Karnataka High Court
Gaddi Mallappa S/O Kotrabasappa vs The State Of Karnataka on 5 April, 2022
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.100369/2019
BETWEEN:
GADDI MALLAPPA
S/O. KOTRABASAPPA
AGE:59 YEARS
OCC: HOTEL EMPLOYEE
R/O.SOGI VILLAGE,
AT POST:HADAGALI TALUK,
TAL & DIST:BALLARI DISTRICT
...APPELLANT
(BY SHRI. PRASHANT S.KADADEVAR, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
THE DEPUTY SUPERINTENDENT OF POLICE
HUVINAHADAGALI, SUB DIVISION
HUVINAHADAGALI, BALLARI DISTRICT
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH
DHARWAD
...RESPONDENT
(BY SMT. GIRIJA HIREMATH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
15.12.2018 AND 18.12.2018 PASSED BY THE I-ADDL. DIST AND
SESSIONS JUDGE, BALLARI, IN SPL. CASE NO.02/2016 FOR THE
OFFENCE P/U/S 376(2)(F) OF IPC R/W SEC.4 OF POCSO ACT,
2012.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT PASSED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the judgment of conviction and order of sentence passed by the 1st Additional District and Sessions Judge, Ballari, in Special case No.2/2016 dated 15.12.2018, wherein the appellant/accused is convicted for the offence punishable under section 376(2)(F) of Indian Penal Code, 1860 (for short hereinafter referred to as 'IPC') and also for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short hereinafter referred to as 'POCSO Act'). The appellant/accused was acquitted for the offence under Section 506 of IPC and Sections 3(1)(xi) and 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter referred to as 'SC/ST (POA) Act') and also for the offence under Section 6 of POCSO Act.
2. The appellant/accused was sentenced to undergo rigorous imprisonment for a period of 07 years and ordered to pay a fine of Rs.50,000/- and in default to pay fine amount, he shall undergo simple imprisonment for a period of one year for the offence under Section 376(2)(f) of IPC r/w 3 Section 4 of POCSO Act. The District Legal Services Authority, Ballari is directed to disburse the compensation amount of Rs.50,000/- to the victim under the Victim Compensation Act, as per the G.O.NO.HD 22 PCB 2018 Dt. 21.6.2018.
3. The appellant was the accused before the trial court.
4. It is alleged that on 18.10.2015 at about 07:30 p.m. when the victim/minor, daughter of complainant who belongs to Korachara caste which comes under the SC/ST Act, was waiting for her mother near Yallamma Temple situated near her house at Sogi Village, at that time, appellant/accused lured the victim stating that he will give chocolate, then took her to his hotel, gave Rs.20/- and asked her to bring brandy bottle. The appellant/accused consumed brandy, removed the clothes of victim, when she tried to escape from him, he dragged her, made her to fall on the ground and committed penetrative sexual assault on her. When victim was shouting, the complainant came there, rescued her daughter/victim. The appellant/accused gave life threat to the complainant and victim stating that if she files any complaint, he will take away their life. Accordingly, the 4 complainant gave complaint to the concerned police which came to be registered in Cr.No.58/2015 of Itagi police station for the offence under Section 376 IPC and also for the other offence. The investigating officer after investigation, filed the charge sheet against the accused for the offence under Section 376(2)(f) IPC and also for the offence under the provisions of SC/ST (POA) Act. The appellant/accused was arrested and he is in custody.
5. Thereafter, the learned Sessions Judge framed the charge against the accused for the offences stated above. The prosecution in all examined eighteen witnesses as PWs.1 to 18, got marked twenty documents as per Exs.P1 to P20 and got identified material documents as per M.Os.1 to 13. Thereafter, the statement of appellant/accused as required under Section 313(1)(b) Cr.P.C. is recorded. The accused denied the circumstances appearing against him in the evidence of prosecution witnesses, the accused has not chosen to lead any defence evidence and after hearing the arguments, the learned Sessions Judge has passed the impugned judgment of conviction and order of sentence, which is now assailed by the appellant/accused in this appeal. 5
6. Heard Sri. Prashant S.Kadadevar, learned counsel for the appellant and Smt. Girija Hiremath, learned HCGP for respondent/State.
