Karnataka High Court
The State Of Karnataka, vs Sripathi Ashok Talakeri, on 14 October, 2020
Author: Ravi.V.Hosmani
Bench: Ravi.V.Hosmani
I N T H E HI G H COU R T OF K A R N A T A K A
D HA R W AD BE N CH
D AT ED T H I S T H E 1 4 T H D AY OF OC T O BER , 2 02 0
P RES EN T
T H E H O N ' BL E M R. JU ST I CE N. K . S U DH I ND R ARAO
A ND
T H E H O N ' BL E M R. JU ST I CE RA VI V. H OS M ANI
CR L.A .N O. 10 03 3 1/ 20 1 6
B ET W E EN :
T H E ST A T E OF K ARN AT AK A RE P RE SEN T ED
BY K AG W A D P OLI CE T H R OU GH
AD D L . ST AT E PU B LI C P RO SE CU T O R,
OF FI CE OF T H E AD VO CAT E GE N ERA L,
H I GH CO U RT BU I LD I N G, D H A RW A D .
.. . AP P EL L ANT
(B Y SRI V.M . BAN AK AR, AD D L. S.P .P . )
A ND :
SRI P A TH I ASH O K T A L AK ERI ,
AG E 2 5 Y E ARS,
R/O AI N AP U R, T A LU K : ATH ANI ,
BE LA GA VI D I ST RI CT .
... RE SP ON D ENT
(B Y SRI S.C .BH U T H I , AMI CU S CU RI A E)
TH I S CRI MI NA L AP P E AL I S F I L ED U N D E R SE CT I ON
37 8 (1 ) & ( 3 ) O F T H E CO D E OF CRI M I N AL P RO CE D U RE T O
G RAN T L EA VE T O APP EA L AG AI NS T T H E JU D GM E N T AN D
O RD ER OF ACQ U I T T AL D AT ED 3 1 . 10 .2 01 5 P AS SED B Y TH E
I I I ADD L . DI ST RI CT AND SESSI O N S JU D GE & SP ECI AL
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T H E OF F EN CE P U NI SH ABL E U ND ER SEC T I O N S 3 7 6 (2 )(I ) AN D
50 6 OF I P C AND SECT I ON S 4 & 6 OF T H E P RO T E CTI ON O F
CH I LD RE N F RO M S EXU AL O F F E N CES A C T, 2 0 12 , S ET A SI D E
THE JU D GM EN T AN D OR D E R OF ACQU I T T AL D AT E D
31 . 10 .2 0 1 5 P ASS ED BY TH E L EA RN ED I II AD D L. D I ST RI C T
AN D SE SSI ON S JU D G E & SP ECI AL J UD G E, BEL AG AVI I N
SE SSI ON S CA SE N O .31 0 /2 0 14 BY A LL O W I N G T H I S AP P E AL
AN D C ON VI CT T HE R ESP O ND E NT /A CCU SED FOR THE
OF F E NC E P U NI SH AB L E U ND E R SE CTI ON S 376 (2 )(I ), 50 6 O F
2
I P C A ND S ECT I O N S 4 AN D 6 OF P RO T E CTI ON OF CH I LD RE N
F RO M SEX U AL O F F E N CES A CT , 2 0 12 .
THIS A PPEAL COMING ON FOR F INAL HEARING
THIS DAY, N. K. SUDHINDRARAO, J., DELIVERED THE
FOLL OWING:
: JUDGMENT :
This appeal is directed against the judgment passed in S.C.No.310/2014 by the learned III Additional District and Sessions Judge & Special Judge at Belagavi ("the Trial Judge" for short), wherein the accused was found not guilty of the offence punishable under Sections 376(2)(i), 506 of the Indian Penal Code ("IPC" for short) and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 ("POCSO Act" for short) and was acquitted. Being aggrieved by the said judgment of acquittal, the prosecution has come in appeal.
