Karnataka High Court
Girish vs State By on 29 January, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.60 OF 2017
BETWEEN:
Girish
S/o Sannaboraiah
Age 29 years
R/a No. 4424, 3rd Cross
17th Main, 2nd Stage,
Vijayanagara
Mysuru - 570 017.
...Appellant
(By Sri. H.Sunil Kumar, Advocate)
AND:
State by Vijayanagar Police
Mysuru
Represented by SPP
High Court of Karnataka
Bengaluru - 560 001.
... Respondent
(By Sri.Thejesh.P.HCGP)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C., praying to set aside the judgment of conviction
dated: 29.12.2016/30.12.2016 passed by the VI Addl.
Dist. And Spl.Judge, Mysuru in S.C.No.152/2013-
Acquiting the appellant/accused for the offence p/u/s 366
and 376 of IPC and Section 4 and 6 of POCSO Act.
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This Criminal Appeal coming on for Hearing, this day,
the Court delivered the following:
JUDGMENT
This appeal is directed against the judgment dated 29.12.2016 passed by the VI Addl. District and Special Judge, Mysuru in S.C.No.152/2013 and the order of sentence dated 30.12.2016 whereby the appellant (hereinafter referred to as 'the accused') is convicted for the offences punishable under Sections 366 and 376 of IPC, Section 109 read with Section 366 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (in short 'the POCSO Act') and is sentenced to R.I for a period of one year with fine of Rs.1,000/-. In default to pay the fine amount, to undergo S.I for three months for the offence under Section 366 of IPC and R.I for a period of ten years with fine of Rs.1,000/-. In default of payment of the fine, to undergo S.I for six months for the offence punishable under Section 6 of the POCSO Act. 3 Both sentences are directed to run concurrently except default sentence.
2. The case of the prosecution is that the appellant/accused was working as a driver with P.W.4. Victim was a minor girl aged about 16 years. On 15.01.2013 at about 7.45 a.m., accused No.1 induced the minor girl who was then studying in I PUC and kidnapped her in a Tata Indica car bearing Registration No.KA-09-A- 6539. He took the assistance of Accused No.2 to drive the car till Channarayapatna. Thereafter, he sent back the car and stayed with the victim girl in Navarathna Lodge, Shimoga and thereafter in Kamath Lodge at Murudeswara and then in Revannakar Lodge at Hubballi and took a room in Ranganathapura of Kamakshi Palya and during his stay at the above places between 16.01.2013 and 28.01.2013, committed repeated rape on the minor girl.
3. Both the accused denied the charges framed against them and faced trial for the offences under Sections 366, 376 and 109 read with Section 34 of IPC and 4 Sections 4 and 6 of the POCSO Act read with Section 376 of IPC.
4. In proof of the above charges, prosecution examined 13 witnesses. The victim girl was examined as PW.1 and her classmate was examined as PW.2. She partly supported the case of the prosecution. PW.3 was the panch witness to the spot mahazar - Ex.P4 . P.W4, father of the victim girl was examined to prove the complaint lodged by him on 15.01.2013 as per Ex.P6 and the subsequent complaint dated 18.01.2013 at Ex.P5. He stood by the case of the prosecution. PW.6 was the owner of the Indica Car. He partly supported the case of the prosecution. PW.7 was the panch witness to the seizure of the car belonging to PW.6. This witness turned hostile to the case of the prosecution and P.W.8, the Receptionist in Prakruthi Paradise lodge at Bangalore and P.W.9, Receptionist at Kamath Yatri Nivas Lodge, Murudeshwara supported the case of the prosecution and deposed about the stay of accused No.1 and the victim in their lodge on 5 the respective dates. P.W.10 was the medical officer who examined the victim and issued medical reports as per Exs.P16 and P17. According to this witness, he examined the victim in the presence of one Dr.Smitha Rani, a female attendant and the gynaecological examination of the victim revealed hymen tear which suggested sexual intercourse. P.W.12 was the Police Constable who received the missing complaint as per Ex.P5 and registered the F.I.R in Crime No.19/2013 as per Ex.P34 and thereafter incorporated Section 366-A in the F.I.R. He conducted part of the investigation. P.W.13 was the Dy.S.P who continued the investigation and submitted the chargesheet against Accused Nos.1 and 2.
5. Through the above witnesses, prosecution got admitted as many as 35 documents as Exs.P1 and P35. The birth certificate of the victim girl was marked as Ex.P1. As per this certificate, the victim was born on 20.02.1997. The offence is alleged to have been committed between 15.01.2013 and 28.01.2013. Thus, on the date of the 6 commission of the offences, she was 15 years 11 months. The medical reports issued by P.W.10 were marked as Exs.P16 and P17 and the respective receipts issued by the concerned lodges as Exs.P20 and P21. The material objects were marked at M.Os.1 to 9.
