Karnataka High Court
State Of Karnataka vs Sri S Sayuj on 10 December, 2024
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2024:KHC:51069-DB
CRL.A No. 497 of 2018
C/W CRL.A No. 1702 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 497 OF 2018 (C)
C/W
CRIMINAL APPEAL NO. 1702 OF 2017
IN CRL.A No. 497/2018
BETWEEN:
STATE OF KARNATAKA
THROUGH DEPUTY
SUPERINTENDENT OF POLICE,
MADIKERI SUB-DIVISION,
Digitally signed by MADIKERI, KODAGU,
MAYAGAIAH REPRESENTED BY SPP,
VINUTHA HIGH COURT OF KARNATAKA,
Location: HIGH
COURT OF BANGALORE-01.
KARNATAKA ...APPELLANT
(BY SRI. VIJAYKUMA MAJAGE, SPP-II)
AND:
SRI. S. SAYUJ
SON OF LATE P.R. SHASHI,
AGED ABOUT 31 YEARS,
COOLIE, R/O SHASTHRIHALLI,
MEKOOR-HOSKERI VILLAGE,
POLLBETTA TOWN,
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NC: 2024:KHC:51069-DB
CRL.A No. 497 of 2018
C/W CRL.A No. 1702 of 2017
VIRAJPET TALUK-571 218.
...RESPONDENT
(BY SRI. D P PRASANNA, ADVOCATE)
THIS CRL.A. IS FILED U/S.377 OF CR.P.C PRAYING TO
MODIFY THE JUDGMENT AND ORDER DATED 06.10.2017 ON
THE FILE OF PRINCIPAL SESSIONS AND SPECIAL JUDGE,
KODAGU - MADIKERI IN SPL.C.(ATROCITIES AND POCSO)
NO.22/2014 INSOFAR AS IT RELATES TO IMPOSING
INADEQUATE SENTENCE AGAINST THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 376(2)(i) OF
IPC BY IMPOSING ADEQUATE AND MAXIMUM SENTENCE
AGAINST THE RESPONDENT/ACCUSED AND ALLOW THIS
CRL.A.
IN CRL.A NO. 1702/2017
BETWEEN:
S.SAYUJ
S/O LATE P.R SHASHI
AGED ABOUT 30 YEARS,
R/O SHASTHRI HALLI
MEKOOR-HOSKERI VILLAGE
POLLBETTA TOWN
VIRAJPET TALUK
...APPELLANT
(BY SRI. PRASANNA D.P, ADVOCATE)
AND:
STATE OF KARNATAKA
BY DY.S.P MADIKERI
SUB DIVISION MADIKERI
KODAGU DIST-571 201
REPRESENTED BY S.P.P
HIGH COURT COMPLEX
BENGALURU-560 001.
...RESPONDENT
(BY SRI. VIJAYKUMAR MAJAGE, SPP-II)
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NC: 2024:KHC:51069-DB
CRL.A No. 497 of 2018
C/W CRL.A No. 1702 of 2017
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND CONVICTION WITH FINE
DATED 06.10.2017 PASSED BY THE PRINCIPAL SESSIONS AND
SPECIAL JUDGE, KODAGU, MADIKERI IN SPL.C.(ATROCITY
AND POCSO) NO.22/2014 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(2)(i) OF
IPC AND SEC. 4 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012 AND U/S 3(1)(xii) AND 3(2)(v) OF SC/ST
(PREVENTION OF ATROCITY) ACT R/W SEC. 511 OF IPC AND
SEC. 506 OF IPC.
