girl is her grand-daughter and aged about 17 years. On the date of the incident, she had been to her work away from home and as such, at home, it was only C.W.12, C.W.17 (P.W.2) who were there. She came to know that C.W.12, her daughter-in-law, noticed that C.W.17 (victim girl) was found missing when she (C.W.12) had been to bathroom; in spite of search made in the surrounding area, C.W.17 could not be traced and the same was informed to C.W.1. The witness also stated that about a week after C.W.1 lodged a complaint with the police, C.W.17 was traced at Kolhapur.
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Since this witness did not support the case of the prosecution further about the alleged role of the accused in the incident, which according to the prosecution, this witness was supposed to speak about the same, the witness was treated as hostile and the prosecution was permitted to cross-examine the witness. However, the prosecution could not get any support from this witness.
16. P.W.4 (C.W.12)-Meenakshi Kale, the daughter- in-law of P.W.3 has stated that on the date of the incident, C.W.17 (victim girl) was in their house and she was aged about 16 years. In the afternoon, when she had been to take bath in the bathroom, C.W.17 was found missing and despite search made in the nearby places, she could not find her as such, she informed the same to C.W.1. The witness further stated that one month after C.W.1 lodging the complaint before the police, C.W.17 was brought by the police from Kolhapur. When she was enquired, C.W.17 stated that when C.W.12 had been to take bath, the accused had taken her (C.W.17) to the bus-stand, from 18 Crl.A. No.100205/2020 there to Belagavi, at Belagavi both of them married to each other, and from there accused took her to Kolhapur and kept her in a rented house at Kolhapur.
Since this witness did not speak anything about the alleged rape of the victim girl, she was permitted to be cross-examined after treating her hostile. However, the prosecution could not get any support from the evidence of the said witness.
17. P.W.5 (C.W.14) Shivanand Kale, who is stated to be the brother of P.W.1, and from whose house P.W.2 was stated to be found missing, was presented by the prosecution as a witness as the one knowing the entire details of the alleged incident. However, the said witness except stating that on 23.01.2017, after he returned from her work, he came to know that C.W.17 was found missing from the house of her grandmother and despite search made in the nearby places, she was not found, has not supported the case of the prosecution any further. 19 Crl.A. No.100205/2020
Since, he specifically stated that he does not know further details in the matter, the witness was permitted to be treated as hostile and the prosecution was permitted to cross-examine him. However, this witness did not support the case of the prosecution any further even in his cross- examination.
18. P.W.6 (C.W.15)- Smt. Gayathri Prabhakar, the cousin sister of P.W.1 has stated that her house was near to the house of C.W.13 (P.W.3). On the date of the incident, she came to know that C.W.17 had gone somewhere from the house of her grandmother (P.W.3). She stated that she does not know whether any search was made to trace her. She also stated that she does not know when she (P.W.2) was traced and with whom she had gone. Though this witness stated that the accused was also residing in the same lane where she resides, however, she stated that she does not know that it was the accused, who had kidnapped P.W.2.
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Since she pleaded her ignorance about the further alleged events of alleged marriage between the accused and P.W.2 and rape upon P.W.2 by the accused, which details the prosecution was expecting this witness to speak about in the Court, this witness was treated as hostile and the prosecution was permitted to cross-examine. However this witness has not supported the case of the prosecution any further.
19. The evidence of P.W.1, P.W.3, P.W.4, P.W.5 and P.W.6 that as on the date 23.01.2017, P.W.2, the alleged victim girl, was staying with her grandmother (P.W.3), who was working at Dharwad, is not denied. The evidence of these witnesses that on 23.01.2017, in the afternoon at 1.00 p.m., the said P.W.2 (C.W.17) was found missing from the house of P.W.3 and some search was made to trace her also has not been specifically denied in the cross- examination of these witnesses. However, merely because P.W.2 was found missing from the house of her grandmother on 23.01.2017 by that itself, it cannot be 21 Crl.A. No.100205/2020 concluded that she was a minor as on the said date and that she was kidnapped by the accused. Thus, the age of the P.W.2 becomes a primary factor to consider and decide whether the alleged act of the accused would become an act of kidnapping which further alleged to have resulted into a rape and repeated sexual assault upon P.W.2 by the accused.
