Karnataka High Court
State Of Karnataka vs R. Allahbhakshi @ Bhakshi on 11 July, 2023
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NC: 2023:KHC:23847-DB
CRL.A No. 623 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 623 OF 2017
Between:
State of Karnataka
by Chitradurga Kote Police Station,
Represented by State Public Prosecutor,
High Court Building, Bengaluru-01.
...Appellant
(By Smt. Rashmi Jadhav, HCGP)
And:
1. R. Allahbhakshi @ Bhakshi
Son of Ramzan Sab,
Aged about 30 years,
Occ: Welding,
Digitally signed R/o. Near Noorani Masjid,
by C K LATHA Railway Station Badavane,
Location: HIGH Chitradurga City-577 501.
COURT OF
KARNATAKA
2. H.Ningappa
S/o. Hanumanthappa
Aged about 48 years,
R/at Near Noorani Mosque
Railway Station Layout,
Chitradurga Town, Chitradurga District
[Respondent No.2 impleaded vide court
order dated 14.7.2022]
...Respondents
(By Sri P.B.Umesh, Advocate for
Sri R.B.Deshpande, Advocate for R1;
R2 - served, unrepresented)
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CRL.A No. 623 of 2017
This Criminal Appeal is filed under section 378(1) & (3)
Cr.P.C. praying to grant leave to appeal against the judgment
and order of acquittal dated 05.12.2016 passed by the II
Additional District and Sessions Judge, Chitradurga in
Spl.C.(POCSO) No.2/2015 - acquitting the first
respondent/accused for the offence p/u/s 363, 366, 376(2)(i)
of IPC and section 4 of POCSO Act, 2012 and etc.,
This Criminal Appeal having been heard and reserved on
15.06.2023 coming on for pronouncement this day, Sreenivas
Harish Kumar J., pronounced the following:
JUDGMENT
In this appeal by the State, the judgment of acquittal dated 5.12.2016 passed by the II Additional District and Sessions Judge, Chitradurga, in Spl.C.(POCSO) No.2/2015 is sought to be reversed.
2. Briefly stated the prosecution case is as follows;
On 04.10.2014, PW22 along with her mother and sisters had been to watch Dasara Procession at Chitradurga. Around 2.00 PM they all returned home. PW22 went out again to remove the slippers left outside the house, but did not come -3- NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017 inside, when she went unseen, her mother informed it to PW1, the father of PW22. When he made enquiry here and there, Ramesh, i.e., PW2 told him that he saw the accused taking his daughter in an autorickshaw. PW1 went to the house of the accused and asked his father of the same, but he got evasive answers from him. Therefore at 4.00 PM on 05.10.2014 he went to police station and gave a report based on which the police registered an FIR in Crime No. 147/2014 for the offences under Sections 363, 114 read with Section 34 of IPC. After tracing of PW22, her statement was recorded and after completing the other formalities, charge sheet came to be filed against the accused for the offences under sections 366, 376 (2)(i) of IPC and section 4 of POCSO Act.
3. On assessment of oral evidence of 25 prosecution witnesses and documentary evidence as per Exs.P1 to P40, the trial court found that the -4- NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017 prosecution failed to prove that PW22 was a minor girl. Ex.P25 is the certificate issued by PW16 who was the headmaster of the high school where PW22 was studying. In Ex.P25 he mentioned her date of birth as 23.1.2000. Ex.P27 is the report given by PW17 stating that age of PW22 was around 15-16 years. Referring to these documents, the trial court held that though in Ex.P25 the date of birth is mentioned as 23.1.2000, PW17 stated in the evidence that he gave his opinion observing the developments of bones and therefore marginal error of two years on either side was possible. In this view the trial court came to a conclusion that the prosecution was not able to prove that PW22 was still a minor. Then referring to admission given by PW22 that she was in love with the accused, it was not possible to believe the prosecution case that she was subjected to forcible sexual intercourse by the accused.