7. Learned counsel for the appellant/accused argued that the impugned judgment of conviction and order of sentence is illegal and not based on evidence on record. The trial court has not properly appreciated the report of scientific officer and the evidence of Dr.Kamalalmma/PW.14. It is alleged that false allegations are made against the appellant/accused. There are material contradictions in the evidence of prosecution witnesses. The theory of prosecution that the appellant/accused asked the victim girl to bring the brandy bottle, cannot be believed at all. Independent witnesses are not examined. Admittedly, when other children were playing at the place of offence, why the mother of the victim only came to rescue her daughter and even the complainant can scream and seek for anybody's help. PW.10
- Chilagodu Basavaraj has turned hostile to the case of the prosecution, wherein he has denied that victim came to his shop and purchased the brandy bottle. Therefore, the trial 6 court has not appreciated the evidence of prosecution witnesses in proper perspective. The sentence imposed on the appellant/accused is exorbitant. Therefore, learned counsel prayed to set aside the judgment of conviction and order of sentence.
8. Learned HCGP argued that the trial court has appreciated the evidence of prosecution witnesses in proper perspective. The evidence of medical officer and FSL report prove the charge against the appellant/accused. There are no reasons assigned to disbelieve the statement of witnesses examined on behalf of the prosecution. There are minor contradictions and inconsistencies in the evidence of the prosecution witnesses. But the same are bound to occur, as the witnesses are giving evidence after lapse of a time. There are no material contradictions and inconsistencies found in the evidence of prosecution witnesses. On the other hand, there is corroboration in the evidence of each prosecution witnesses with regard to the charge leveled against the appellant/accused. Hence, she prayed to dismiss the appeal.
9. I have perused the judgment of the trial court and other material produced before the court. 7
10. The learned Sessions Judge has raised five points for consideration. The learned Sessions Judge found that the victim is aged about 08 years. Therefore, the ingredients of the provisions of POCSO Act are attracted. The Sessions Judge considering the evidence of PW.1/mother of the victim, PW.2 - victim, PW.12/Head Master, held that victim was studying and she is aged about 08 years as per Ex.P15 - School Certificates of the victim issued by the school. It is evident from Ex.P15 that the date of birth of victim is 05.09.2006. It is observed by learned Sessions Judge that the evidence of PW.1/mother of the victim is reliable, as she found the victim weeping near hotel of appellant/accused and further, she saw the incident and rescued her daughter/PW.2. Hence, she lodged the complaint. The learned Sessions Judge also considered the evidence of PW.2 - victim, who has also stated about the incident. PW.2 also admitted that she has given statement under Section 164(3) of Cr.P.C. as per Ex.P5. The Sessions Judge has also stated both PWs.3 and 4, have supported the prosecution regarding drawing of spot panchanama as per Ex.P4 respectively. Though other witnesses have turned hostile, the learned Sessions Judge 8 has relied on the evidence of PW.13 -Dr.B.Shivakumar and PW.14 - Dr.Kamalamma who have clearly stated that when PW.2/victim was examined, they found injuries on her. The learned Sessions Judge has also considered the evidence of investigating officer. Further, the learned Sessions Judge has relied on the decisions rendered by the Hon'ble Supreme Court and this court and held that the prosecution has proved its case beyond all reasonable doubt and convicted the appellant/accused for the above stated offences.
11. I have perused the evidence on record and re-appreciated the same.
12. It is evident that PW.1- Smt. B.Kariyamma is the mother of PW.2/victim. PW-1 has stated that the victim is her daughter and victim is studying in 3rd standard. Prior to one year from the date of the incident, she went for work to a land at Talakl village and PW.2/victim who is her daughter was in the house. PW.1 returned to the house around 07:00 p.m. But she does not find her daughter in the house, then she started searching her daughter. Subsequently, she has waited upto 08:00 p.m. for return of her daughter to the house. Then again she went in search of her. Thereafter, she 9 heard the weeping sound of her daughter/PW.2 from the hotel of appellant/accused and she found that appellant/accused was sleeping on her daughter/PW.2 and PW.1 pushed the accused and procured her daughter. The appellant/accused threatened PW.1 that if she disclose the incident to anybody, he will take away their life. PW.2 informed her mother/PW.1 that the accused lured her in the guise of giving chocolate and committed sexual intercourse on her. PW.1 found that there is swelling in private part of PW.2/victim girl and she has sustained some injuries. Then PW.1 lodged the complaint. PW.1 also supported the spot panchanama/Ex.P4. It is suggested by the learned counsel for the appellant/accused during cross-examination to PW.1 that she has got financial transaction with the appellant/accused and she used to take alcohol with the appellant/accused, but she denied the said suggestion. It is suggested in the cross-examination that in order to get compensation from the Government, in this type of cases, she has filed the false case against the appellant/accused, but she has denied said suggestion. Except these 10 suggestions, there is nothing helpful to the appellant/accused is elicited from the cross-examination of PW.1.
