Karnataka High Court
Doula S/O Hussain Sab vs The State A By The on 22 July, 2020
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS. JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100260/2016
BETWEEN:
DOULA S/O HUSSAIN SAB,
AGE: 23 YEARS,
OCC: WELDING WORK (PRESENTLY
AT CENTRAL PRISON, BALLARI),
R/O: M.D. CAMP,
TQ: HOSAPETE,
DIST: BALLARI.
... APPELLANT
(BY SMT. SUNITHA P KALASOOR, ADV.)
AND
THE STATE A BY THE
DEPUTY SUPERINTENDENT OF POLICE,
HAMPI SUB-DIVISION,
KAMALAPURA POLICE STATION,
TQ: HOSAPETE,
DIST: BALLARI,
REPRESENTED BY SPP
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HIGH COURT OF KARNATAKA,
DHARWAD.
... RESPONDENTS
(BY SRI.SHIVAPRABHU HIREMATH, AGA)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C., PRAYING TO CALL FOR
RECORDS IN SPECIAL CASE NO.106 OF 2014 ON THE
FILE OF LEARNED FIRST ADDITIONAL DISTRICT AND
SESSION JUDGE AT BALLARI AND TO ALLOW THE
APPEAL, SET-ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 19/01/2016 IN SPECIAL
CASE NO.106 OF 2014 ON THE FILE OF THE
LEARNED FIRST ADDITIONAL DISTRICT AND SESSION
JUDGE AT BALLARI FOR OFFENCE PUNISHABLE
UNDER SECTION 366-A, 506, 376 OF IPC AND UNDER
SECTION 4 AND 6 OF THE POCSO ACT AND ALSO
UNDER SECTION 3(2)(V) OF THE SC AND ST (PA) ACT
CONSEQUENTLY ACQUIT THE APPELLANT FROM ALL
THE CHARGES LEVELED AGAINST HIM.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.07.2020, COMING
ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
M.G.UMA,J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned Advocate for the appellant Smt.Sunitha P.Kalsoor and learned Additional Government Advocate Sri. Shivaprabhu Hiremath for the State.
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2. The appellant who is the 1st accused in S.C.106/2014 has preferred this appeal aggrieved by the impugned judgment of conviction dated 19/1/2016 and order of sentence dated 21/1/2016 passed by the I Additional District and Session Judge, Ballari, (for short, referred to as "the trial Court"), holding him guilty of the offences punishable under Sections 366-A, 506 and 376 r/w Section 34 of IPC, Sections 4 and 6 of Protection of Children from Sexual Offence Act, 2012 (for short, referred to as "the POCSO Act") and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, referred to as "the SC/ST Act"), while acquitting accused No.2 and
3.
3. The case of the prosecution in brief is that the informant Smt.Kamala belonging to valmiki Community runs a tea stall at M.D.Camp, Kampli and her daughter aged 15 years studies in 9th standard in the Govt. Girls :4: School. On 2/4/2014, the daughter left the house saying that she is going to Doddi but did not return. Informant's sister Neelamma, told that at about 5.20 p.m., she saw the victim being taken by accused No.1 on his pulsar motorbike. The informant along with other family members went in search of the victim, but could not find her. She suspected that accused No.1 belonging to Muslim community might have kidnapped the victim girl with an intention to marry her or with any other criminal intention and called on his phone. The 1st accused rudely replied that she could take back the victim, if she is willing and disconnected. Therefore, on 05-04-2014 the informant lodged first information requesting the police to trace victim and to initiate legal action against accused No.1. On the basis of such complaint in Cr.No.76/2014 was registered against accused No.1 for the offences punishable under Sections 366A of IPC r/w 3(2)(v) of SC/ST Act and took up investigation.
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4. During investigation, it was found that accused No.1 had kidnapped the victim and taken to Bangalore. There he committed penetrative sexual assault on her with the help of accused Nos.2 and 3. The victim was rescued and subjected to medical examination. After completing the investigation, charge sheet was filed against all the three accused for the offences punishable under Sections 366A, 506 and 376 r/w Section 114 of IPC, Sections 4 and 6 of POCSO Act and Section 3(2)(v) of the SC/ST Act.
5. The Special Court took cognizance of the matter. After securing the presence of accused 1 to 3, framed charges and they have pleaded not guilty and claimed to be tried.
