Karnataka High Court
Shri.Malappa S/O Siddappa Kadabi vs State Of Karnataka on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14860-DB
CRL.A No. 100192 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100192 OF 2020 (C)
BETWEEN:
SHRI. MALAPPA S/O. SIDDAPPA KADABI
AGE: 22 YEARS, OCC: DRIVER,
R/O: TADASALUR, TAL: SAVADATTI,
DISTRICT: BELAGAVI.
...APPELLANT
(BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR.
...RESPONDENT
KM
(BY SRI.M.B.GUNDWADE, ADDL. STATE PUBLIC PROSECUTOR)
SOMASHEKAR
Digitally signed by K M
SOMASHEKAR
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.
Date: 2023.12.21 11:59:22
+0530
PRAYED THAT, THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE PASSED BY THE SPECIAL COURT (POCSO) AND
SC/ST (POA) ACT AND III ADDL. DISTRICT AND SESSIONS
COURT, BELAGAVI IN SC NO.204/2016 FOR THE OFFENCES
U/S 342, 366(A), 376(f)(n) 506 OF IPC AND U/S 4 OF POCSO
ACT, MAY KIDNLY BE SET ASIDE AND APPELLANT MAY KINDLY
BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FURTJER
HEARING, THIS DAY, SANDESH, J., DELIVERED THE
FOLLOWING:
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NC: 2023:KHC-D:14860-DB
CRL.A No. 100192 of 2020
JUDGMENT
Heard the appellant's counsel and also the learned Additional State Public Prosecutor for the respondent- State.
2. The factual matrix of the case of the prosecution is that on the night of 11.04.2016 the complainant and inmates had taken food and the complainant-P.W.1 left the house, and at around 11.00 p.m., somebody knocked the door and, at that time, P.W.2 and 3, who were in the house, on opening the door found the accused standing at the door steps. The accused came inside and pulled the victim-P.W.2 and by holding her hand tried to take her. At that time, though both P.W.2 and P.W.3 resisted him, he took P.W.2 by pushing P.W.3 inside the house saying that he will marry her. When P.W.3 was crying, the appellant pushed her inside and locked the door, and took P.W.2 with him and subjected her for sexual act forcibly. It is also the case of the prosecution that the complainant-father came and -3- NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 enquired with P.W.3 and she revealed the incident. As the accused and the victim were not found in spite of search made, a complaint was lodged on 13.04.2016. The police have registered a case in Crime No.112/2016 for the offences punishable under Sections 342, 366 and 506 of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act. The accused was arrested on 14.04.2016.
3. The Investigating Officer conducted investigation and submitted charge sheet on 25.06.2016. The accused was secured before the Trial Court and he did not plead guilty and claimed to be tried. Hence, prosecution examined 21 witnesses as P.W.1 to P.W.21 and got marked documents as Exs.P.1 to P.30. The accused was subjected to recording of statement under Section 313 of the Code of Criminal Procedure, 1973. After incriminating material were put against him, he did not chose to lead any defence evidence.
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4. The Trial Court having considered both oral and documentary evidence available on record convicted the accused for the offences punishable under Sections 342, 366A, 376 (f) and (n), 506 of IPC and Section 4 of the POCSO Act. The Trial Court imposed a major punishment of life imprisonment for the offences punishable under Sections 376(f) and (n) of IPC and other major punishment in respect of offence punishable under Section 366A of IPC. The Trial Court also invoked Section 428 of Cr.P.C. to set-off the period of sentence undergone, and ordered that the punishment imposed shall run concurrently.
5. Being aggrieved by the judgment of conviction and order of sentence in respect of the offences which have been invoked against the appellant-accused, the present appeal is filed.
6. The learned counsel appearing for the appellant/accused would vehemently contend that this appellant was arrested on 14.04.2016 and is in custody for -5- NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 7 years and 8 months. He vehemently contends that the doctor, who has been examined as P.W.8 and has spoken to about the documents Exs.P.12 and P.14, and he also categorically admits that Dr. Gousia had examined the victim, but the said Dr.Gousia has not been examined before the Trial Court. He would also vehemently submit that the report of the Lady doctor is not produced and the same fatal to the case of the prosecution. The counsel also submits that as per medical evidence no external injuries are found. The counsel would vehemently contend that the alleged incident had taken place on 11.04.2016 and the victim girl was subjected to medical examination on 14.04.2016.