13. PW.2 - victim girl has stated that she is aged about 08 years. The court cannot simply believe the evidence of child witness, as there is possibility of tutoring the child witness by others. As per section 118 of the Indian Evidence Act, 1872, all persons shall be competent of testify unless the Court considers that they are prevented from understanding questions put to them or from giving rational answers to those questions, by tender years, old age, disease, or any other cause of the same kind. As per the said provision, the courts to verify whether the witness is competent to testify. It appears the learned sessions judge has ascertained competency of PW.2/victim girl and her evidence was recorded in the year 2017. The incident occurred in the year 2015. As on the date of giving evidence, PW.2 is aged around 10 years. PW.2 stated that she was playing with her friends near Yallamma temple. The appellant was sitting there and all the friends of PW.2/victim went away. It was about 08:00 p.m. the appellant/accused took PW.2 to a room and asked her to bring brandy bottle, then he did not leave her to go 11 home, the appellant/accused slept on her and he closed her mouth with his hands, then her mother/PW.1 came and pushed the accused and procured her. PW.2 also stated that because of the act of the accused, she got a pain in her private part. Then it was informed to the villager and on the next day, the appellant/accused left the shop. Then she was taken to hospital. PW.2 has given her statement under Section 164 of Cr.P.C. before the Judicial Magistrate as per Ex.P5. In the cross-examination, nothing is elicited from her evidence. Further, PW.2 stated that she will not go with any unknown persons. She also stated that accused used to sell meals in his hotel. PW.2 stated that her mother/PW.1 also knew him very well as she would go the hotel of appellant/accused for taking breakfast and meals. It is suggested to her that she fell down on the ground, while she was playing and sustained injuries, which she has denied. So evidence of PWs.1 and 2 corroborates with each other. Absolutely there is nothing to show that they are deposing falsely.
14. PW.3 - Manjunatha is a witness for Ex.P4/spot panchanama. PW.3 stated that Dy.SP. called him for drawing 12 the panchanama near the hotel of appellant/accused stating that rape was committed by appellant on PW.2/victim. PW.3 has gone to the place of offence, where spot panchanama was drawn as per Ex.P4. PW.1 shown the scene of offence and Ex.P4 was drawn. PW.3 signed Ex.P4 and he also identified Exs.P2 and 3/photos. He has also signed Ex.P6/property seizure memo. Nothing is elicited from the cross-examination of PW.3. The evidence of PW-3 also corroborates with the evidence of PWs.1 and 2.
15. PW.4 - Channanaik has stated that the accused was running the hotel. Dy.SP called him and asked him to come near the hotel for conducting spot panchanama, where the sexual assault took place on PW.2/victim and panchanama drawn as per Ex.P4. PW.2 signed both Exs.P4 and P6. There is nothing elicited from his cross-examination which could help the accused.
16. PW.5 - Veeresh has stated that he is having the hotel near the hotel of appellant/accused. But he has not supported the case of the prosecution.
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17. PW.6 - Vijayakumar and PW.7 - Sunithamma are having hotel near the hotel of appellant/accused. May be because of the appellant/accused having hotel, they have not supported the case of the prosecution.
18. PW.8 - Nagaraj is another circumstantial witness who has not supported the case of the prosecution.
19. PW.9 - E.T. Nagaraj is working as Assistant Engineer in PWD Department and he has stated about preparing sketch map as per Ex.P11.
20. PW.10 Basavaraj is the owner of Egg-rice hotel. He has also not supported the case of the prosecution.
21. PW.11 - Jagaluru Kotresh, who is working as PDO stated about the appellant/accused running the hotel in the scene of offence place and he has issued a letter dated 21.10.2015 as per Ex.P14.
22. PW.12 - S.M.Nagabhushnaiah, who is working as Teacher in Malleshwara Higher Primary School, has issued the study certificate as per Ex.P15. There is nothing in the cross-examination to disbelieve his evidence. 14
23. PW.13 - Dr. Shivakumar B, who has examined the accused.
24. PW.14 - Dr. Kamalamma, Medical Officer, who has examined PW.2/victim has issued the certificate as per Ex.P17. PW.14 has stated that there was a pain in abdominal pain in genitals of victim/PW.2 and there is tenderness present over the left iliac region. There was scratch mark on both the chests and also on the back side of the body as per Ex.P17. Further PW.14 stated that labia minora is swollen and reddish in colour and small abrasion present over the left side. Hymen is reddish in colour and abrated. The Vaginal swab was collected and sent for chemical examination. On the basis of report of FSL, the doctor has stated that there is no sign of vaginal intercourse. But in her cross-examination, she has denied the suggestion put to her that there is possibility that PW.2/victim girl might have sustained injury to her private part, while riding the cycle and falling on the ground, but PW.14 has denied the said suggestion. PW.14 has denied the suggestion that no sexual assault took place on the victim. PW.14 denied the suggestion that the contents 15 of Ex.P17 are not true. So this medical evidence also supports the case of the prosecution.