6. To prove its case, the prosecution has examined PWs.1 to 21, got marked Exs.P1 to 29 and MOs.1 to 7. The accused 1 to 3 were examined as required under :6: section 313 Cr.P.C and they have denied all the incriminating materials. No defence evidence was let in by them.
7. The trial Court after taking into consideration the material on record, came to the conclusion that accused No.1 is guilty of the offences punishable under Sections 366-A, 506 and 376 r/w Section 34 of IPC, Sections 4 and 6 of POCSO Act and Section 3(2)(v) of the SC/ST Act, while acquitting accused Nos.2 and 3.
8. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, appellant- accused No.1 has preferred this appeal on various grounds.
9. Learned Advocate for the appellant-Smt. Sunitha P.Kalsoor in support of the grounds made out in the memorandum of appeal, submitted that the impugned judgment of conviction and order of sentence passed by :7: the trial Court is illegal, perverse and the same is liable to be set aside. The trial Court has committed an error in convicting accused No.1 even though the prosecution has failed to prove the guilt beyond reasonable doubt. The trial Court passed its judgment based on the interested testimony of the victim and her family members. Even though there is no material to connect the accused to the offence in question, the trial Court proceeded to convict accused No.1 without any basis. The version of the victim was not supported by the medical evidence, since PW6-the Doctor who examined her specifically stated that there were no signs of recent sexual intercourse. In spite of that, the trial Court proceeded to pass the impugned judgment of conviction and the same has resulted in miscarriage of justice.
10. The learned Advocate for the appellant also contended that there is inordinate delay in lodging the :8: first information. As per the case made out by the prosecution, the accused had kidnapped the victim on 3/4/2014 at about 5.25 p.m., but the complaint was lodged on 5/4/2014 at 6.00p.m. This inordinate delay in lodging the complaint is not explained. The evidence of PW5, so called eye witness to accused kidnapping the victim does not inspire any confidence. The conduct of PW3-the mother, PW4-the brother and PW5-sister of the victim girl creates reasonable doubt and their version cannot be relied upon to convict the appellant. The evidence of PW-1-the victim girl also is not Credit worthy. Her version that she was forcibly kidnapped by accused No.1 and that he committed penetrative sexual assault on her cannot be believed even for a moment. Admittedly, the victim girl was not kept under confinement, but even according to the version of PW1, she went with accused No.1 in a public transport and reached Bangalore. Even in Bangalore, they stayed in a room where accused No.1 had not :9: committed any sexual assault on her till 19/4/2014. Even though the victim girl states that accused No.1 committed sexual assaulted on 19th and 20th April 2014, same cannot be believed, looking to the conduct of accused No.1. The version of PW1 is not supported by the evidence of PW6-the Doctor who examined the victim on 23/4/2014. Under such circumstances, the trial Court has erred in convicting the appellant for the above said offences.
11. She further submitted that Ex.P9-the Medical Certificate issued by PW6 discloses that the victim is accustomed to sexual acts. Even though it is the prosecution case that the accused No.1 committed serious offence of penetrative sexual assault on the victim in the premises of Ashwini Granites, the material placed before the Court discloses that there was no such premises. Under such circumstances, the entire story of the prosecution regarding commission of the offence by the appellant must fall to the ground. : 10 :
12. She further submitted that the contention of the prosecution that the victim girl was a child or a minor is also not proved; and the evidence of PW9 or Ex.P14 are not of much help to the prosecution to prove this fact. Unless it is proved that the victim was a minor as on the date of the alleged incident, the provisions of POCSO Act cannot be attracted and the very jurisdiction of the Special Court to try the case is under serious doubt.
13. With these submissions, the learned Advocate for the appellant-accused No.1 seeks interference of this Court for setting aside the impugned judgment of conviction and order of sentence passed by the trial Court by allowing the appeal and to acquit accused No.1 of the above said offences, in the interest of justice.
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14. Per contra, the learned Additional SPP supported the impugned judgment of conviction and order of sentence passed against the appellant and submitted that the prosecution has examined the victim as PW1. She has fully supported the case regarding commission of the offence by the appellant. The school certificate, which is as per Ex.P14 issued by PW9 shows that the victim was a child aged 15 years at the time of the incident. Ex.P20-the caste Certificate issued by Tahsildar, PW14 discloses that the victim belongs to Valmiki community, a scheduled tribe.