THESE APPEALS, COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K) These two appeals are directed against the judgment of conviction and order of sentence dated 06.10.2017 passed in Special Case (Atrocity & POCSO) No.22/2014 by the Court of Principal Sessions and Special Judge, Kodagu at Madikeri, whereby the learned Special Judge convicted the appellant for the offences punishable under Sections 376(2)(i) and 506 of IPC, Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO) and Section 3(1)(xii) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'POA Act') r/w -4- NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 Section 511 of IPC and sentenced him to undergo imprisonment for a term of 5 years with a fine of Rs.10,000/- for the offence punishable under Section 376(2)(i) r/w Section 511 of IPC and in default of payment of fine, to under go simple imprisonment for a period of 6 months. Further, the accused was sentenced to undergo imprisonment for a term of 1 year with a fine of Rs.1,000/- for the offence punishable under Section 3(1)(xii) of POA Act r/w 511 of IPC and in default of payment of fine, he shall undergo simple imprisonment for a term of 1 month. Additionally, the accused was also sentenced to undergo imprisonment for a term of 5 years and to pay a fine of Rs.5,000/- for offence punishable under Section 3(2)(v) of POA Act r/w Section 511 of IPC and in default, he shall undergo imprisonment for a term of 5 months. Simultaneously, the accused was sentenced to undergo imprisonment for a period of 3 years and to pay a fine of Rs.3,000/- for the offence punishable under Section 506 of IPC and in default of payment of fine, he shall undergo imprisonment for a period of 3 months. Lastly, the accused was sentenced to undergo imprisonment for a period of 5 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 4 of the -5- NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 POCSO Act r/w Section 511 of IPC and in default, he shall undergo simple imprisonment for a period of 5 months. Further, it was ordered that all sentence shall run concurrently.
2. The factual matrix of the prosecution case, in brief are that:
On 01.06.2014, the victim-PW.1, in the instant case, had been to Pollibetta within the jurisdiction of Madikeri Police Station to collect stitched clothes from the tailoring shop. Since the Tailor insisted her to revisit on Tuesday while she was waiting at the bus shelter to go back home, the accused approached her informing that, her mother's cloths were in his house and notified her to collect the same. Reposing faith in his words, the victim visited his house, where the accused raped her. When she cried for help the neighbours came near the house of the accused. Thereafter, she informed the same to Smt.Shantha, her maternal aunt. Further, they both visited the Siddapura Police Station at Madikeri, Kodagu, where the victim lodged a complaint as per Ex.P1. Based on her complaint, the said police registered the crime against the accused for the offences punishable under Sections 376 and 506 of IPC, Sections 4, 6, 8 & 12 of POCSO Act and section 3(i)(x) of POA -6- NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 Act in Cr.No.90/2014 dated 01.06.2014 as per Ex.P14.
Subsequently, on the same day, the victim was sent for a medical examination and later in the day her statement was recorded before the learned Magistrate under Section 164 of Cr.P.C. The accused was apprehended and produced before the Special Court and remanded to judicial custody. PW.23 investigated the case and on obtaining the necessary documents he handed over the investigation to PW.20.
Thereafter, PW.20 laid charge sheet against the accused before the Special Court for the offences punishable under Sections 376(2)(i), 506 of IPC, Section 4 of POCSO Act, and Section 3(i)(x) of POA Act.
3. On taking cognizance of the offences, learned Special Judge framed the charges for the aforementioned offences and read over the same to the accused. However, the accused denied the charges and claimed to be tried.
4. In order to prove the charges before the Special Court, the prosecution examined 23 witnesses as PW.1 to PW.23, got marked 19 documents as Exs.P1 to P19 and 12 material objects were identified as Mos.1 to 12. However, the -7- NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 accused neither examined any witnesses on his behalf nor marked any documents.
5. After completion of the prosecution evidence, learned Special judge recorded the statement under Section 313 of Cr.P.C., and read over the same to the accused and he denied the same. The defence of the accused is one of total denial and that of false implication.
6. On assessment of the oral and documentary evidence available on record, learned Special Judge convicted the accused and sentenced him for the aforementioned offences as stated supra.
7. The said judgment of conviction and order of sentence is challenged by the accused in Crl.A.No.1702/2017 to set aside the same and to acquit him for the charges levelled against him. However, the State has also preferred Crl.A.No.497/2018 against the judgment of conviction and order of sentence praying to modify the judgment and order insofar as it relates to imposing inadequate sentence against the accused for the offence punishable under Section 376(2)(i) -8- NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 of IPC by imposing adequate and maximum sentence against him.
8. We have heard the argument of Sri D.P.Prasanna, learned counsel for the accused in Crl.A.No.1702/2017 and Sri Vijayakumar Majage, learned SPP-II for the appellant-State in Crl.A.No.497/2018 so also respondent in Crl.A.No.1702/2014.