20. As observed above, the primary witness, who has spoken about the age of the girl is none else than the alleged victim girl herself who, in her evidence as P.W.2, has categorically stated that her date of birth is 25.04.2000. She has also stated that as of the time of the alleged incident, she had already completed her tenth standard of schooling and was at home. The said witness was not cross-examined from the accused side stating that they do not have cross-examination of the witness. Therefore, the say of P.W.2, who is none else than the victim girl, has stood undenied.
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21. The mother of the alleged victim girl i.e. P.W.1 (C.W.1) though has spoken about the incident and has stated that as at the time of the incident, the girl was studying SSLC (tenth standard) and that since there was holiday to her school, she was kept in her (alleged victim girl) grandmother's house, but she has not specifically stated as to what was the age of the girl. In her cross- examination, she stated that the alleged victim girl had completed her SSLC in 2016. The alleged incident of kidnapping the girl is said to have taken place on 23.01.2017.
22. P.W.4, the sister-in-law of P.W.1, in her evidence which was recorded on 16.01.2018, has stated that the age of the alleged victim girl was sixteen years. Her statement about the age of the girl has not been denied in her cross-examination from the accused side.
23. P.W.6, the cousin-sister of P.W.1 has stated that as on the date of her evidence, which was recorded on 23 Crl.A. No.100205/2020 16.01.2018, the age of the alleged victim girl was seventeen years. Her statement about the age of the alleged victim girl has not been denied in her cross- examination from the accused side.
24. Therefore, the evidence of P.W.1, P.W.4 and P.W.6 that the alleged victim girl was minor in her age of not more than seventeen years as on the date of the incident has remained undenied and undisputed, more particularly, when the date of birth given by none else than the alleged victim girl as 25.04.2000, apart from having been not denied from the other side, has further been corroborated by the evidence of P.W.20 (C.W.25)- Sri.Esther Tumakur, the Head Master of the School where the alleged victim girl had studied from her fifth standard to tenth standard of schooling. After producing the original register of admission, the witness has stated that based upon the entries made in the said register, he has furnished the date of birth of the girl in the Study Certificate at Ex.P.22. The original register produced by 24 Crl.A. No.100205/2020 him was marked as Ex.P.23 and the same was returned to him after retaining a photostat copy of the relevant entry in the said register which was marked at Ex.P.24.
Ex.P.22 is shown as a Study Certificate issued by the Head Master (P.W.20) showing that the victim girl had studied in their school i.e. Basel Mission Girls' High School, Dharwad, from fifth standard to tenth standard during the years 2010 and 2016, and her date of birth is 25.04.2000. The admission register extract at Ex.P.24 also shows the very same date as the date of birth of the girl. Nowhere in the cross-examination of this witness, any suggestion was made denying that the date of birth shown in Ex.P.22 and Ex.P.24 as are not correct and they are wrong. On the other hand, few other details were elicited from the witness wherein he has stated that he has no information as to whether the girl has produced her birth certificate in the previous school where she had studied and that whether she had failed during her schooling from first standard to fifth standard and, if so, how many times. Those 25 Crl.A. No.100205/2020 statements elicited from the witness would, in no manner, create any doubt in the date of birth entered in the school register in Ex.P.23 and Ex.P.24 based upon which the certificate at Ex.P.22 is issued.
25. The learned counsel for the respondent, in his arguments, submitted that since the medical evidence shows that the girl must be aged between seventeen to nineteen years, it has to be taken that the alleged victim girl was major in her age.
26. No doubt, P.W.24-Dr. Kavita Pattanashetty, who is an Ophthalmologist in District Hospital, Dharwad, has stated that when she examined the alleged victim girl on 22.02.2017, she had received the X-ray Report and noticed that the age of the girl appears to be seventeen to nineteen years. She identified the medical certificate issued by her at Ex.P.27 wherein she has opined that the age of the alleged victim girl was between seventeen to eighteen years as per the dental and eighteen to nineteen 26 Crl.A. No.100205/2020 years as per the radiological report. However, it is only an opinion of the doctor based upon dental and radiological tests.
27. Our Hon'ble Apex Court in its judgment in the case of MAHADEO S/O. KERBA MASKE VS. STATE OF MAHARASHTRA AND ANOTHER reported in (2013)14 Supreme Court Cases 637, was pleased to observe in paragraph 12 of its judgment that, in the light of the statutory rule in the form of Juvenile Justice (Care and Protection of Children), Rules 2007 (hereinafter for brevity referred to as "the J.J. Rules"), prevailing for ascertaining the age of a juvenile, it is their opinion that the same yard stick could be rightly followed by the Courts for the purpose of ascertaining the age of the victim as well.