15. Learned Addl. SPP further submitted that the version of the victim is supported by evidence of PW3-the mother, PW4- the brother and PW5- the sister of the complainant. Moreover, the examination of the victim by the Doctor-PW6 also reveals the commission of the offence by the accused. Drawing of the spot mahazar and seizure mahazar whereunder various material objects were seized is also proved by the : 12 : prosecution by examining the panchas and the investigating officer.
16. He further submitted that there is no inordinate delay in lodging the first information looking to the act of the complainant, making search them there, after filing the complaint and nature of the offence. Since the victim is a child, it cannot be contended that she is a consenting party. That the prosecution with the evidence of the victim and other circumstantial evidence has proved the guilt of accused No.1 beyond reasonable doubt and therefore, the trial court has not committed any error in convicting accused No.1; that the appellant has not made any grounds to interfere with the impugned judgment of conviction and order of sentence. On these grounds, he prays for dismissal of the appeal.
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17. We have given our thoughtful consideration to the materials on record in the light of the submission made by both sides. The State has not preferred any appeal against the judgment of acquittal of accused 2 and 3 or to seek enhancement of sentence imposed against Accused No.1.
18. In order to prove its case the prosecution examined PW1-the victim girl herself. This witness identified accused No.1 before the court and stated that on 2/4/2014, when she went near the Shanti Vidhyaniketana School to answer nature's call, accused No.1 came on the black Pulsar motorbike and took her by saying that they can marry. Thereafter she was taken to Kudtini and introduced her to one Zakir as the girl he is going to marry. Thereafter, the victim was taken to Torangallu where they boarded the Hampi express train and reached Bangalore. On the next day morning at 6.00 a.m., accused No.1 took the victim to a house stating that it belongs to his friend. They stayed : 14 : there for about 2 days. In the meantime, accused No.2 Zakir came to Bangalore, stayed there for a few days and went away. Subsequently, accused No.3-the brother of accused No.1 visited to inform that the victim's mother had lodged a missing complaint with Kampli police. Immediately, accused No.1 shifted the victim to a room near Ashwini Granites. She further stated that on the night of 19/4/2014, accused No.1, in spite of resisting, forcibly committed penetrative sexual assault on her. Even on the next day, he committed the said act. On 23/4/2014, the police came and rescued her. In the meantime, accused No.1 ran away and escaped. Witness stated that on being brought to Kampli by the police, she explained about commission of the offence by accused No.1 to her mother, brother, aunt and to the police. She was subjected to medical examination and she has given the statement before the court at Bellary. : 15 :
19. Witness stated that she had showed the scene of occurrence where accused No.1 committed penetrative sexual assault on her, to the police in the presence of panchas and spot Mahazar as per Ex.P1 was drawn; photos were also there. Witness identified her clothes as MOs.1 to 3 and stated that Ex.P4 is her statement recorded by the Magistrate. This witness was subjected to lengthy cross examination by the learned Advocate representing the accused. But in spite of that, nothing has been elicited from her to disbelieve her version. She stated during cross examination that she has not received any compensation amount from the Government and denied the suggestion that she got compensation of Rs.5,00,000/- and also denied the suggestion that in order to get compensation she has deposed falsely against accused No.1. She also denied the suggestion that her hymen was ruptured due to some other reason other than the sexual assault. She denied the suggestion that she never raised hue and cry : 16 : in order to resist when accused No.1 was kidnapping her.
20. PW2 is the mahazar witness to the spot panchnama Ex.P1. Witness stated that the scene of offence is near Ashwini Granites situated near Basavanagudi, Bangalore. The spot mahazar as per Ex.P1 was drawn and clothes of the victim girl as per MOs.1 to 3 were seized. During cross examination, this witness denied the suggestion that he had signed Ex.P1 in the police station and that he is deposing falsely in order to help the informant.
21. PW3 is the mother of the victim who lodged the first information as per Ex.P5. Witness deposed in respect of the first information Ex.P5 and stated that about 20 days after filing the missing complaint, the police brought her daughter who explained regarding the commission of the offence and that she was subjected to medical examination. Even though this : 17 : witness was cross examined at length, nothing has been elicited from her to discard her evidence. This witness also denied the suggestion that she is deposing falsely by filing a false complaint against accused No.1 in order to get compensation.
22. PW4 is the brother of the victim who also spoke about missing of the victim girl, lodging of the first information and rescuing the victim by the police. PW5 is the aunt of the victim girl who deposed before the Court that on the date of incident, she saw from a distance of 100 mts., accused No.1 taking away the victim on a motorbike and immediately, informed the same to PW3. During the course of cross examination the witness pleaded her ignorance regarding the registration number and the colour of the motorbike.