9. Sri D.P.Prasanna, learned counsel for the appellant vehemently contended that, the judgment of conviction and order of sentence challenged under these appeals suffers from perversity and illegality since the trial Court failed to appreciate the evidence on record in right perspective. According to him, Doctors i.e., PW.11 and PW.12 have opined that, PW.1 had no traces of recent sexual intercourse; there was neither internal nor external injuries on the body of the victim. It was further stated that, the victim's hymen was intact; the FSL reports also negate the version of the prosecution and the evidence of PW.1. He further submitted that, the learned Special Judge solely relied on the evidence of PW.1 in convicting the accused for the charges leveled against him. According to the learned counsel, there is discrepancy in the complaint lodged by the -9- NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 victim as per Ex.P1, her statement recorded under section 164 of Cr.P.C. as per Ex.P4 and her evidence before the Court, wherein she has categorically admitted in the cross- examination that there was a row between her aunt-PW.2 and the accused. Further, the victim and her aunt along with the members of Mogera Sangha lodged a complaint before the Police upon discussion with the members of the Sangha. This version of PW.1 corroborates with the evidence of the mother of the victim, wherein in her cross-examination she stated that, at the behest of Mogera Sangha, the complaint-Ex.P1 was lodged. Therefore, much credibility cannot be given to Ex.P1 and the evidence of PW.1. Further, he submitted that, the prosecution utterly failed to prove the charges for the offence punishable under Section 3(2)(v) of POA Act r/w Section 511 of IPC. Since there is no such evidence available on record to show that, the accused committed the purported penetrative sexual assault on the minor victim girl knowing that she belonged to SC/ST community so also he has committed such act in order to belittle the caste of the victim. In such circumstance, the offence under Section 3(2)(v) of POA Act does not attract in the case on hand as the incident occurred in
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 the year i.e., 01.06.2014 before amendment to Section 3 of POA Act. With these submissions, he prays to allow the appeal filed by the accused by setting aside the impugned judgment of conviction and order of sentence and also to dismiss the appeal filed by the State.
10. Per contra, Sri Vijayakumar Majage, learned SPP-II contended that, the judgment of conviction and order of sentence under these appeals suffers from perversity and illegality insofar as it relates to imposing inadequate sentence against the accused for the offence punishable under Section 376(2)(i) of IPC by the learned Special Judge. The learned Special Judge erred while convicting the accused for the offence punishable under Section 376 (2)(i) r/w Section 511 of IPC and imposing a minimum sentence of 5 years for the said offence. According to the learned SPP, the evidence of the victim i.e., PW.1 unambiguously corroborates with the contents of Ex.P1 i.e., the complaint lodged by her at the earliest point of time i.e., the date of incident so also her 164 statement. Further, the evidence of PW.1 corroborates with the evidence of PW.2 and PW.3 i.e., her aunt and mother, respectively. In such circumstances, there is no reason to discard the testimony of
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 these three witnesses so also Exs.P1 and P4. He further contended that, the victim was minor at the time of incident. The prosecution placed on record the school certificate issued by PW.10-the Head Master of the School where the victim studied and the same depicts that, the victim was aged about 14 years at the time of incident. Further, the Doctor-PW.12, who examined the victim, clearly stated that, the victim was aged about 14 to 16 years at the time of incident. Further, PW.17-Sheristedar, who was incharge of Grade-II Tahsildar, issued the caste certificate of the victim stating that she belonged to Paale community as per Ex.P16. As such, it is evident that, the victim belonged to the Scheduled Caste/Scheduled Tribe Community and that she was aged about 14 years at the time of incident. In such circumstances, the evidence of PW.1-the victim has to be read along with the evidence of the Doctors i.e., PW.11 & PW.12 so also the Head Master i.e., PW.10. Learned SPP further contended that, though the Doctor has neither found injuries on the person of the victim nor has opined that there were traces of sexual act on her, that itself cannot be a sufficient ground to impose inadequate sentence on the accused. Hence, the learned
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 Special Judge erred while imposing the sentence. Accordingly, he prays to allow the appeal filed by the State in Crl.A.No.497/2018 by dismissing the appeal preferred by the accused-appellant.
11. Having heard the learned counsel for the respective parties so also on perusal of the evidence and documents placed before us, the point that arise for our consideration is:
i) Whether the judgment of conviction and order of sentence under challenge in these appeals suffers from any perversity or illegality warranting interference by this Court?
12. In order to prove the charges leveled against the accused, the prosecution predominantly relied on the evidence of PW.1-victim, PW.11 and PW.12 the Doctors who examined the victim. The prosecution also relied on the evidence of PW.2- aunt of the victim and PW.3-mother of the victim, who are the circumstantial witnesses in the case. The victim lodged the complaint as per Ex.P1 on 01.06.2014 alleging that on the said date at about 2.30 pm., at the behest of her aunt -PW.2, she visited Pollibetta tailoring shop to collect stitched clothes, however, the tailor asked her to revisit the store on Tuesday.