The above said Rule 12 (3) of the Juvenile Justice Rules, reads as below:
"12. Procedure to be followed in determination of Age.-
(1) xxx 27 Crl.A. No.100205/2020 (2) xxx (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 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, recorded a finding in respect of his age and either of the 28 Crl.A. No.100205/2020 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."
In the case of Jarnail Singh Vs. State of Haryana reported in (2013) 7 Supreme Court Cases 263 also, which had also involved the question of determination of age of a minor girl in an offence punishable under Section 376(2)(g), 366, 120B of the IPC, in paragraph 23, it was observed by the Hon'ble Apex Court as below:
"23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime...."
Applying the above said principle to the case on hand, it has to be held that, primarily, the date of birth, as stated by none else than the alleged victim girl, as 29 Crl.A. No.100205/2020 25.04.2000 which has not been denied from the accused side since the said witness was not cross-examined from the accused side finds no reason to suspect it. Secondly, the school Admission Register at Ex.P.23, which is extracted at Ex.P.24, and the Study Certificate at Ex.P.22 issued by P.W.20, the Head Master of the School, would also go to show that the date of birth of the girl was 25.04.2000 only. As observed above, nowhere it was suggested to the witness that the date of birth was incorrect or fictitious. Thus, there is nothing to suspect or disbelieve that the date of birth of the alleged victim was not correctly shown in the Study Certificate at Ex.P.22. As per Rule 12(3)(ii) of the Juvenile Justice Rules, the date of birth confirmation certificate from the school stands on a higher pedestal to that of medical opinion of a Doctor.
As per Rule 12(3)(b) of the JJ Rules, it is only in the absence of the matriculation or equivalent certificates of the date of birth certificate from the School or a birth certificate given by a Corporation or a Municipal authority or a Panchayath, the medical opinion would be sought 30 Crl.A. No.100205/2020 from a duly constituted Medical Board, which will declare the age of the juvenile or the child.
28. In the instant case, since the certificate issued by the school as per Ex.P.22, which is based upon the record maintained by it at Ex.P.23 and since the author of Ex.P.22, who is the Head Master of the school, has also been examined as a prosecution witness (P.W.20), the medical opinion of P.W.24 which, in turn, is said to be based upon a Dentist and Radiologist Report, which Radiologist or Dentist, admittedly, are not examined, cannot be relied upon. As such, the age of the victim girl has to be necessarily held as Sixteen years, Eight months and Twentyeight days as on the date of the alleged offence in January 2017.
29. The accused herein (respondent) is accused inter alia of committing the offences punishable under Sections 363 and 366 of IPC. Though Section 363 of IPC speaks about punishment for kidnapping, however, it is 31 Crl.A. No.100205/2020 Section 361 which defines as to what constitutes 'Kidnapping' from lawful guardian ship in the following words:
"361. Kidnapping 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."
30. In the instant case, the alleged victim girl, who was examined as P.W.2, apart from giving her date of birth as 25.04.2000, has also stated that on the date of the incident, she was in the house of her grandmother. Even 32 Crl.A. No.100205/2020 P.W.1, the mother of P.W.2, also has stated that due to the holidays to the school, the alleged victim girl was left in her mother's (mother of P.W.1) house.
31. P.W.2 has stated that on 23.01.2017 she had gone with the accused; none had taken her, but she herself had gone with the accused. Though the prosecution cross-examined this witness after getting her treated as hostile, still the suggestion made by the prosecution that it was at the inducement and enticing of the accused she had gone with the accused was not admitted by her as true. Further, the evidence of P.W.1 that she lodged a complaint about the missing girl against the accused alleging that he had taken her with him was purely based upon a suspicion. Though the witness has further stated that, joined by the Police, when she went to Kolhapur, she traced the alleged victim girl in the company of the accused in a rented house, still she has not specifically alleged that the accused had induced or enticed her daughter and ahd taken her with him.