23. PW6 is the Doctor who examined the victim on 23/4/2014 brought with the history of penetrative sexual assault. This witness stated that on : 18 : enquiry the victim informed her that she had taken bath after the incident and was having menstrual cycle from 21/4/2014. Witness stated that she did not notice any external injuries but the hymen was not intact. She has issued the medical certificate as per Ex.P9 accordingly opining that the victim has undergone repeated coitus, with no evidence of recent coitus. During cross examination witness stated that even when a forcible sexual assault is committed, there need not be any injuries on the person of the victim and denied the suggestion that if a girl is subjected to sexual assault, it will take about 2 days for her to regain normalcy. The doctor has denied the suggestion that she has given a false certificate and also that she is seeing the victim girl for the first time before the Court.
24. PW7 is the Doctor who examined the accused and issued Ex.P12 to the effect that the accused is capable of performing sexual intercourse. PW8 is the Assistant Engineer, PWD, who has drawn : 19 : the spot sketch of the scene of occurrence as per Ex.P13.
25. PW10 is the Pancha to the seizure mahazar Exs.P15 and 16. Witness stated that he was summoned by Kampli police and when he had gone there, accused No.1 was in the police station and he produced his pant, shirt and inner wear. Ex.P15 was drawn while seizing those cloths. He has identified those clothes as MOs.4 to 6. Witness further stated that on the same day, accused No.1 produced the pulsar motorbike, which is seen in the photo Ex.P17 and it was seized under Ex.P18. PW11 is a witness to Ex.P6 which was drawn at the place from where accused No.1 kidnapped the victim . PW12 is the witness to Ex.P1- drawn in the room near Ashwini Granites, Bangalore. PW13 is the ASI, who accompanied the victim to Bangalore and drew Ex.P1, and it corresponds to the spot sketch, Ex.P19. : 20 :
26. PW14 is the Tahsildar who issued the caste certificate of the victim as per Ex.P20 to the effect that she belongs to Naik community, a Scheduled Tribe and as per Ex.P20, accused belongs to Muslim community.
27. PW15 is the police constable who traced the victim girl in Bangalore, near Kenchanapur cross, Kengeri. After rescuing her, he produced her before the investigating officer at Kampli. PWs.16 to 19 and 21 are the investigating officers. PW20 is the ASI who accompanied the victim to the hospital for medical examination.
28. The learned advocate for appellant disputed the age of the victim as contended by the prosecution. Regarding the age of the victim girl, the prosecution has led evidence of PW3-the mother of the victim. PW9- Assistant Principal has also spoken regarding this fact. As per Ex.P14, PW1 was studying in 9th standard : 21 : during 2013-14 and in the school records her date of birth is mentioned as 4/3/2019. During evidence PW9 has stated that the date of birth of the victim girl is mentioned in the school record as per the TC issued by the primary school. Therefore, at the time of incident she was only about 15 years old.
29. The date of birth as entered in Ex.P14 by PW9 is corroborated by the oral evidence of PW3, mother of the victim. The accused has not made any suggestion to deny PW9's evidence that the victim's date of birth is recorded in the admission register based on the TC issued by the Primary school. Such entry made by the school/college authorities in the discharge of their public duties is admissible in evidence U/s 35 of the Indian evidence Act. The accused has failed to rebut the correctness of the date of birth of the victim as entered in Ex.P14.
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30. It is the trite of law that for determination of the age of the child, date of birth as entered in the school record can be relied upon. The Hon'ble Apex Court in Jarnail Singh Vs. State of Haryana1 had an occasion to deal with this aspect of the matter and held in paragraphs 22 and 23 as under:-
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules).
The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
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 1 (2013) 7 SCC 263 : 23 : the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a : 24 : subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon."
31. Even though Juvenile Justice (Care and Protection of Children) Act, 2000 is replaced by Juvenile Justice (Care and Protection of Children) Act 2015, Section 94 of the new enactment deals with the presumption and : 25 : determination of age The same is extracted here below for easy reference:
"94. Presumption and determination of age:
(1) xxxx..
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining;
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;"
32. In Jarnail Singh's case cited supra, the Hon'ble Apex Court has made it clear that even though Rule 12 of the Juvenile Justice (Care and Protection Rules) 2007 is applicable for determination of the age of a child in : 26 : conflict with law, the same may be made applicable even to the child who is a victim of the crime.