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 Following which she reached the bus shelter at Hanchikadu stop to board a bus. While she was waiting at the bus shelter the accused approached her by communicating that her mother's clothes were kept in his house and that the same should be collected. Accordingly, she visited his house and upon their arrival the accused shut the house door and raped her by threatening. Thereafter, she divulged the same to the neighbours; along with her aunt PW.2 she visited the Police Station and lodged a complaint. She also deposed that on the following day after the incident i.e., 02.06.2014, a Woman Police Constable accompanied her to Madikeri Government Hospital and there the Doctors examined her. Subsequently, she gave a statement before the Civil Judge and JMFC at Kodagu at Madikeri as per Ex.P4.
13. On careful perusal of the evidence of PW.1, though she has narrated the incident in her chief examination as per the contents of Exs.P1 and P4, on perusal of the cross- examination, she has categorically admitted that after the incident, she went along her aunt-PW.2 to the police station to lodge the compliant. However, PW.2 has stated in her evidence that she came alone to the police station and upon
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 her arrival at the Police Station she was acquainted with the incident. As such, there is clear contradiction in the evidence of PW.1 and PW.2. Further, PW.1 admitted in her cross- examination that, she was unaware of the tailor's name from who PW.2 informed her to collect stitched clothes. Further, as per her version, while she was sitting at the bus shelter, the accused approached her asking her to collect her mother's clothes. Except that, he did not speak anything with her, neither knowing the tailor nor the accused, her accompanying the accused to his house is relatively unbelievable. According to her, there are houses in and around the house of the accused. When she made a hue and cry at the time of incident, none of the neighbours came to her rescue. Though the prosecution examined PW.4, PW.5 and PW.6 i.e., the neighbours of the accused, they collectively turned hostile. Further, the evidence of PW.1 elicits that, on the date of incident, she visited the Police Station along with Mogera Sangha and on their behest, she lodged the compliant as per Ex.P1. Further, it is has been reiterated by PW.1 that, the accused forcibly committed an act of penetrative sexual intercourse by shutting the door of the house while she screamed for help. In such circumstances, it
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 has to be presumed that she has resisted the act of the accused.
14. On perusal of the evidence of PW.12-the Doctor, who examined the victim and issued the report as per Ex.P3, she has categorically opined that there are no such injuries found on the person of the victim and on obtaining the report from the FSL office, PW.12 has given her final opinion. As per Ex.P10, that the evidence of signs of recent sexual intercourse are absent and no injuries were noted at the time of examination.
15. A conjoint reading of the evidence of PW.1 and PW.12 coupled with Ex.P10 puts the version of PW.1 as doubtful. Albeit, she resisted the accused at the time of purported sexual act, however, she has neither sustained injuries nor abrasions. Admittedly, the doctor has opined that there are no signs of sexual intercourse and that the hymen was intact. In such circumstances, the evidence of PW.1 that the accused undressed and forcible committed an act of penetrative sexual intercourse cannot be believed. Nevertheless, PW.1, PW.2 and PW.3 have categorically stated
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 that, they went to the Police station along with the members of the Mogera Sangha and after due deliberation with the Sangha, they lodged the compliant.
16. We are aware of the fact that, the sole testimony of prosecutrix can be believed to convict the accused in a case of sexual assault. However, the Hon'ble Apex Court in the case of Rai Sandeep alisas Deepu Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 held as follows:
"22. ........ The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
17. Hence, on careful perusal of the evidence of prosecutix, PW.1 so also PW.2 and PW.3, surfaces doubt in the mind of this Court as the testimony does not pass the test to sterling quality. Hence, the same cannot be believed as a gospel of truth to convict the accused.
18. Learned SPP vehemently contended that, the prosecution proved the aspect that, the victim was a minor at the time of the alleged offence relying on the School Certificate i.e., EX.P.8 issued by PW.10-the Head Master of Pollibetta Government School, which establishes the date of birth of the
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 victim as 06.06.2001 and that she was 14 years at the time of the incident. Further, even according to the Doctor, PW.1 was aged about 14 to 16 years. In such circumstances, the victim being a minor has no reason for her to depose falsely in the Court against her reputation.