2. The substance of the complaint and case of prosecution is that, on 29.08.2014 at 11.30 a.m. at Ainapur village, the accused being 3 aware of CW.6 was a minor and ensuring she was alone at house, lured her on Rs.10/- and took her to the 3 r d room of the house, put her on the floor stripped her and raped. When she was screaming, he shut her mouth and threatened that he would murder if she informs anybody. The complaint was lodged on 12.09.2014, which was registered in Crime No.127/2014. The accused was arrested and other formalities were completed. The charge sheet was submitted before the Court for the offence punishable under Sections 376(2)(i) and 506 of IPC and Sections 4 and 6 of POCSO Act. The learned Trial Judge found that, there are sufficient grounds to frame charge for the offences punishable under Sections 376(2)(i) and 506 of IPC and Sections 4 and 6 of POCSO Act.
3. Learned Trial Judge was accommodated with the following oral evidence of PW.1 to PW.11:
PW.1: Kaveri W/o Vinod Padale, 4 PW.2: Pallavi D/ow Vinoda Padale. PW.3: Sanjeevkumar Tatoba Kamble, PW.4: Udayakumar Vimala Nadoni, PW.5: Vilasa Machhendra Davali PW.6: Malakappa Satappa Mundiginal. PW.7: Viveka Siddaramappa Honnalli. PW.8: Vikram S/o Raju Talakeri. PW.9: Sunanda Raveendra Kambale PW.10: Pundaleeka Devappa Talakeri. PW.11:Sharanabasappa Subedar Documentary evidence at Ex.P.1 to Ex.P.16 on behalf of the prosecution are as follows:
Ex.P.1: Complaint.
Ex.P.2: Statement under Sec.164 of Cr.P.C.
Ex.P.3: Photographs.
Ex.P.4: Seizure Mahazar Ex.P.5: Seizure Mahazar Ex.P.6: Spot Mahazar.
Ex.P.7: CD seizure Mahazar.
Ex.P.8: RFSL Report.
Ex.P.9: Medical Certificate of victim Ex.P.10: Medical Certified of accused.
Ex.P.11: Spot sketch map.5
Ex.P.12: Statement of PW.10.
Ex.P.13: FIR Ex.P.14: Letter of HESCOM Ex.P.15: Transfer Letter.
Ex.P.16: VPC extract.
The material objects MOs.1 to 8 were considered.
MO.1: Pubic hair of accused. MO.2: Underwear of accused. MO.3: Pubic hair of victim. MO.4: Blue shirt of victim. MO.5: Sky colour blouse MO.6: Finger nail scrapping MO.7: Veginal Swabs.
MO.8: CD.
4. Learned Trial Judge found the accused not guilty, by virtue of finding that, the prosecution failed to prove the commission of offence by the accused beyond reasonable doubt and acquitted.
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5. Learned Additional State Public Prosecutor Sri V.M.Banakar would submit that the offence is defined under the special statute. The evidence of the commission of offence mainly depends upon the testimony of the victim in respect of offence relating to sexual assault. He would further submit that, the learned Trial Judge has focused the attention of the other witnesses and considered hostility as a ground for acquittal. There is no detailed discussion on the oral evidence of the victim, who was examined as PW.2, she is a minor girl, there was no exaggeration in her evidence, but the learned Trial Judge did not believe it and same has caused miscarriage of justice.
6. Learned Addl. State Public Prosecutor would further submit that, in a case of similar to the present one, what is required is, the victim when she speaks before the Court, the Court has to see whether it inspires confidence. 7
7. Sri S.C.Bhuti, Amicus Curiae submits that the definition of the offence triable by a Special Judge, the fact of the matter is that the allegation of the prosecution must be truth and the evidence of the victim must be corroborated in the independent angle. In this connection, independent angle is nothing but the other witnesses and they have turned hostile and even the evidence of victim is not precise and point finger towards the accused.
8. During her cross-examination, she has unequivocally admitted that her version deposed before the Court earlier was suggested by her brother. Thus, in the circumstances, the family dispute between the families of the complainant and the accused are also cause for lodging the present complaint against the accused to settle score against him.
9. The total number of witnesses examined by the prosecution are PW.1 to PW.11. 8 Among them, PW.3-Sanjeevakumar Tatoba Kamble and PW.4-Udayakumar Vimala Nadoni, the mahazar witnesses examined on 28.09.2015, have turned hostile.