33. Since both under repealed Act and the new Act, similar procedure is prescribed to determine the age of the juvenile or the child and since the victim has not yet passed the matriculation, Ex.P14 issued by PW-9, the Assistant Principal of the PU College could certainly be relied on in proving the date of birth of the victim as the witness specifically stated that the said date of birth was written on the basis of the information found in the transfer certificate which was issued by the primary school i.e the school first attended by the victim. The said document discloses that the date of birth of the victim girl is 4/3/1999 and therefore, she was a minor, aged 15 years at the time of the alleged incident.
34. We are conscious of the position of law that the court has to be very careful in accepting any document. Only if the document produced before it appears to be : 27 : genuine and reliable, then such document can be accepted. On consideration of the evidence of PW1- victim, PW3-mother and PW9-assistant principal of the PU college where the victim was studying, in the light of the certificate-Ex.P.14, we do not find any reason to doubt the correctness of PW1's age at the time of incident.
35. The next contention taken by the learned Advocate for appellant-accused No.1 is with regard to the proof of commission of the offence by accused No.1. To prove kidnapping of the minor girl, the prosecution is relying on the evidence of the victim herself i.e. PW1 and her aunt-PW5. The evidence of PW15 that the victim was found in the company of the accused in Bengaluru also supports this contention of the prosecution. If the evidence of these witnesses is taken into consideration we do not find any reason to reject the case of the prosecution. Moreover, no probable defence was taken : 28 : by the accused to suspect the contention of the prosecution. The learned Advocate for the accused contended that as per the version of PW1, she was taken from the scene of occurrence to Torangallu and from there, they traveled in the train-Hampi express, to Bengaluru and stayed there for few days, but never raised hue and cry and under such circumstances, procuring the minor girl as required under Section 366- A of IPC is not proved.
36. Of course, the minor girl could have alerted the co-passengers or the general public when she was being taken to Bangalore, but it appears she has not done so. PW1 in her evidence says that the accused induced her to go with him by saying that they can marry. From this it appears that accused No.1 promised to marry PW1 in order to get her consent to accompany him and therefore PW1 consented to the same under misconception of fact. As provided U/s 90 of IPC no consent can be translated as true consent when given : 29 : by a person under fear of injury or coercion or under misconception of fact.
37. Even otherwise, PW1 being a minor at that time was incapable of giving consent and therefore nothing much can be made of PW1 not resisting the accused No.1 taking her away from the lawful guardianship of her mother. Section 366-A of IPC deals with procuration of a minor girl for the purpose of seducing or forcing her to have illicit intercourse with another person. But the prosecution case is that the accused No.1 kidnapped the victim, a minor from the lawful guardianship of her mother-PW3 and took her to Bangalore and forcibly had sexual intercourse against her wish. Therefore it falls U/s 366 of IPC and not under 366-A IPC.
38. The evidence of the victim-PW1, assumes importance to prove the commission of the offence by the accused. The evidence of PW5-aunt of the : 30 : victim that she saw accused No.1 taking the victim on his motorbike. Her version is not denied during cross examination. PW1 herself specifically deposed before the court regarding the offence committed by the accused.
39. To prove the commission of offence under Section 366 IPC it is not necessary to prove that the victim was kidnapped by force or abducted or kidnapped against her will or with compulsion etc. On the other hand kidnapping or abducting a woman with the intent to compel to marry or to force or seduce her to have sexual intercourse is sufficient to constitute the said offence. Under such circumstances, we are of the opinion that the prosecution is successful in proving the guilt of this accused for the offence punishable under Sec. 366 of IPC beyond reasonable doubts and he is liable to be convicted for the said offence. : 31 :
40. The next contention taken by the appellant is that even though the medical record-Ex.P9 discloses that hymen was not intact, there was no evidence of recent coitus and under such circumstances, the version of PW-1 is falsified.
41. We have gone through the medical certificate Ex.P9 issued by PW6. No injuries were found on the body of the victim, but the hymen was not intact. The doctor has also opined that the victim has undergone repeated coitus but there was no evidence of recent coitus. In this regard, the evidence of PW6 assumes importance. She has supported the finding in Ex.P9. During cross examination, nothing has been elicited from her to contradict the version of PW1 that accused No1 committed penetrative sexual assault on her on 19th and 20th April 2014. The possibility of commission of the offence on 19th and 20th April is never falsified. It was never asked to this witness to explain about the word 'recent' used in Ex.P9.