7. Learned counsel for the accused relying upon the document at Ex.P.2, the statement of the victim girl recorded under Section 164 before the Magistrate, submits that the victim girl has stated that, when the appellant called upon her to his house, she went there and there he committed sexual act, and submits that the offence under -6- NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 Section 366A is not attracted as ingredients of Section 366A has not been proved by the prosecution. Counsel would also submit that P.W.2, the victim girl, is also married in the year 2020 and in order to prove the said fact, today, the learned counsel has filed a memo, along with a marriage invitation card before this Court. The counsel would also vehemently contend that when the medical evidence does not support the case of the prosecution and also evidence of witnesses who have been examined before the Trial Court does not inspire the confidence of the Court with regard the victim being subjected to sexual act, the Trial Court ought not have convicted the accused for all the offences and the same requires interference.
8. Learned counsel for the accused would also vehemently contend that the evidence before the Court also does not support the case that the victim girl-P.W.2 was a minor aged 15 years 10 months as on the date of the incident; the medical certificate states that the victim -7- NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 girl could be around 16 to 18 years; there is no consistent evidence before the Court that she is a minor. Therefore, learned counsel for the accused submits that the finding of the Trial Court with regard to age of the victim is against the records. Added to above, it is on record that bride grooms were interviewing P.W.2 for marriage and the same is also admitted by P.W.3 and hence, one cannot rule out that P.W.2 could have completed the age of 18 years. The counsel also vehemently submits that material is not sufficient that she is a minor and she was subjected to sexual act and the Trial Court ought to have given the benefit in favour of the accused and evidence of witnesses P.Ws.1, 3 P.W.2 and the medical evidence is also not sufficient to come to said finding and the Trial Court committed an error in convicting the accused and hence the accused entitled for acquittal.
9. Per contra, learned Additional State Public Prosecutor appearing for the State would submit that the evidence of P.W.2 is consistent with regard to she being -8- NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 subjected to sexual act by the appellant and apart from the evidence of P.W.1 and P.W.2, the evidence of P.W.3 is very clear that she was along with P.W.2 when the accused took her (P.W.2) forcibly from the house of P.W.3 and the same is also revealed to the father and accordingly, the father had lodged a complaint in terms of Ex.P.1. The learned counsel would also submit that the victim has not revealed anything to P.W.1 about the statement made before the learned Magistrate while recording her statement under Section 164 and hence in Ex.P.1, the same cannot be expected, when P.W.1 was not having any knowledge about the same. The counsel would also submits that the very contention of the counsel for the accused cannot be accepted and there is no any improvement and the same is stated in terms of what P.W.3 has revealed, the same has been stated by the complainant-P.W.1 before the police in the complaint in terms of Ex.P.1-complaint. Learned Addl. SPP would also contend that the evidence of P.W.8 is very clear that the victim was subjected to sexual act and also the FSL report -9- NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 is clear that M.Os.3, 4 and 7 are stained with seminal stains and the report is given in terms of Ex.P.13. The Trial Court has taken note of the evidence of the victim girl-P.W.2, and also the evidence of P.W.1 and P.W.3, the father and sister of the victim girl, who have spoken to about the accused coming to house and forcibly taking the victim girl on the previous night at 11.00 p.m. and subjecting her to sexual act. The Trial Court has also taken note of the evidence of other witnesses who have also spoken about the arrest of the victim and also the accused in the house of relatives of the accused and being brought back. The Trial Court has also taken note of recording of voluntary statement of the accused and seizure of clothes evident from the FSL report and the same were found with seminal stains and on the FSL report is also very clear with regard to the said aspect. The Trial Court considering all these material available on record and the evidence of P.W.8-doctor medical evidence is also clear that she was subjected to sexual act and hymen was not intact and hence the trial Court has not committed any error in
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 coming to such a conclusion. The counsel also brought to the notice Ex.P.14 wherein the report of the medical examination of victim is very clear that hymen was absent old tears are seen, though no evidence of recent sexual intercourse , but victim is used to an act like that of sexual intercourse. The seminal stains found on clothes of the victim and belongs to the accused clearly discloses that she was subjected to sexual act by the accused and the same cannot be ruled out and these are the material taken note of by the Trial Court particularly Ex.P.13 and Ex.P.14. Ex.P.13 is very clear that presence of seminal stains were detected in articles 3, 4 and 7 i.e., a banian, underwear and also the blouse. The Trial Court not committed any error in appreciating both the oral and documentary evidence and hence it does not require any interference.