10. PW.5-Vilasa Macchendra Davali is the mahazar witness for seizing of compact disk (CD) containing statement of the victim recorded under Section 161 of the Code of Criminal Procedure ("Cr.P.C" for short). PW.8-Vikram son of Raju Talakeri is a witness, who had rented the house to the complainant and victim.
11. PW.9-Sunanda Ravindra Kamble is stated as circumstantial witness, wherein she speaks about the victim girl as complaining about the incident. The evidence of this witness is that, one year prior to giving evidence, the victim had gone to the house of this witness and was attending the nature call very often. When this witness asked her the reason, victim tells that she was suffering pain in her private part and 9 this lady-witness examined her body and asked her why it happened. But the victim girl did not answer. This witness asked her to lay-down and examined her body. There were marks of wound, she could also see tearing of private part and when she asked the victim as to why it happened, she told that the accused promised her to pay off Rs.10/- and inserted nikkar in her mouth, pushed her to the floor and slept with her, and also told about the overt-act of sexual intercourse by force. Thereafter she wept and took out the cloths in her mouth and ran towards the house. Later this witness felt that, it was not advisable to keep the victim girl in her place Borgaon. She has been cross-examined. She suggested of quarrel between the complainant's family and the accused. She denies the suggestions made against her version.
12. PW.10-Pundalika Devappa Talakeri, aged about 95 years is the grandfather of the 10 accused in whose house the offence on the victim was stated to have been committed, but he turned hostile.
13. Now the evidence of complainant Smt.Kaveri examined as PW.1. She belongs to Donawada village. Her husband died 10 years back. She settled in her parents' house at Ainapur. She has four female children. Among them, victim girl is CW.6, the 3 r d daughter. The accused was known to this witness. His house is at a distance of four houses from her house and by the side of the house of complainant, the house of the grandparents of the accused is situated. One year earlier to the date of evidence on 28.09.2015, this lady had gone to her aunt's house who is CW.17-PW.9. CW.6-victim and Prathiba also had accompanied her. CW.6-victim girl was telling her aunt-CW.17 that, she was feeling pain near her private part. Thereafter CW.17 applied some medicine and on enquiry 11 CW.6-victim girl informed, about 5 days earlier the accused promised of Rs.10/- and took her to the house of his grandparents and made her to lay-down and raped her and when she was screaming he inserted a cloth in her mouth, threatened her also that in case, she inform about the incident to any other, he would kill her. Thereafter complainant-witness had reason to afraid of the pride and prestige and kept quiet for 7 to 8 days and the complaint was lodged thereafter. She identifies the complaint as Ex.P.1 and her signature Ex.P.1(a). She has been examined by the learned counsel for the accused. The gist of cross-examination is regarding whether securing medical treatment to the victim and revealing of the relation going to the house of CW.17 and then coming to know about the incident in her statement. She denies the suggestions made against her version in the chief-examination. The further part of the cross- examination is also regarding the location of the 12 house and improbability of the genuineness of her version.
14. Then the material witness who is the victim is PW.2 who earlier stated as CW.6. She is aged 14 years on 28.09.2015. She tells to the Court in her chief-examination that, two years back in day time she had gone to the house of CW.18 who was watching television. The accused has spread mat, applied coconut oil to her private part and touched. She further tells that the accused stuffed her mouth with cloth, tied her hands and legs and also her eyes, bolted the door and there was another door, that also was closed. He did not leave her, despite pleas. He had pulled her inside the room, he stripped her clothes, he also removed clothes and undergarments and then started loving. He squeezed near her private part with his hands. She felt irritation and he torn her private part with his hand, thereafter he put his private part into her private part, because 13 of which, she suffered tearing of her private part. She has given statement before the police. She identifies her statement recorded under Section 164 of Cr.P.C. which was marked as Ex.P.2. During she was medically examined as well, she denies the suggestion against her version. She admits that she was told by CW.8 regarding the version to be spoken in the Court. Further suggestions are regarding the incident, overt-acts and she telling lie.