19. However, in this case, the prosecution has failed to place any such authenticated document to prove the age of the victim that she was minor at the time of incident.
20. The Hon'ble Apex Court in the judgment rendered in the case of P.Yuvaprakash V. State Rep. by Inspector of Police reported in 2023 SCC OnLine SC 846 held that the date of birth certificate from the school or the matriculation or equivalent certificate by the concerned examination board has to be firstly preferred based on the birth certificate issued by the corporation or municipal authority or a Panchayat and it is only thereafter in the absence of such documents the age is to be determined through ossification or any latest medical age determination test conducted on the orders of the concerned authority i.e. the committee or board or school. Admittedly, in this case, the prosecution has failed to produce the birth
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 certificate of the victim girl and the original transfer certificate. The Hon'ble Apex Court in the case of Vinod Katara v. State of Uttar Pradesh, reported in 2022 SCC OnLine SC 1204, in paragraphs 57 and 60, held as under:
"57. The bone ossification test (hereinafter "ossification test") is a test that determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. the most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive.
60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681:
(2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bhiar, (2008) 15 SCC 223: (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt.
21. Further, the prosecution has grossly failed to administer ossification test to determine the age of the victim. In such circumstances, the prosecution additionally failed to prove that the victim was a minor at the time of incident.
22. The other argument advanced by the learned SPP that the victim belongs to SC/ST as per the certificate issued by PW.17 as Ex.P16. We do not dispute that aspect. However, this incident is caused in the year 2014 i.e., before amendment of POA Act (Act No.1/2016 w.e.f. 26.01.2016).
23. It is clear that, in order to attract provisions of Section 3(2)(v) of the POA Act, the accused has to commit the offence by knowing that the victim belonged to Scheduled Caste or Schedule Tribe Community and such offence should be committed solely to belittle the caste of victim. There is no such
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 evidence forthcoming in this case that the accused committed an act of sexual intercourse to belittle the caste of the victim.
24. The Hon'ble Apex Court in the case of Asharfi v. State of Uttar Pradesh reported in (2018) 1 SCC (Cri) 489 held that in order to attract the un-amended provisions of Sections 3(2)(v) and 3(1)(xii) of POA Act, it is clear 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 Schedule Tribes community. In such circumstances, Section 3(2)(v) and 3(1)(xii) of the POA Act does not attract in the case on hand.
25. On overall perusal of the entire evidence on record, we are of the considered view that, the prosecution has failed to prove the offence punishable under Section 376(2)(i) r/w 511 of IPC of substantiate that the accused made an attempt to rape the victim. As discussed supra, though the doctor categorically deposed that, there are no minor injuries on the victim, which could be caused in the circumstance of committing rape on the victim, the learned Sessions Judge has misread the evidence and provisions of law and wrongly
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 concluded that the prosecution has proved the charges leveled against the accused for the offence punishable under Section 376(2)(i) r/w 511 to IPC i.e., the accused attempted to commit rape.
26. In that view of the matter, interference is required to the impugned judgment of conviction and order of sentence passed by the learned Special Judge. Consequently, the appeal filed by the accused is liable to be allowed and the appeal filed by the State deserves to be dismissed. Accordingly, we answer the point raised above in favour of the accused.
27. For the foregoing reasons, we proceed to pass the following order:
ORDER i. Criminal Appeal No.1702/2017 filed by the appellant/accused is hereby allowed.
ii. Consequently, Criminal Appeal No.497/2018 filed by the State is dismissed.
iii. The Judgment of conviction and order of sentence passed in Special Case (Atrocity and POCSO) No.22/2014 dated 06.10.2017 by the
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NC: 2024:KHC:51069-DB CRL.A No. 497 of 2018 C/W CRL.A No. 1702 of 2017 Principal Sessions Judge and Special Judge, Kodagu at Madikeri is hereby set aside.
iv. The appellant/accused is hereby acquitted of the charges leveled against him for the offences punishable under Sections 376(2)(i) & 506 of IPC, Section 4 of POCSO Act and Section 3(1)(xii) and 3(2)(v) of the POA Act r/w Section 511 of IPC.
v. The Bail Bond executed by the appellant/accused is hereby cancelled. vi. The fine amount, if any, deposited by the appellant/accused shall be refunded to him on due identification.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(RAJESH RAI K) JUDGE VM List No.: 1 Sl No.: 13