25. PW.15 - H.M.Veerabhadraiah, is working as Head constable. He has stated that he has taken M.Os.1, 4 and 13 to the FSL Office.
26. PW.16 - Kum. Renuka Kavadi is working as a Women police constable, who brought PW.2 for examination.
27. PW.17 - L.Ramanaika, Police Sub-Inspector, who has registered the case against the appellant/accused. PW.17 stated that, he found the appellant/accused has consumed poison and admitted to the hospital.
28. PW.18 - Rudragowda, Investigating Officer, who has stated about conducting the investigation and recording the statement of witnesses. Though he was cross-examined, but nothing is elicited from his cross-examination.
29. There is no suggestion put to the prosecution witness on behalf of appellant/accused that PW.1 has filed this case falsely implicating the appellant/accused in order to extract the money from the accused or Government. It is also evident from Ex.P5/the Statement of PW.2/victim recorded 16 under Section 164 of Cr.P.C. wherein PW.2/victim has stated about the sexual assault on her by the appellant/accused. She has also stated that PW.1/her mother has informed the alleged act of appellant/accused to his wife, son-in-law and they have abused and quarreled with the appellant/accused in this regard. So on considering the entire oral and documentary evidence, it is evident that the appellant/accused has committed the sexual assault on PW.2/victim and also committed rape on her.
30. The learned Sessions Judge has rightly observed that simply because the hymen was intact, no injuries found on the private part of victim and or seminal stains is present, or slight degree of penetration with or without ejectment constitutes a rape. The learned Sessions Judge rightly relied upon the following decisions of the Hon'ble Supreme Court and the same is as under:
(a) Crl.A.No.133/2016 (RAMESH RAJAGOPAL v. DEVI POLYMERS PVT. LTD.,)
(b) Crl.A.No.1706/2009(N. RAMEGOWDA v. E. BHOPAL)
(c) (1992) 3 SCC 204(MADAN GOPAL KAKKAD v.
NAVAL DUBEY AND ANOTHER;
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(d) 2007 (3) Crimes 124(YADU KUMAR PATEL v.
STATE OF CHHATTISGARH);
(e) 2005 Crl.L.J 2676 (STATE OF KARNATAKA v. REVANNAIAH)
(f) 2005 Crl.L.J 2687 (DILAWARSAB ALISAB JAKATI v. STATE OF KARNATAKA BY ITS STATE.
The learned Sessions judge has rightly found that the statement of PW.2/victim alone is sufficient to believe the case of the prosecution and the same inspires confidence in her. There is no necessity of corroboration to her evidence by other witness.
31. It is the settled principle of law that the corroboration is a rule of law and not rule of prudence. If the testimony of sole prosecutrix or victim is found without any material contradiction or inconsistency, it inspires the confidence in her testimony, then it is sufficient to prove the guilt of the appellant/accused. The learned Sessions Judge has rightly relied upon the following decisions of Hon'ble Supreme Court as under:
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(a) In the case of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny - 2016 (4) Crimes 424 (SC);
(b) In the case of Madho Ram and another Vs. State of U.P. - AIR 1973 SC 469;
(c) In the case of State of Himachal Pradesh Vs. Sanjay Kumar alias Sunny - (2017) 1 SCC (Crimes) 648;
(d) In the case of State of Punjab Vs. Ramdev - AIR 2004 SC 1290;
32. Therefore, keeping in mind these principles, if the evidence of prosecution witnesses, medical evidence and evidence of investigating officer are considered, then it is evident that the appellant/accused has committed the alleged offences. Though there may not be complete penetrative sexual assault, but the victim has sustained injuries on her private part and there is an evidence regarding about penetrative sexual assault over private part on the PW.2/victim. PW.14 - Dr.Kamalamma stated that labia 19 minora is swollen and reddish in colour and small abrasion present over the left side as per Ex.P17. If the oral evidence of PW.2/victim is considered and even considering statement of appellant/accused recorded under Section 313(1)(b) Cr.P.C., before court, it is evident that the accused has not stated anything as to why he has been implicated in this case. Simply denying the evidence of prosecution witnesses, he cannot probabalise his defence. Further, he has not taken any defence denying the incriminating circumstances appearing against him. It is also stated that there are inconsistencies in the suggestions made to PWs.1 and 2. Though there are some contradictions and inconsistencies in the evidence of prosecution witnesses, but they are not material contradictions or material inconsistencies. Some minor discrepancies are bound to occur. As in all the cases, one cannot except the witnesses to depose like a parrot like story. Therefore, considering the oral and documentary evidence and medical evidence, it is evident that PW.2/victim was aged about 08 years at the time of incident and now she is aged about 12 years and she was subjected to sexual assault and accused committed rape on her. Section 375 of 20 IPC states that, a man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman.