15. The doctor who has examined the victim girl is Dr.Malakappa Saatappa Mundiginal is examined as PW.6. He is aged 65 years. He has examined the victim and gives description and states that on 13.09.2014 at 5.15 a.m he was the CMO of BIMS Hospital, Belagavi. The victim was admitted as inpatient. She was examined by Gynecologist and tells that the injuries found on the victim are 1x1 cm near labia minore 1 x 1 cm and 1 X 0.5 cm. her 14 private part was not examined. He did not seen hymen, but describes it was in the shape of 3, 6 9 of watch needles. Her age was found to be between 14 and 16. He also tells about the articles subjected to examination of FSL. He did not found seminal stains on item Nos.1 to 7 and also skin tissuing. He opined the victim girl might have been subjected to the act like that of sexual intercourse but there is no recent sexual intercourse.
16. The another doctor who was examined on 29.09.2015 as PW.7 is Dr.Viveka Siddaramappa Honnalli. He examined the accused. He states that, the accused was aged 18 to 30 years and his opinion is the accused is able to perform sexual intercourse, at present there is no sign of sexual intercourse.
17. It is necessary to mention that the accused and the victim were examined separately, wherein PW.6 examined the victim on 15 13.09.2014 at 5.15 a.m. at BIMS Hospital, Belagavi, whereas the accused was examined on 15.09.2014 in the morning 10.45 at Taluka Hospital, Chikkodi.
18. The investigating officer Mr.Sharanabasappa Hanamantrao Subedar is examined as PW.11. He speaks regarding the steps of investigation and the job done by him.
19. In the overall circumstances of the case, the Trial Judge has not in detail examined the evidence of the victim girl. No doubt the evidence of mother of the victim is based on the version spoken by the victim. Incidentally the learned Trial Judge forgotten the basic rudiment that this witness had occasioned to watch the sign of movement of the victim in the house of CW.17-PW.9. Further the learned trial Judge without looking to the circumstances does not give the reasons for not believing the evidence of the victim. It is not sufficient that, he concludes 16 that it is not believable. She is a victim who had undergone the torture and humiliating attack on her body and life. Considering the sequence and chronology of her version, the evidence of PW.9 does not appear to be unnatural or improbable. She has not made scatting attack on the accused during evidence. On the other hand, there was a reason for PW.9 to ask question to the victim after noticing her attending very often nature calls and thereafter victim was made to lay down and she had an occasion to look into the private part, observing injuries and then the victim to tell what had happened and thereafter the victim tells what was happened. Her evidence inspires confidence. Accused was known to victim and her mother.
20. Another fact is that PW.1 the mother of the victim was also present in the house of PW.9 when noticing of strange movements of victim by the PW.9-Sunanda.
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21. Now the mother comes to know about the incident. This evidence definitely is not an artificial or ironical. There is naturality and reliability. The date of incident is stated to be on 29.08.2014, the date of complaint is 12.09.2014. There is a delay of around 14 days in filing the complaint. The sequence of events and the explanation by the complainant-PW.1, who is the mother of the victim is observed, it reveals that they were afraid of pride and prestige of the family.
22. We find that very often this element of apprehension taken place whenever a serious attack is made on a female more particularly in the rural side. Further there were other three daughters to this witness-PW.1 quiet natural as she was scared of future of those three girls besides the victim girl subjected to a ghostly incident.
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23. Insofar as the corroboration between PW.1 and PW.2 is concerned, the former is the mother and later is the daughter-PW.2, who is the victim.
24. In her evidence, she has spoken specifically on the overt-acts suffered by her in the hands of the accused. She tells in the language or the words that could be expected from her, she is not an exaggerated or highly literate. No doubt, the exaggeration on her part is regarding tying of hands and limbs. It is necessary to find whenever the victim wants to see that the offender has to be taken care of by the process of law, in the heat of mentioning the attack on her she would make exaggeration. However, absence of a particular overt act of tying limbs in the complaint and finding place during the oral testimony on oath by the victim does not fall serious significance for the very reason that from the evidence of victim of the 19 offence of aggravated sexual assault, what is required is whether her evidence in substance revealed the commission of offence charged against the accused and the exaggeration or glorifications are liable to be eschewed. In this connection, the substance of her evidence is that, she speaks of the overt-acts, which constitute the ingredients of the offence and insofar as the grandfather of the accused turning hostile to the prosecution case is concerned, it is understandable considering the relationship despite the witness PW.10-Pundalika Devappa Talakeri is aged 95 years.