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4. Questioning the correctness of the findings of the trial court, Smt. Rashmi Jadhav, learned Government Pleader, argued that Ex.P25 is conclusive proof with regard to age of the girl. The evidence given by PW17 is also that the age was around 15-16 years. If Ex.P25 is seen in the light of the age assessed by PW17, the age of PW22 was below 18 years and she was a minor. Then she refers to the entire evidence of PW22 to substantiate her argument that her testimony is so clear that she was kidnapped by the accused when she was returning home after attending the Dasara procession; she was brought to Harihara and the accused first had sexual intercourse with her in a room situated beside a toilet of the Urdu school by tying her limbs. She was threatened to be killed if she shouted. She was taken to Hubli and from there to Chennai and from there to Patna where she was confined in a room and subjected to sexual intercourse forcibly. The evidence of PW22 -6- NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017 has not been discredited in the cross-examination. The evidence of PW2 shows that he saw accused taking PW22 in an autorickshaw and therefore the incident of rape on a minor girl has stood proved. PW21 is the doctor who examined PW22 and he found rupture of hymen. Therefore the evidence of PW22 finds corroboration from the testimony of PW21. This being the evidence the trial court ought not to have acquitted the accused.
5. Sri P.B.Umesh, learned counsel for the respondent No.1/accused, argued that the whole incident of sexual assault on PW22 is concocted, the evidence clearly shows that PW22 was not a minor. Ex.P25 cannot be acted upon because it was issued by the headmaster of the school which was not first attended by PW22. The requirement was that age proof must be provided by the school first attended by the girl. The evidence given by PW17 cannot also be acted upon because based on -7- NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017 the developments of the bone, only approximate age could be fixed and as has been admitted by PW17, marginal benefit of two years is always available. Thus seen PW22 cannot said to be a minor. Though PW22 appears to have not been assailed in the cross-examination, yet if it is considered as a case of consent, because of insufficiency of evidence with regard to age of the girl, accused cannot be convicted and the trial court came to right conclusion to acquit him. For these reasons, appeal is devoid of merits.
6. We have considered the arguments.
7. Certainly the whole issue revolves around age of PW22 as her evidence indicates that she too might be a consenting party for the sexual intercourse. If she was a minor, her consent was immaterial. In this background all that we need to examine is whether the finding of the trial court -8- NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017 that PW22 was not a minor on the date of incident is correct or not.
8. It is true that PW22 has given her date of birth as 23.01.2000, and in proof of the same, the prosecution produced Ex.P25, a certificate issued by the Head Master of the High School stating that the date of birth of PW22 is 23.01.2000. The incident took place in the month of October, 2014. The Hon'ble Supreme Court in the case of JARNAIL SINGH VS. STATE OF HARYANA [AIR 2013 SC 3467] has held that the age of the rape victims should be determined in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Minors) Rules, 2007. According to Rule 12, the following are the documents that may be produced by the prosecution in proof of the age.
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NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017 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 Corporation or a Municipal Authority or a Panchayat.
9. Now in the case on hand, Ex.P25 falls under none of the above categories. High School was not the school first attended by PW22. Therefore Ex.P25 cannot be considered to be a primary document in proof of age. Then the prosecution has relied on Ex.P27, the report of the Radiologist of District Hospital, Chitradurga. According to this document age of PW22 was around 15 to 16 years. PW17 admits in the cross examination that a marginal difference of two years can be taken either side for the age that he determined based on the developments of the
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NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017 bones of PW22. Since the benefit is to be given to the accused, two years is to be added to the higher end age i.e., 16 years and thus seen, certainly there arises a doubt with regard to correct age of PW22. And this benefit should be available to the accused. For this reason, we don't find good reason to interfere with the judgment of the trial court. Appeal is therefore dismissed.
Sd/-
JUDGE Sd/-
JUDGE CKL/KMV List No.: 1 Sl No.: 2