6. Both the accused denied the incriminating circumstances brought out in the evidence of the prosecution witnesses and took up the defence of total denial and did not choose to enter into defence. Considering the above evidence and upon hearing the learned counsels appearing for the respective parties, by the impugned judgment, the Special Court acquitted Accused No.2 of the offence under Section 109 read with Section 366 of IPC on the ground that the prosecution failed to prove the charge against Accused No.2 beyond reasonable doubt. In respect of the offence under Sections 366 and 376 of IPC and Sections 4 and 6 of POCSO Act, convicted the appellant-Accused No.1 and sentenced him as stated above.
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7. Feeling aggrieved by the impugned judgment of conviction and order of sentence, Accused No.1 has preferred this appeal assailing the correctness and legality of the findings recorded by the trial Court.
8. Learned counsel for the appellant Sri.H.Sunil Kumar, taking me through the evidence of P.W.1 and the evidence of the medical officer, emphatically submitted that the evidence of the victim P.W.1 suffers from striking contradictions and inconsistencies. In her evidence, she has unequivocally stated that she went with Accused No.1 on her own accord. Her evidence does not disclose any act of forcible abduction by Accused No.1. Barring the evidence of P.W.1, there is no other material to show that accused No.1 abducted the victim from her school making out the ingredients of the offence under Section 366 of IPC and hence, the conviction of the accused for the offence under Section 366 of IPC is illegal and perverse and contrary to the material on record and is liable to be set aside.
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9. In so far as the conviction of accused No.1 under Section 376 of IPC and Sections 4 and 6 of the POCSO Act is concerned, the learned counsel referring to the relevant portion of the statement of the victim would submit that the evidence of the victim read as a whole does not inspire confidence to hold that she was a victim of sexual assault by the accused. Under the said circumstances, without calling for necessary corroboration, the trial Court should not have relied on the testimony of the child witness. The circumstances brought out in the evidence of the prosecution indicate that she was amenable for tutoring and suggestions. Even the medical evidence produced by the prosecution did not lend corroboration to the testimony of the prosecutrix in as much as the examination of the victim was conducted by a male doctor contrary to the indictment contained in Section 27(2) of the POCSO Act which mandates that the examination of a child should necessarily be conducted by a lady doctor, therefore, no reliance should have been placed on the evidence of P.W.7. As a result, there was no corroboration to the 9 interested testimony of P.W.1. Her evidence is shaky and wavering. The cross-examination of the victim indicates that accused No.1 himself procured clothes for her and she was a willing party to the sexual acts and hence, conviction of the accused is patently illegal and perverse.
10. In support of his submissions, learned counsel has placed reliance on the decision of the Delhi High Court in the case of Mohd. Hussain V. State (Govt of NCT of Delhi) reported in (2012)2 SCC 584, Dattu Ramrao Sakhare vs. State of Maharashtra reported in 1997(5) SCC 341; Panchi vs. State of U.P.(1998) 7 SCC 177:
1998 SCC (Cri) 1561 and Hamza vs. Muhammedkutty 2013(11) SCC 150, wherein it is laid down that it is not safe to place reliance on a child witness without corroboration as the child is susceptible for suggestions and is an easy prey of tutoring. On the said point, the learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Sadashiv Ramrao Hadbe vs State of Maharashtra and another reported in 10 2006(10) SCC 92 wherein it is held that in a rape case, the accused may be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court.
11. Refuting the above submissions, learned HCGP appearing for respondent-State argued in support of the impugned judgment contending that the learned Special Judge has appreciated the evidence in proper perspective. The evidence of the prosecutrix is fully reliable, trust- worthy and inspires full confidence to hold that Accused No.1 abducted her on the pretext of marrying her and thereafter, kept her in various lodges and subjected her to repeated sexual intercourse against her wish and will. The circumstances brought out in the evidence of the prosecutrix point out that she had no means to escape from the clutches of the accused. She was kept in confinement all throughout, as such, there is clear and convincing evidence to prove the ingredients of the offence under Section 376 of IPC and Sections 4 and 6 of the 11 POCSO Act and hence, there is no reason to interfere with the well considered judgment rendered by the trial Court.
12. With regard to the appreciation of the testimony of a child witness is concerned, learned HCGP has placed reliance on the decision of the Hon'ble Supreme Court in the case of P.Ramesh vs. State, Rep. by Inspector of Police (Criminal Appeal No.1013/2019) wherein the very same decision relied on by the learned counsel for the petitioner in Dattu Ramrao Sakhare and other cases have been considered and it has been laid down that a child is a competent witness and if the testimony of the child witness inspires confidence, the same can be relied on as a solitary basis to record conviction against the accused. He has also relied on the decision of the Chattisgarh High Court on the same point and submitted that the evidence of the victim in the instant case though is not acceptable with regard to the charge under Section 366 of IPC is concerned, yet in so far as the offence under Section 376 of IPC and Sections 4 and 6 of the POCSO Act is 12 concerned, her testimony is clear, consistent, cogent and clearly makes out the offence against accused No.1 and thus sought to reject the appeal.