10. Having heard the appellant's counsel and also the learned Additional State Public Prosecutor appearing for the State, on perusal of the material available on record and also the considering the grounds urged in the
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 appeal, the point that would arise for consideration of this Court is,
i) Whether the Trial Court committed any error in convicting the accused for all the offences i.e., under Sections 342, 366A, 376 (f) and (n) of IPC and Section 4 of the POCSO Act and whether it requires any interference of this Court?
ii) What order? Point No. i) and ii)
11. Having heard the counsel for appellant and the learned Additional SPP and also considering the material on record, this Court has to reanalyze both oral and documentary evidence keeping in mind the contentions urged in the appeal and also the oral submissions made by the leaned counsel for the appellant and the learned Additional SPP for State. The prosecution mainly relies upon the evidence of PW1, PW2 and PW3. Out of them PW1 is the father of the victim. He lodged the complaint as per Ex.P1 based on the information given by PW3, who is another daughter. The evidence of PW3 is also similar to
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 the evidence of PW1 apart from the accused came and took the victim forcibly. Based on the statement of PW3 only, PW1 lodged the complaint with the police and case has been registered.
12. The Court has considered the evidence of the victim i.e. PW2. It is her evidence that, while giving her evidence, her age was 16 years. The accused was her neighbour and he was making attempts to talk to her from last 5-6 months prior to the incident. He used to make signals. In this regard, her parents also scolded the accused and given instructions to the victim not to talk to him. On 11.04.2016, her father went to graze sheep. The PW2-victim and her sister-PW3 were there in the house. At that time, someone came and knocked the door and on opening the door, they found the accused. When they questioned him, he held the hand of the victim. At that time, the victim and her sister started screaming at the spot. It is her evidence that the accused pushed her sister- PW3 inside the house and took PW2-Victim along with him
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 by locking the door from outside. The accused took the victim to his house and subjected her to sexual assault. PW3 witnessed the incident of accused taking the victim forcibly. He took her in a tanker through Lokapur to Bagalkot and kept her in his relatives house. That, on 14.04.2016 when they were in Chinchanur, police came there and apprehended both of them and took them to Murugod Police Station and victim revealed the same to the police and also to her parents. It is also her evidence that on 14.04.2016 she was taken to medical examination and then she was taken to Magistrate Court on 21.04.2016 and there her statement was recorded as per Ex.P2 under Section 164 of Cr.P.C. It is also her evidence that mahazar was drawn as per Ex.P3, photo was taken as per Ex.P4 and another panchanama was drawn as per Ex.P5 and one more photo was taken as per Ex.P6.
13. The other panchanama is Ex.P7 and photo is marked as Ex.P8. It is also her evidence that Chappal and towel belonging to the accused were also seized and she
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 identified the same as M.O.1 and 2. It is also her evidence that while examining her in the hospital, her hairs and nails were also seized. P.W.2 identified her choodidar top as M.O.3, pant as M.O.4, blouse as M.O.5 and her underwear as M.O.6, which were seized by the police. P.W.2 also identified the tanker in which she was taken by the accused. This witness was subjected to cross- examination and in the cross-examination, she deposed that the incident took place in the month of April and with regard to her age is concerned, she stated that except school documents, no other documents are available. She stated that the original date of birth is mentioned in her school records as 11.06.2000. It is suggested to her that, she was born in the year 1997 but she has denied the same. It was further suggested to her that at the time of alleged incident, she was aged about 19 years and said suggestion was also denied. It is also elicited in the cross- examination that she made statement before the Magistrate that she was subjected to sexual assault three months prior to the incident. It is suggested that both
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 accused and the victim loving each other prior to 5-6 months of the incident but the same is denied. She claims that the accused held her hand and forced to accompany him and she resisted the same. Both she and her sister were screaming at the spot but the neighbours did not come to their house though they made a sound of screaming. It is suggested that she voluntarily went along with the accused to Bagalkote but the same was denied. It is also her admission that, when both of them were brought from Chinchanur and her parents came to police station and when she was told to join her parents, she did not accompany with her parents as the accused made her to afraid of her parents. It is suggested that M.O.1 and 2 are not belonging to the accused and the said suggestion was denied. It is suggested that when he took her to Bagalkote, it was around 1.00 O'clock. This Court has already taken note of evidence of PW1 and PW3 and their evidence is similar.