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42. It is pertinent to note that the victim was kidnapped by accused No.1 on 3/4/2014 and it is the contention of the prosecution that he committed penetrative sexual assault on 19th and 20th April 2014. The victim was found in the company of accused No.1 on 22/4/2014 and she was brought back to the village and subjected to medical examination on 23/4/2014. PW6 in her evidence clearly states that the victim had taken bath and she had already changed her cloths. She also stated that the victim girl had menstrual circle from 21/4/2014. Probably owing to these developments, no sign of recent sexual assault could be found either in the private part of the victim or on her cloths. Under such circumstances, accused No.1 cannot take advantage of the observation made in Ex.P9 by PW6. Nor can that be a basis for concluding that the prosecution has failed to prove the commission of the penetrative sexual assault on PW1.
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43. As we have already noted, PW-1 has specifically stated in her evidence that the accused No.1 had sexual intercourse with her against her will on 19.04.2014 and 20.04.2014 when they stayed together in Bengaluru. The medical evidence is also to the effect that the victim had undergone repeated coitus. Committing penetrative sexual assault on a minor more than once or repeatedly, is classified as aggravated form of the offence U/s 5(l) of the POCSO Act and Sec.114-A of the Indian Evidence Act also enables the court to raise a presumption that the woman who is a victim of rape had not consented for the act and it was committed against her will.
44. Under Section 375 of IPC the act of rape is defined and the circumstances under which it is said to be committed, to constitute the offence. If offence of rape is committed on a victim under the age of sixteen : 34 : years, it was punishable under Section 376(2)(i) of IPC which came to be omitted by Act no.22 of 2018 w.r.e.f.21-04-2018. In this case the offence was committed on 19th and 20th of April 2014 and therefore it is punishable under Section 376(2)(i) of IPC. Under the circumstance described under clause sixthly of 375 IPC, consent or otherwise of the victim is immaterial when the offence is committed on a victim under the age of eighteen years.
45. To constitute the offence of either rape under Section 375 of IPC or penetrative sexual assault as defined under Section 5 of the POCSO Act, the victim is not required to explain in detail before the court, the horrifying act. Sexual violence is not only a dehumanising act but also intrudes into the victim's right of privacy and sanctity. Expecting the victim to explain step by step as to how the accused violated her, degrades and humiliates her. Where the victim is a : 35 : helpless child or a minor, it leaves behind a traumatic experience. The courts must be sensitive towards the plight of the victim of such offence. Under the guise of eliciting evidence, she can not be compelled to reproduce minute details of the horrendous act.
46. Probably keeping in mind the tendency of posing all kinds of questions to humiliate the victim in a bid to deal a blow to her honour and to make her relive the horror while in the witness box, Section 33 (2) of the POCSO Act is enacted to safeguard and insulate the minor victim from the same. It mandates that while recording the evidence of the child, the Special P.P. or as the case may be the counsel for the accused to communicate to the special court, the question to be put to the victim and the court shall in turn put it to the victim. Further, Section 33(6) of the POCSO Act mandates the Court not to permit aggressive questioning or character assassination of the child and : 36 : to ensure maintaining the dignity of the child at all times during the trial.
47. Position of law regarding appreciation of the evidence of the child witness is well settled. A child witness, if found competent to depose to the facts and if her version is reliable, such evidence could be the basis of conviction. The only precaution which is to be taken by the court while appreciating such evidence is to rule out any possibility of tutoring. If the Court is satisfied that the evidence of the child is not the tutored version and if it is found reliable, the same can be the sole basis for conviction.
48. It is also the settled position of law that if the version of the prosecutrix is credible, consistent, inspires confidence and with out any basic infirmity, same can be the sole basis for conviction. In support of this we place reliance on the decision of the Honble Apex Court in Dola Alias Dolagobinda Pradhan and : 37 : Another Vs. State of Odisha2 wherein the Hon'ble Apex Court summarized the general Rule and exceptions thereto, to base the conviction on the sole testimony of the prosecutrix, at paragraphs 6 to 9 as under:-
"6. It is well settled law that if the version of the prosecutrix is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. Corroboration is not a sine qua non for a conviction in a rape case. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, 2 (2018) 18 SCC 695 : 38 : as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown up and married woman gives evidence on oath in Court that she was raped, it is not the proper judicial approach to disbelieve her outright.
7. In this regard it would be useful to quote certain observations of this Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is observed that:
"10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and : 39 : large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites.