25. It is necessary to point out that mode of appreciation of evidence by the learned Trial Judge appears that, he has gone on under the presumption that the accused has not committed the offence. He failed to appreciate the evidence keeping in mind about the established principles of due care and caution while appreciating the 20 evidence of the victim in a rape case. In the overall context and circumstances of the case, the conclusion given on the evidence by the learned Trial Judge appears to be superficial and does not go deep in corroboration between the evidence among the evidence of PW.1 mother of the victim and PW.2 the victim and PW.9, the circumstantial witnesses are totally ignored. The judgment of acquittal suffers from infirmity, irregularity and has resulted in miscarriage of justice. It is liable to be set aside. Accordingly, we find the judgment of acquitting the accused for the offences punishable under Sections 376 (2) (i) and 506 of IPC and Section 4 of POCSO Act is liable to be set aside.
26. The evidence of PW.2 squarely speaks about the intimidation or threat to life on her by the accused. So we find that, it is a fit case to convict the accused for the offence punishable under Sections 376(2)(i) read with Section 4 of 21 POCSO Act and read with section 376 of IPC and accused is also found guilty of the offence punishable under Section 506 of IPC.
27. Learned counsel for the accused Sri S.C.Buthi in the circumstances submits that the minimum imprisonment for the offence under Section 376(2)(i) is 10 years and fine; so also section 4 of the POCSO Act is minimum 10 years and fine; and Section 506 is attracted against the accused in the case is punishable of two years imprisonment and fine.
28. The offence under Section 4 of the POCSO is punishable with imprisonment for 7 years and fine as on the date of incident, i.e., 29.08.2014 and the subsequent amendment of enhancing the duration of imprisonment came into effect from 16.08.2019 by Act No.25/2019. Hence, we proceed to pass the following: 22
: ORDER :
1. The appeal preferred by the prosecution against the judgment of acquittal dated 31.10.2015 passed by the Trial Judge in S.C.No.310/2014 is hereby allowed in part.
2. The judgment dated 31.10.2015 passed by the learned Trial Judge acquitting the accused for the offence punishable under Section 376 (2) (i) and 506 of IPC and Section 4 of POCSO Act is hereby set aside.
3. Consequently the accused is found guilty of having committed offence under Sections 376(2)(i) and 506 of IPC read with Section 4 of POCSO Act. However, we find that the act does not fall within the frame of Sections 5 or 6 of the POCSO Act. We find that acquitting of the accused for the offence under Section 6 of POCSO Act is proper and accordingly confirmed.23
4. We have heard the learned counsel for accused and also Addl. S.P.P. on sentence. Learned counsel submits that lenient view may be considered.
Learned Addl.S.P.P. submits that accused is not entitled for lenience.
5. We find the accused be sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.10,000/-, in default to undergo simple imprisonment for two months for the offence punishable under Section 376(2) of IPC read with Section 4 of the POCSO Act.
6. The accused be sentenced to undergo imprisonment for 6 months for the offence under Section 506 of IPC and pay fine of Rs.2,000/-, in default to undergo simple imprisonment for 15 days.
7. The substantive sentences shall run concurrently.
8. If the accused was in judicial custody for any period, the same shall be given set off u/s 428 Cr.P.C.
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9. We find that the Amicus Curiae Sri S.C.Buthi for put his efforts in representing the accused and arguing the matter and it is just and proper to fix the remuneration at Rs.15,000/-.
10. Send copy of this judgment to the learned Trial Judge for implementation and also with a direction to ascertain whether the victim has been compensated under Victim's Compensation Fund and proper compensation is received by her.
SD/-
JUDGE SD/-
JUDGE EM