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14. PW4 is the pancha witness and he speaks with regard to drawing of mahazars as per Ex.P3 and Ex.P4.
15. The other witness is PW5, who is a pancha witness to the seizure of clothes of the accused as per Ex.P9.
16. PW6 and PW7 are the panchas to Ex.P11- seizure panchanama. Except identifying their signatures, these witnesses have completely turned hostile to the case of the prosecution.
17. PW8 is the doctor. In his evidence, he has stated that when he examined the victim, her weight was 45 kg and height was 152 cm. Based on X-ray, he opined her age about 16 to 18 years and as per dental examination, her age appears to be about 15 to 17 years. He found no injuries on her person. It is his evidence that a lady doctor has examined the victim and given report that hymen was absent. It is also his evidence that they received the report as per Ex.P12 and Ex.P13. Semen
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 stains were found in blouse, underwear and banian. In terms of Ex.P14 it is reported that there is no recent sexual act. This witness was subjected to cross- examination and in the cross-examination he admits that in terms of the X-ray report, the age of the victim was assessed at 16 to 18 years and the X-ray expert has to depose with regard to the same and based on the X-ray report only he has given his evidence. He admits that in the hospital records, it is mentioned that the victim voluntarily went along with the accused to Bagalkot and the said statement is also recorded based on the statement given by her. It is also admitted that she was examined by a lady doctor and the lady doctor Smt.Gousiya has examined her but no report and documents are available in the records produced before this Court. He admits that in Ex.P12 the same is not mentioned. In his evidence, this witness admits that he has examined PW2.
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18. The other witness is PW9, who is the school headmaster of Tadasalur. He has been examined before the Trial Court and in his evidence, Ex.P15, a document with regard to date of birth of the victim was marked, wherein the date of birth of the victim is mentioned as 11.06.2000. As per Ex.P16, the date of birth of the accused is shown as 01.07.1997. This witness was subjected to cross-examination and he admits that there was no proof given with regard to the date of birth of the victim as 11.06.2000 and he admits that normally in rural areas, children will get admission in school in the month of June. It is also admitted that the father of the victim girl is an illiterate.
19. PW10 is the person who apprehended the accused and victim and prepared the document as per Ex.P17.
20. PW11 is the other police official, who took the victim girl for medical examination and given report as per Ex.P18.
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21. The other witness PW12 is the scribe of Ex.P1- complaint and he has identified his signature on the complaint.
22. PW13 has turned hostile to the case of the prosecution.
23. PW14 is the witness, who apprehended the victim and accused and given report as per Ex.P20.
24. The other witness i.e. PW15 is with regard to the seizure of the tanker in which the accused took the victim girl. He is the owner of the tanker. PW16 is the doctor who conducted medical examination on the accused and given report that he is capable of doing sexual act.
25. PW17 is WHC, who handed over the seized articles to FSL.
26. PW18 is the CPI in whose presence the accused was produced and he recorded the voluntary statement of the accused. He did the formalities of sending the victim
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 girl and the accused to the hospital and conducted the investigation.
27. The other witness is PW19, who took the FIR to the Court.
28. PW20 is the ASI, who received the complaint in terms of Ex.P1.
29. The other witness is FSL Scientific Officer i.e. PW21, who conducted the examination on the articles referred to him. According to him, articles 3, 4 and 7 were found with stains of Semen and the other articles were not found any stains of semen. This witness was subjected to cross-examination. In his cross-examination, he admits that he did not mention in which portion, the semen stains were found in article No.4. He also admits that in article No.6 he did not mention anything about semen stains.