33. Viewed from any angle, the judgment of conviction and order of sentence passed by the learned Sessions Judge cannot be stated as illegal, perverse and not based on sound principles of law regarding the appreciation of evidence in these type of cases. Hence, I do not find any error apparent on the face of the impugned judgment of conviction and order of sentence and no need to interfere with the same.
34. Sofar as imposing sentence on the appellant/accused is concerned, the offence under Sections 376(2)(f) of IPC and for the offence under Sections 3 and 4 of POCSO Act states that for penetrative sexual assault, prior to substitution by Act, 2022 of 2018, punishment prescribed is rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also liable to fine. 21
35. Accordingly, learned Sessions Judge has imposed sentence of imprisonment for a period of 07 years and shall pay fine of Rs.50,000/-, in default to undergo simple imprisonment for one year for the offence punishable under Sections 376(2)(f) r/w Sec.4 of POCSO Act, 2012. The District Legal Services Authority was directed to deposit the fine amount of Rs.50,000/- to victim under the Victim Compensation Act, as compensation, in default of payment of fine to undergo simple imprisonment for one year.
36. Learned counsel for the appellant/accused argued that the learned Sessions Judge has not made any enquiry regarding the status and financial condition of the appellant/accused. On the other hand, the accused was running a small hotel having minimum business and he is not financially sound person. Learned counsel also argued that the appellant has already served the sentence and he is in custody. The appellant/accused was arrested on 24.10.2015. Practically the appellant has served the sentence of imprisonment. Therefore, he requested the court to reduce the sentence of fine amount imposed on appellant/accused. Ofcourse, Indian Penal Code also provides for imposition of 22 fine amount. Learned counsel for the appellant also stated that the appellant is not in a position even to file the appeal and this file is entrusted to him through legal services authority. He is not in a position to pay the fine amount. It appears that the learned Sessions Judge considered the age of the appellant and amount of compensation of Rs.50,000/- is awarded and directed the Legal Service Authority to pay the said amount. Again, he has stated that total fine of Rs.50,000/- was imposed on appellant/accused, out of which a sum of Rs.25,000/- is directed to be given as compensation to victim. The appellant/accused has to give compensation as per Section 357 Cr.P.C. Ofcourse, no record is produced regarding financial status of the accused. Looking to the nature of offences and the period of custody he was in jail, I am of the opinion that considering the financial status of the appellant, in my considered view, the fine of Rs.50,000/- appears to be excessive. Therefore, the appellant is sentenced to pay a fine of Rs.25,000/- and out of that a sum of Rs.15,000/- shall be paid to the victim as compensation and remaining amount of Rs.10,000/- shall be remitted to State and in default of payment of fine of 23 Rs.25,000/-, he shall undergo imprisonment for a period of three months.
37. Accordingly, the following:
ORDER
(i) Appeal is allowed in part.
(ii) The judgment of conviction and order of sentence passed by learned Sessions Judge in Spl.C. No.02/2016 dated 15.12.2018 convicting the accused for the offence punishable under Section 376(2)(f) IPC r/w Section 4 of POCSO Act, is hereby confirmed.
(iii) Further the judgment and order of sentence imposing rigorous imprisonment for a period of 07 years on the appellant/accused is also confirmed.
(iv) The order of sentence of fine imposed on the appellant to pay a fine of Rs.50,000/- is modified and appellant is sentenced to pay a fine of Rs.25,000/-. Out of which, a sum of Rs.15,000/- shall be paid to the victim as compensation and Rs.10,000/- shall be remitted to the State. In default of payment of fine amount, he shall undergo three months simple imprisonment.
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(v) Pending Interlocutory applications, if any, stands disposed of.
(vi) Send back the records to the trial court.
SD/-
JUDGE HJ