13. I have given my anxious consideration to the submissions made at the bar and have carefully scrutinized the material on record with reference to the principles of law enunciated in the decisions relied on by the learned counsels appearing for the parties.
14. Coming to the charge under Section 366 of IPC is concerned, learned HCGP has fairly conceded that the evidence adduced by the prosecution is not sufficient to record a finding that the victim was abducted by Accused No.1 using force or any deceitful means. In appreciating this contention, it is relevant to note that at the earliest instance, a missing complaint was lodged by the father of the victim before the Vijayanagar Police. There were no allegations whatsoever that the victim was abducted by Accused No.1. It is only after the victim was traced by the Police, she has narrated the manner in which she was 13 taken by Accused No.1. In this background, if the evidence of P.W.1 is analyzed, she has no where stated that she was forcibly taken by the accused on the pretext of marrying her. In her chief examination, she has stated that on 15.01.2013 at about 7.45 p.m., she and her friend P.W.2 were proceeding in the car driven by Accused No.1 to their college. On the way, accused No.1 made P.W.2 to get down from the car and thereafter, he told P.W.1 that her father was not feeling well, therefore he would take her back home, but instead he drove the car towards Channarayapatna and when she objected, accused No.1 threatened her. But in the cross-examination, it is elicited that after getting down from the car, she travelled with Accused No.1 from place to place in bus and she did not raise any objection. This evidence goes to show that there was no forcible abduction, rather in a preplanned design, P.W.1 accompanied Accused No.1.
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15. Section 366 of IPC makes kidnapping, abducting or inducing a woman to compel her marriage an offence. The term abduction is defined in Section 362 as under:
362. Abduction: - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
16. In the instant case, in her cross-examination, P.W.1 has given a complete go-by to the version narrated by her in the chief-examination and has deposed as if she accompanied Accused No.1 on her own accord. It is brought out in the cross-examination that on the way to Channarayapatna, she even changed her uniform and wore the clothes brought by Accused No.1. This evidence clearly suggests that as preplanned, P.W.1 accompanied Accused No.1. As such, the ingredients of Section 366 of IPC, in my view, have not been made out by the prosecution. To that extent, the conviction of the accused under Section 366 of IPC cannot be sustained. Learned Sessions Judge has not discussed the evidence constituting 15 the ingredients of this offence. Since the conviction for this offence has been rendered without considering the evidence adduced by the prosecution, the conviction of the accused No.1 for the offence under Section 366 of IPC is liable to be set aside. To this extent, appeal deserves to be allowed.
17. Coming to the offence under Section 376 of IPC and Sections 4 and 6 of the POCSO Act is concerned, the main contention urged by the learned counsel for the appellant is that the evidence of the prosecutrix P.W.1 suffers from contradictions and inconsistencies and therefore, without corroboration, the testimony of P.W.2 could not have been relied as the sole basis to convict the accused for the above offences.
18. In view of this contention, I have carefully analyzed the evidence of P.W.1 and I do not find that the testimony of P.W.1 suffers from any material contradictions or inconsistencies insofar as acts of rape are concerned as contended by the learned counsel for the 16 petitioner. The victim has unequivocally stated in her evidence that after getting down at Channarayapatna, Accused No.1 took her to Shivamogga in a KSRTC bus and booked a room in Navarathna lodge and they stayed for two days in that room. She has asserted in her evidence that on the first day itself, accused No.1 had sexual intercourse on her in spite of her objection and from there he took her in a bus to Murudeshwara, where they stayed in Kamath lodge for two days. Even in the said lodge, Accused No.1 committed sexual intercourse on her against her will and consent. Thereafter, he took her to Hubballi and they stayed in Revannakar Comforts Lodge for two days and even in the said lodge, she was subjected to sexual intercourse against her will and consent. P.W.1 has further stated that from Hubballi, they came to Bengaluru in a bus and stayed for two days in Lucky Inn lodge and thereafter, shifted to a rented room. She has even gone to the extent of stating that Accused No.1 having exhausted money, pledges her gold chain and mobilized the amount to pay rent.