30. Having given our anxious consideration to both oral and documentary evidence available on record, this Court has to first look into the age of the victim. According
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 to school records, her date of birth is mentioned as 11.06.2000 and school certificate is also secured as per Ex.P16. The evidence of PW9-headmaster is also very clear that at the time of admission of the victim girl to the school, the date of birth was given as 11.06.2000. Apart from that, the documentary evidence available on record before the Court is very clear that as per the X-ray report, she was below the age of 16 to 18 years at the time of conducting medical examination. The documentary evidence with regard to the age of the accused is marked as per Ex.P16 in which his birth date is mentioned as 01.07.1997. No doubt in the cross-examination of PW9 it is elicited that the father of the victim girl is illiterate and no document was produced at the time of admission regarding date of birth of the victim.
31. Having considered the evidence of PW2, while giving her evidence before the Court, her age is mentioned as 16 years and PW3 has also given her age as 15 years, who is sister of PW2. Apart from that, from the document
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 marked at Ex.P15 it is clear that the date of birth of the victim is mentioned as 11.06.2000. From the evidence of the doctor-PW8 in terms of X-ray report and on dental examination report, it is clear that the victim was below 18 years. When all these materials are available and nothing is elicited from the mouth of these witnesses to disbelieve the case of the prosecution that she is a minor and no contra evidence is placed before the Court and hence, material is very clear that the victim girl was 15 years 10 months as on the date of the alleged incident of committing sexual act against her. The Trial Court also taken into consideration of all the aspects and the very contention of the appellant-counsel that the prosecution has not proved the age of the victim girl cannot be accepted.
32. Now coming to the aspect of accused subjecting the victim girl for sexual act is concerned, it is the case of the prosecution that the accused came and took the victim girl on 11.04.2016 at 11.00 pm in the night when PW3
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 was there along with victim girl. It is also important to note that when the victim was missing and on the very next day when her father came to the house, PW3 revealed accused coming to the house in the night at 11.00 p.m. and taking the victim girl with him by pushing PW3 inside the house and locking the house from the outside. Complaint was also given on the very next day of the incident as per Ex.P1.
33. It is also the contention of the appellant's counsel that in the complaint, Ex.P1, nothing is stated with regard to earlier sexual act, which has been revealed by the victim girl while recording her statement under Section 164 of Cr.P.C. before the learned Magistrate. No doubt in the statement recorded under Section 164 of Cr.P.C., before the learned magistrate, which is marked as per Ex.P2, the victim girl revealed that even prior to the said incident, the accused took her and subjected her for sexual act forcibly against her wish but the same cannot be expected in Ex.P1-complaint. It is not the case of the
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 defence that earlier also there was sexual act and the same was within the knowledge of complainant-PW1. PW1 had lodged the complaint as per the say of PW3 i.e. other minor girl, who was in the house at the time when the accused took the victim girl in the late night at 11.00 p.m. Hence, the Court also cannot expect the same in the complaint-Ex.P1 as contended by the counsel for the appellant-accused. There is no force in the contention of the counsel for appellant.
34. In order to invoke section 366-A of IPC i.e. kidnapping of a minor girl for sexual act is concerned, this Court has come to the conclusion that the victim was minor at the time of the incident and the evidence of PW2 and PW3 is also very clear that the accused came and took the victim girl forcibly with him by holding her hand and pushing PW3 inside the house by locking the door of the house from outside. The victim was unable to inform the same and only when her father came on the next day morning PW3 revealed the same. When such evidence is
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 available, the very contention of the learned counsel for the appellant-accused that there is no material to invoke section 342 and 366-A of IPC cannot be accepted since the minor girl was taken and was confined in the house of relatives of the accused. The accused by taking the victim girl in a tanker forcibly, though he was knowing that the victim girl was minor, the very contention of the counsel for the accused that section 366A of IPC does not attract cannot be accepted. Section 366A of IPC is very clear that procuration of a minor girl, whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
35. The evidence of PW2 and PW3 is very clear that the accused forcibly took PW2-victim by holding her hand
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 and dragging. No doubt in the cross-examination it is suggested that she went along with him voluntarily but the evidence of the doctor-PW8 is very clear that on the say of the victim only they mentioned the same in the records that she went voluntarily. But the evidence of PW3 is very clear that the accused having taken the victim girl by pushing her inside the house and locking it from outside, nothing is elicited from the mouth of PW3 to disbelieve her evidence. When such being the case, the very contention of the counsel for accused that it does not attract the offence under Sections 342 and 366-A of IPC cannot be accepted.