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32. The evidence of other prosecution witness, particularly, P.W.3, P.W.4, P.W.5 and P.W.6 would not throw much light on the said point. As such, even if it is taken that P.W.2, the alleged victim girl herself had gone with the accused, but undisputedly the same was without the consent of either P.W.1, the mother of the girl, or P.W.3, the grandmother of the girl. Thus, without the consent, knowledge or notice of such guardian, the minor girl (P.W.2) had herself gone with the accused. It is not the case of the accused also that before taking P.W.2 with him away from the house where she was residing and away from the custody of her lawful guardians, he had taken any consent or permission from them. The act of the accused allowing P.W.2 to come along with him away from the custody of her lawful guardian was without the consent of those lawful guardians.
33. The evidence of P.W.9 (C.W.8) Parashuram Shinde shows that as shown by none else than the alleged 34 Crl.A. No.100205/2020 victim girl, the mahazar of the place of offence of alleged kidnapping was drawn as per Ex.P.7. As observed above, even P.W.2, the alleged victim girl, has stated that as on the date of she going with the accused, she was staying in her grandmother's house. Thus, the place of the offence also stands established.
34. However, the above aspects that minor's consent was not a consent in the eye of law and that the prosecution has established the ingredients of the offence punishable under Section 363 of IPC was not properly appreciated by the Sessions Judge's Court. The same has resulted in the Sessions Judges Court pronouncing the judgment of acquittal for the offence even under Section 363 of IPC.
35. The accused is also charged with the offence punishable under Section 366 of IPC. The said section reads as below:
"366. Kidnapping, abducting or inducing woman to compel her marriage etc.- Whoever kidnaps or abducts any woman with intent that she 35 Crl.A. No.100205/2020 may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
36. P.W.2, the alleged victim girl, in her evidence, in very clear terms has stated that after leaving the house of her grandmother on 23.01.2017 and accompanied by the accused, she went to Belagavi, there in a temple, both of them got married to each other and from there they went to Kolhapur and stayed there in a rented house for a month. The evidence of P.W.1 shows that she, joined by the police and based upon the information given by the 36 Crl.A. No.100205/2020 police that the girl was traced at Kolhapur, had been to the house belonging to Kalpana Kamble in Yadavnagar at Kolhapur and there she noticed her daughter staying with the accused. She also stated that when enquired with her daughter (P.W.2) she was told about her (daughter) marriage with the accused in Vittal Mandir at Belagavi. The said statement that the accused married P.W.2 at Vittal Mandir, Belagavi, has not been denied or disputed in the cross-examination of P.W.1. Admittedly, P.W.2 was not cross-examined by the prosecution side. The alleged victim girl, even in her statement before the Magistrate under Section 164(5) of Cr.P.C. also has stated that she herself has joined the accused and gone with him to Kolhapur and on the way both of them got married to each other in Venkateshwara Temple, at Shivaji Nagar, Belagavi.
37. P.W.21 (C.W.18)-Smt. Kalpana Kamble, states that the accused accompanied by the alleged victim girl had approached her (the witness) requesting her to rent out a room for their residence, stating that the said girl was his wife. 37 Crl.A. No.100205/2020 Thus, believing that accused and the girl were husband and wife she had leased the shed for their residence. The witness has identified the victim girl in the photographs at Ex.P.2 and Ex.P.3 and also the accused.
38. P.W.22 (C.W.10)-Sri. Suhas Kamble has stated that it was in his presence, the police had drawn a panchanama of the said place as per Ex.P.26 and taken the photographs at Ex.P.4 and Ex.P.3.
39. P.W.23 (C.W.11) Sandeep Kopade, a neighbour of P.W.21-Smt. Kalpana Kamble, has stated that he too can be found in the photographs at Ex.P.2 and Ex.P.3. He has identified the alleged victim girl in the photographs and stated that she was staying in the house of C.W.18 (P.W.21)-Smt. Kalpana Kamble as a tenant. This witness has identified his signature in the panchanama at Ex.P.26 drawn at the spot and stated that along with that girl a boy was also staying with her.
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40. These evidences of the prosecution witnesses, more particularly, the undenied evidence of P.W.2 would go to show that the accused had also taken P.W.2 to a temple at Belagavi and they underwent the process which they call as 'marriage'. Thus, it is established that the accused had an intention to marry P.W.2. Though P.W.2 has stated that the said marriage was not against her will, however, as already observed, since she being a minor under the lawful guardianship of her parents at the time of the incident, her consent for her marriage with the accused would not be a valid consent in the eye of law. As such, the act of the accused, apart from kidnapping P.W.2, also showing his intention of marrying her and showing that the process which they call as 'marriage' was undergone in a temple at Belagavi, fulfills the ingredients of the offence under Section 366 of IPC and proves that the accused has committed the alleged offence punishable under Section 366 of IPC. However, on this aspect also, the Trial Court failed to appreciate the evidence placed before it in a 39 Crl.A. No.100205/2020 proper perspective rather interpreted the evidence of P.W.2 in its own manner to hold that the offence under Section 366 of IPC also could not be made out.