Because: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbors. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always : 40 : haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these : 41 : factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness.
Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World (Obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic : 42 : infirmity, and the "probabilities factors" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation. Or when the 'probabilities factor' is found to be out of tune".
(emphasis supplied)
8. In Sadashiv Ramrao Hadbe v. State of Maharashtra, [(2006) 10 SCC 92], this Court reiterated that the sole testimony of the prosecutrix could be relied upon if it inspires the confidence of the Court:
"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the : 43 : version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
8. However, as is also evident from the observations above, such reliance may be placed only if the testimony of the prosecutrix appears to be worthy of credence. In this regard, it is also relevant to note the following observations of this Court in the case of Raju v. State of Madhya Pradesh, [(2008) 15 SCC 133], which read thus:
"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, : 44 : the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." Having due regard in our mind to the above-mentioned settled position in : 45 : law, we have assessed the entire material on record meticulously."
49. It is also a settled position of law that the victim of the sexual assault will be in the position of an injured eye witness and the evidence of such witness cannot be discarded so easily, unless there are any compelling reasons to do so.
50. The evidence of PW1 in this case is found to be credible and no corroboration can be looked for with regard to accused No.1 committing sexual assault on her. Because they were the only two persons in that room in Bangalore. Even otherwise such offences are not committed openly in the presence of every one. Nothing is elicited during her cross examination to say that she is tutored by someone. The details regarding commission of the offence by the 1st accused, as given by the victim in her evidence is sufficient to attract both Section 5(l) of POCSO Act and Section 375 of IPC. : 46 :
51. The POCSO Act 2012 is a special enactment brought in to effect with the intention to secure the freedom and dignity of tender aged children and from protecting their childhood and youth against exploitation and abuse, by providing all safeguards for their proper development in a healthy manner, also to ensure their right of privacy and confidentiality and to safeguard their best interest and well being for all round development in the society.
52. The Act enables the special court to presume that the accused has committed the offence in question unless the contrary is proved by him. This presumption under Section 29 of the Act operates once the prosecution is successful in placing sufficient material to prove commission of the offence under Section 3, 5, 7 or Section 9 of the Act. When once the Special Court presumes commission of any of these offences by the accused, it is for him to rebut the same. Of course the : 47 : accused can rebut the presumption by shattering the version of prosecution witnesses during cross examination or by demonstrating before the court that the version of the prosecution is not probable, either by stepping in to the witness box or by examining any witness or by placing any material in support of his defence. No such attempt is seen to have taken in this case.
53. In the present case, the discussion held above discloses the commission of the offence by the accused under Section 5(l) of the POCSO Act punishable under Section 6 and the offence under Section 375 of IPC, punishable under Section 376(2)(i) of IPC, as it stood on the date of commission of the crime. But the accused has not rebutted the presumption under Section 29 of the POCSO Act.
54. Yet another contention taken by the appellant is with regard to the delay in lodging the : 48 : complaint. As noted earlier, the incident of kidnapping the minor victim took place on 3/4/2014 at 5.20 pm. The first information as per Ex.P5 was lodged on 5/4/2014 at 6.00 pm. The informant, mother of the victim who is examined as PW3 has stated that after coming to know that her daughter was taken away by accused No.1 on a motorbike, she and her family members searched for her. She even called the accused on his mobile. Being unable to get any information about the minor daughter, she lodged the complaint after two days. PW4 is the brother of the victim and he has also deposed that they were searching for the girl for two days and thereafter, they thought of filing the complaint. The reason assigned by the first informant for the delay in lodging the complaint does not appear to be concocted or an afterthought. It is quite natural for a mother to search for her minor daughter who is kidnapped, with the fond hope of getting her back, without bringing the incident to the notice of the : 49 : villagers. Lodging of the complaint with the police will result in the villagers coming to know about the missing of the girl and the family reputation may be at stake. Nothing has been elicited from these two witnesses to say that deliberately first information was not lodged immediately, or that there was some deliberation before filing Ex.P5 to implicate accused No.1. No contention is taken by this accused that either PW1 or the members of her family are having any motive to falsely implicate him. Under such circumstances, we do not find any merits in the contention taken by the appellant in that regard.
55. When the prosecution is successful in proving that accused No.1 had kidnapped the victim, a minor, to seduce her to illicit intercourse and then committed rape/penetrative sexual assault more than once on her, he is liable to be punished for the offences punishable under Sections 366 and 376(2)(i) of IPC and also under Section 6 of POCSO Act.