36. Now coming to the aspect of accused subjecting the victim girl to sexual act, PW2 has clearly stated that the accused took her and subjected her to sexual act. It is her evidence that she resisted the same but the accused forcibly took her and subjected to sexual act. No doubt in the cross-examination of PW2 it is elicited that in the earlier statement of PW2 recorded under Section 164 of
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 Cr.P.C. before the Magistrate, she has stated that earlier also she was subjected to sexual act but it is a fact that accused on 11.04.2006 came and took the victim girl and subjected her to sexual act. No doubt the doctor who examined the victim i.e. Smt.Gousiya has not been examined before the Trial Court, but the evidence of PW8- Doctor who gave evidence based on the material available on record is clear. It is important to note that Ex.P14 is given after the seizure of articles of the accused and also the victim. As per Ex.P14, it is very clear that the age of the victim was in between 16 to 18 years, as noted. The evidence of recent sexual intercourse is not found but hymen was absent and there were old tears seen. The victim was used to the act that of sexual intercourse. The report is also very clear that semen stains found on the clothes of the victim and accused were also confirmed by DNA analysis and also the attempt of sexual assault by the accused cannot be ruled out. This is the documentary evidence marked as per Ex.P14. It is important to note that Ex.P13 is the document of FSL report and as per the
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 Ex.P13 report, article No.3-banian, article No.4-underwear and blouse belonging to the victim were found with semen stains. The presence of semen stains were detected in articles 3, 4 and 7 and these clothes were seized and preserved for examination and the witnesses also spoken with regard to the seizure of banian, underwear and blouse. Articles 3 and 4 belong to the accused and article No.7 belongs to the victim. The FSL report is also very clear that semen stains are found and also it is not in dispute that the accused and the victim girl were apprehended and they were subjected to medical examination and seizure was also made in the presence of panchas. The seizure witnesses also have supported the case of the prosecution. When such material is available before the Court and when the hymen was also not intact and even in the absence of examination of the doctor, who conducted medical examination of the victim, the same not goes to the very root of the case and the documentary evidence available on record is very clear that both of them had sexual intercourse, semen stains were found
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 and all these materials support the case of the prosecution. The prosecutrix, who has been examined as PW2 and also the evidence of the doctor-PW8 and also the doctor who also examined the accused, it is opined that the accused is able to have sexual intercourse. All these materials disclose that the accused subjected the victim to sexual act and the victim was aged about 15 years 10 months at the time of subjecting her for sexual act. No doubt in the evidence of PW2, she has stated with regard to earlier incident also but the prosecution's case is that she was subjected to sexual act on 11.04.2006 and the same is spoken to by PW3 as well as PW2-victim girl. Even in a case of subjecting her for sexual act, the prosecutrix evidence alone is sufficient. The certificate-Ex.P29 is very clear that semen stains were found on banian, underwear and also the blouse. When such material is available before the Court, the very contention of the counsel for the appellant that in the absence of evidence of the doctor, who conducted the medical examination of the victim, the Court cannot convict the accused cannot be
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 accepted. The evidence of the prosecutrix, the evidence of medical witnesses as well as other documentary evidence i.e. Ex.P13 and Ex.P14 is sufficient to come to the conclusion that the victim girl was subjected for sexual act. Hence, we do not find any error in coming to the conclusion that the accused has committed the sexual assault against a minor victim girl by taking her forcibly and confining her in his house and proved the ingredients of Sections 342 & 366A of IPC.
37. Now coming to the aspect of sentence is concerned, looking to the evidence of PW2, no doubt the prosecution has invoked section 376(f) and 376(n) of IPC. The very victim herself stated in her evidence that, when both of them were apprehended, accused told her to say that they are relatives and hence, she has deposed before the Court that he is her relative, but the prosecution invoked section 376(f) of IPC and no such material is placed before the Court to invoke section 376(f) of IPC. Section 376(f) of IPC can be invoked only in a case of
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 kidnap by accused being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman and thus, the ingredients do not attract invoking of Section 376(f) of IPC.