41. The other offence, which is a major offence alleged against the accused, is the offence punishable under Section 376 of IPC as well under Section 6 of the POCSO Ac.
42. On the point of the alleged rape and aggravated penetrative sexual assault upon the victim girl, the primary evidence is of the material witness who is none else than P.W.2, the victim girl in the matter. As observed above, nowhere in her evidence, she has stated that from the date of the accused taking her along with him on 23.01.2017 till she was brought back by the complainant- police, the accused had any sexual intercourse with her either with her consent or against her will. Her entire examination-in-chief is silent about the evidence on the said point. After treating her hostile, the prosecution in her 40 Crl.A. No.100205/2020 cross-examination, though made a suggestion that against her will, the accused had subjected her to repeated sexual intercourse for a period of one month, the witness has not admitted the said suggestion as true. Further, at the earliest opportunity, i.e., in her statement under Section 164(5) of Cr.P.C. before the concerned Magistrate, which statement is at Ex.P.5, the victim girl has not stated that she was subjected to rape or aggravated penetrative sexual assault by the accused. Though, in the said statement it is shown that she has stated that she had physical relationship with the accused, however, she also stated that the same was with her consent and willingness only. Thus, at the threshold itself, the prosecution has suffered with a major jolt and stumbled in proving the alleged guilt against the accused punishable under Section 376 of IPC and under Section 6 of the POCSO Act.
43. Apart from P.W.2, the other witnesses who have spoken about the alleged rape upon P.W.2 is the mother of P.W.2 i.e. P.W.1. Initially, in her examination-in- 41 Crl.A. No.100205/2020 chief, she did not speak anything about the sexual act of the accused upon P.W.2. However, in her cross- examination from the prosecution, she admitted a suggestion as true that she had stated before the Investigating Officer that during her stay with the accused in Kolhapur, the accused had forcible sexual intercourse with her daughter continuously for one month. However, even according to her, the said information was said to have been given to her by none else than P.W.2. Since the very P.W.2 herself has specifically and categorically stated that no such incident of rape or aggravated penetrative sexual assault has been taken place against her by the accused, the evidence of P.W.1 is not sufficient to hold that such an act has been committed by the accused. P.W.3, P.W.4 have not at all supported the case of the prosecution on the point of alleged rape upon P.W.2 by the accused.
44. The medical evidence on the point has come in the evidence of P.W.24, the doctor who had examined the victim girl. The said witness has stated that during the 42 Crl.A. No.100205/2020 medical examination of P.W.2, she had collected vaginal smear, cervical swab, pubic hair, nail clipping and also the dress worn by the victim girl and had handed over the same to the police for their scientific examination. The witness has further stated that the Forensic Science Laboratory Report was submitted to her for her final opinion. After going through the said report, she has given her final opinion stating that when she examined the girl it was not seen that she was subjected to sexual assault. She has identified the said report at Ex.P.27 and the FSL Report at Ex.P.28. The said FSL report is further supported by P.W.25 (C.W.27)-Dr. Mahadeshwara Swamy, Assistant Director of the RFSL, Belagavi, who has stated that he had examined the articles which were 14 items sent by the police to their laboratory for examination and after examination seminal stains were not detected in articles No.1, 2, 4, 5, 6, 7, 8, 9, 10, 11 and 14; presence of blood stains was not detected in articles No.3 and 12. So also, the skin tissues, spermatozoa was also not detected in 43 Crl.A. No.100205/2020 article No.13. Those articles, apart from including the nail clipping vaginal smear, cervical swab and the dress material of the victim girl, had also included the pant, shirt, nail clippings, pubic hair of the accused collected by P.W.28(C.W.28)-Dr. Anil Kumar Kulkarni when he examined the accused at the request of the complainant- police. Thus, in none of the articles seminal stains were found. Though P.W.28 has opined in his opinion, at Ex.P.31, that there was nothing to suggest that the accused was unable to perform sexual intercourse, however, the evidence of P.W.2, the evidence of the lady doctor-P.W.24, who examined the victim girl, would clearly go to establish that no such act of alleged sexual intercourse was committed by the accused, which could have been detected medically on 22.02.2017 when P.W.24 had examined P.W.2. Thus, in the absence of any allegation by P.W.2 in her evidence that accused had sexual intercourse with her and in the absence of medical corroboration to the allegation levelled against the accused 44 Crl.A. No.100205/2020 in prosecution about the alleged rape and penetrative sexual assault upon the victim girl by the accused, it cannot be held that the prosecution could able to prove the alleged commission of offence of rape and aggravated penetrative sexual assault upon the victim girl by the accused. It is analysing these aspects, the Sessions Judges Court has rightly held that the prosecution could not prove the alleged guilt punishable under Section 376 of IPC and under Section 6 of the POCSO Act against the accused.