: 50 :
56. Section 42 of the POCSO Act mandates that regardless of anything contained in any law for the time being in force, the offender found guilty of the offences as prescribed therein, shall be liable for punishment of greater degree either under the POCSO Act or under the Indian Penal Code. The offence under Section 376(2)(i) of IPC as it stood at the time of commission of the offence was punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the reminder of that person's natural life, and shall also be liable to fine.
57. Section 6 of the POCSO Act as it stood before the amendment by Act No.29 of 2019, provided for rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and also fine. The trial court imposed sentence on the accused for the offence punishable under Section 376 of IPC to under go : 51 : rigorous imprisonment for a period of 10 years with fine and default sentence and under Section 6 of POCSO Act, to under go simple imprisonment for a period of 10 years with fine and default sentence. But however the State has not preferred any appeal seeking enhancement of sentence imposed by the trial Court. Having regard to Section 42 of the POCSO Act, we are of the opinion that the accused is liable to undergo rigorous imprisonment for 10 years and to pay fine, as provided under Section 376(2)(i) of IPC.
58. Regarding the contention of the prosecution that the accused has committed offence punishable under Section 506 of IPC, we do not find any convincing material to substantiate the same. Hence, we hold that the prosecution has not proved the commission of the offence punishable under Section 506 of IPC by the accused.
: 52 :
59. Similarly the prosecution has not proved the offence punishable under Section 3(2)(v) of the SC/ST Act, since it has not placed any material to prove that simply because the victim girl belongs to scheduled tribe, the accused No.1 has committed the offence under IPC, which is punishable with imprisonment for a term of 10 years or more. In the absence of any material to prove the intention on the part of the accused in committing the offence only because the victim belongs to schedule tribe, the conviction under this provision is not sustainable. The Hon'ble Apex Court made this position clear in Asharfi Vs. State of Uttar Pradesh3, at Paragraphs 7 and 8 which reads as under:-
"7. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, it is clear 3 AIR 2017 SC 5819 : 53 : that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.
8. The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.": 54 :
60. We have gone through the impugned judgment of conviction and order of sentence passed by the trial court. It has convicted the accused for the offence punishable under Section 366A instead of Section 366 IPC, and Section 376 of IPC, Sections 4 and 6 of the POCSO Act by properly appreciating the materials on record, but committed an error in convicting him for the offence punishable under Section 506 of IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act without there being any material for the same. Hence, appellant/accused No.1 is entitled to be acquitted for the offence punishable under Section 506 of IPC, and Section 3(2)(v) of the SC/ST Act.
61. Section 33(8) of the POCSO Act read with Rule 7(2) and (3) provides for compensation to the child-victim in appropriate cases. The victim was a minor at the time of the incident. She would certainly need rehabilitation : 55 : having suffered mental trauma, as a result of the incident. This in our opinion calls for a direction to the trial court to recommend her case for payment of compensation under the relevant Scheme, as provided under Section 357A of Cr.P.C.
62. In the result, we proceed to pass the following:-
ORDER The appeal is allowed in part.
The impugned judgment of conviction dated 19.01.2016 and the order of sentence dated 21.01.2016 passed by the learned I Additional District & Sessions Judge, Ballari, in S.C. No.106/2014 is modified.
The conviction recorded by the trial Court against the accused for the offences punishable under Sections 506 of IPC, Section 4 of POCSO Act and Section 3(2)(v) of SC/ST (Prevention of atrocities) Act, is set aside.
The conviction of accused No.1 for the offence punishable under Section 366A IPC shall be treated as conviction for the offence under Section 366 of IPC and the sentence imposed is confirmed.
: 56 :
The conviction of accused No.1 for the offence punishable under Section 376 (2)(i) of IPC, Section 6 of the POCSO Act is upheld and he is sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs.50,000/- and in default to pay fine, to undergo simple imprisonment for a period of two years.
The sentence shall run concurrently.
The trial Court is directed to refund the fine amount if any, deposited by accused No.1 for the offences punishable under Section 506 of IPC, Section 4 of POCSO Act or for the offence punishable under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, on due identification.
The trial Court is also directed to recommend award of compensation to the victim, by the DLSA concerned, in accordance with the Victim Compensation Scheme, as provided under Section 357A of Cr.P.C.
[Sd/-] JUDGE [Sd/-] JUDGE Vmb