38. Section 376(n) of IPC is very clear that whoever commits rape repeatedly on the same woman, shall be punished 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 remainder of that person's natural life, and shall also be liable to fine.
39. Having reassessed the evidence available on record and taking note of the material available on record, particularly the statement made by PW2-victim before the learned Magistrate as per Ex.P2 and also subsequent evidence and in cross-examination from the defence, it is elicited that she made statement that earlier both of them had sexual intercourse. No doubt she is minor and consent
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 of minor doesn't arise in view of section 2(d) of the POCSO Act. But the fact is that, she made a statement before the learned Magistrate as per Ex.P2 that earlier also accused committed sexual act on her and also it is clear that subsequently on 11.04.2016 the accused came and took her forcibly and had sexual intercourse. When such being the case, Section 376(n) of the IPC attracts. However, taking into note the evidence of PW2, the punishment of life imprisonment for the offence punishable under Section 376(n) of IPC and also under Section 4 of the POCSO Act and no doubt there is penetrative sexual act and having considered the conduct of PW2 as well as the manner in which the incident was taken place, the sentence of life imprisonment is on higher side. The Trial Court has failed to take note of the same and lost sight of the evidence of PW2 and the manner in which the incident was taken place. P.W.2 accompanied with the accused to Bagalakote in a tanker and though she gave an explanation for having accompanied him, having taken note of all these factors into consideration and since the victim girl is also married
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 in the year 2020 and now residing along with her husband and also the accused was aged about 22 years at the time of the alleged incident, it is appropriate to reduce the sentence from life imprisonment to ten years and same would be just and reasonable to meet the ends of justice. Having considered the evidence on record and considering the gravity of the offence and the same would commensurate with the gravity of the offence and meet the ends of justice, the sentence imposed for the offence under Section 376(n) is modified to ten years instead of life imprisonment.
40. The sentence of ten years imprisonment imposed by the Trial Court for the offence under Section 366(a) also appears to be on higher side and same is reduced to five years. The fine imposed by the Trial Court is unaltered in respect of said offence and the compensation awarded by the Trial Court is also unaltered.
41. The prosecution has also invoked section 506 of IPC. Having considered the evidence of PW2, nothing was
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 spoken about causing threat to her life except dragging her forcibly by pushing PW3 inside the house and locking the door from outside. The trail Court has failed to take note of the ingredients of section 506 of IPC and committed an error in convicting the accused for the offence punishable under section 506 of IPC and same requires interference. The accused is required to be acquitted of the offence under section 506 of IPC. Hence we answer the above point partly in affirmative and pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment conviction and sentence imposed against the accused for the offence punishable under section 506 of IPC is hereby set aside and fine amount, if any, deposited by the accused is ordered to be refunded to him digitally.
iii) However, the judgment of conviction and order on sentence imposed by the Trial
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NC: 2023:KHC-D:14860-DB CRL.A No. 100192 of 2020 Court against the accused for the offence punishable under Section 342 of IPC is confirmed.
iv) The sentence imposed against the accused for the offence punishable under Section 366(a) is reduced to five years. Regarding fine amount it is unaltered.
v) The conviction and sentence imposed by the Trial Court for the offence punishable under Section 376(f) is hereby set aside and fine amount, if any, deposited by the accused is ordered to be refunded to him digitally if separate fine is paid.
vi) The sentence imposed against the accused for the offence punishable under Section 376(n) of IPC and Section 4 of the POCSO Act is reduced to ten years instead of life imprisonment. The imposing of fine is unaltered.
vii) The above said sentence shall run
concurrently.
viii) The accused is entitled for set off under Section 428 of Cr.P.C.
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NC: 2023:KHC-D:14860-DB
CRL.A No. 100192 of 2020
ix) Registry is directed to issue modified
conviction warrant in view of the
modification of the judgment of conviction and sentence.
x) Send back the Trial Court records along with copy of this judgment to the Trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE KMS, YAN List No.: 1 Sl No.: 21