45. Thus, even though the prosecution could able to prove beyond reasonable doubt that the accused committed the offences punishable under Sections 363 and 366 of IPC, it has failed to prove the offence against the accused punishable under Section 376 of IPC and under Section 6 of the POCSO Act. As such, the appeal deserves to be partly allowed only in setting aside the judgment of acquittal of the accused for the offences punishable under Section 363 and 366 of IPC. Accordingly, we proceed to pass the following:
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ORDER [i] The present criminal appeal is allowed in part.
[ii] The judgment of acquittal dated 26.12.2018 passed by the Second Additional District & Sessions & Special Judge, at Dharwad, in Spl.S.C. No.15/2017 acquitting the accused - Yashavant, S/o Obalesh Batri, R/o HDMC Quarters, Madarmaddi, Dharwad, Dist: Dharwad, for the offences punishable under Section 363 and Section 366 of IPC stands set aside. The accused is held guilty of committing the offences punishable under Section 363 and Section 366 of IPC.
The bail bond and surety bond executed by the accused stands cancelled.
To hear on sentence, the matter is passed over.
Sd/-
JUDGE Sd/-
JUDGE 46 Crl.A. No.100205/2020 HEARING ON SENTENCE Heard on sentence from both side.
The learned counsel for the accused/respondent submitted that accused is innocent of the alleged offences and that he is leading a happy marital life as such, most lenient view be taken including enlarging the accused under the Probation of Offenders Act, 1958.
Per contra, learned HCGP for the appellant submitted that since the offence committed is a heinous offence, as such, the maximum punishment that can be ordered, be ordered against the accused.
It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake. In the instant case, the accused is found guilty of the offences punishable under Sections 363 and 366 of IPC. Though the learned counsel for the accused has submitted that the 47 Crl.A. No.100205/2020 accused is now leading a marital life with commitments towards family, however, the proven fact has shown that he has committed the offence of kidnapping a minor girl with an intention to marry her. Thus, having taken the facts and circumstances of the case, we are of the view that the accused does not deserve to be given the benefit of Probation of Offenders Act. Hence, we proceed to pass the following:
ORDER ON SENTENCE [1] The accused (respondent) Yashavant, S/o Obalesh Batri, R/o HDMC Quarters, Madarmaddi, Dharwad, Dist: Dharwad is sentenced to undergo a simple imprisonment of two years and to pay a fine of `5,000/- (Rupees Five Thousand Only), and in default of payment of fine, to undergo additional simple imprisonment for one month, for the offence punishable under Section 363 of Indian Penal Code, 1860.48 Crl.A. No.100205/2020
[2] The accused (respondent) Yashavant, S/o Obalesh Batri, R/o HDMC Quarters, Madarmaddi, Dharwad, Dist: Dharwad is also sentenced to undergo a simple imprisonment of three years and to pay a fine of `6,000/- (Rupees Six Thousand Only), and in default of payment of fine, to undergo additional simple imprisonment of forty days for the offence punishable under Section 366 of the Indian Penal Code, 1860 [3] Both the sentences shall run concurrently.
[4] The accused is entitled for the benefit of set off under Section 428 of Cr.P.C. for the period having undergone by him in judicial custody, if any, in the matter.
[5] Out of the fine amount paid, if any, by the accused a sum of `10,000/- be paid to 49 Crl.A. No.100205/2020 P.W.2, the victim girl, and the remaining sum of `1,000/- be paid to the State [6] The accused shall surrender before the Sessions Judge's Court within thirty days from today.
Accused is entitled for a free copy of this judgment immediately.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately for their needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE KMS