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19. The testimony of P.W.1 has not been discredited in the cross-examination. She has consistently denied the suggestion that with her consent, sexual intercourse was committed on her thereby establishing the case of the prosecution that during their stay in various lodges, P.W.1 was subjected to sexual intercourse against her wish. Even otherwise, there being clear evidence to show that P.W.1 was a minor aged about 15 years 11 months as on the date of the commission of the offence, the consent of the victim was immaterial. Her evidence is clear and cogent and in my view, the evidence of P.W.1 alone could be made as the sole basis to record conviction against the accused No.1 for the offence under Section 376 of IPC, Accused has not brought out any contradictions in the testimony of P.W.1. On careful scrutiny of her evidence, I am of the view that the evidence of P.W.1 is fully reliable and trust-worthy and does not require any corroboration. Nevertheless, prosecution has examined P.Ws.8 and 9, namely, Receptionists of Prakruthi Paradise lodge at Bangalore and Kamath Yatri Nivas Lodge, Murudeshwara. 18 Both these witnesses have corroborated the testimony of P.W.1 regarding her stay in these lodges. There is no explanation by accused No.1 as to why he stayed with the victim in the lodges. The testimony of P.W.1 that she was subjected to sexual intercourse by the Accused No.1 during her stay in the above lodges has not been challenged in the cross-examination. Except the suggestive denial, accused No.1 has not been able to discredit the veracity of the testimony of P.W.1 with regard to the sexual assault committed by Accused No.1 on her. The testimony of P.W.1 finds further corroboration in the evidence of the medical officer (P.W.10) who has clearly deposed that he examined the victim on 30.01.2013. In his evidence, he has stated that during the examination, victim herself furnished the history of the incident stating that she was sexually assaulted during their stay in the various lodges since 15.01.2013. Even the testimony of P.W.10 is not discredited in the cross-examination. The testimony of P.W.10 coupled with the medical examination 19 report issued by him at Ex.P.17 points out that during the local examination he found the following findings:
Public Hair : 4 cm in length, no matting or stains Labia Majora : Well developed, No injuries Labia Minora : Separated, No injuries Clitoris : Normal Fourchette : laceration present over posterior aspect Hymen : Torn at posterior aspect as 7'O Clock position, easily admits two fingers. Vagina : Rugosities intact with blood stained fluid seen in vaginal cavity Discharges/stains : Blood stained discharge seen over vaginal vault.
20. According to P.W.10, on gynaecological examination of victim, he noticed hymen tear which was suggestive of sexual intercourse. This evidence lends further corroboration to the testimony of P.W.1. The argument of the learned counsel for the appellant that since the victim was not examined by a woman doctor, the evidence of P.W.10 is liable to be discarded, cannot be accepted. No doubt, Section 27(2) of the POCSO Act prescribes that in 20 case the victim is a girl, the medical examination should be conducted by a woman doctor. This section, though couched in mandatory terms, has to be read as directory in nature. There can be situation where a woman doctor may not be available in the hospital or may not be in a position to conduct the examination. In such an event, if the victim is examined by a male doctor that by itself does not vitiate the examination of the victim girl. Moreover in the instant case, P.W.10 has clearly stated that the victim was examined in the presence of a lady medical attendant. The name of the medical attendant is mentioned in Ex.P17. As such, there is substantial compliance of Section 27(2) of the POCSO Act and therefore, the contention urged by the learned counsel for the appellant cannot be considered as a ground to reject the testimony of P.W.10. Thus, on considering the overall facts and circumstances of the case, in the light of the direct evidence given by the victim which is fully corroborated by the surrounding circumstances and the medical evidence discussed above, learned Special Judge was justified in holding the accused 21 guilty of offences punishable under Section 376 of IPC. Even on reappreciation of the entire evidence on record, I do not find any good ground to differ with the view taken by the trial Judge. As the prosecution has proved its case beyond reasonable doubt, I concur with the impugned judgment holding accused No.1 guilty of the offence punishable under Section 376 of IPC. Since this offence is proved to have been committed on a child as defined under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 and there being clear proof that Accused No.1 committed penetrative sexual assault on the child more than once or repeatedly as defined in Section 5(l) of the Act, he is liable for punishment as stipulated in Section 42 of the Protection of Children from Sexual Offences Act, 2012.
21. Even though the learned counsel for the appellant has prayed for reduction of sentence, yet the law prescribes minimum sentence, the Courts do not have any discretion to reduce the sentence. The Court below has awarded minimum sentence prescribed under Section 22 6 of the POCSO Act for the offences proved against accused No.1. Even though the said provision has been amended and for the offence under Section 6 of the POCSO Act, the punishment of 20 years is prescribed, yet in the instant case, the offence having been committed prior to amendment of Section 6 of the POCSO Act, the trial Court has rightly sentenced the accused. As such, I do not find any justifiable ground to interfere with the impugned order in so far as the conviction of the accused for the offences punishable under Section 376 of IPC/ Section 6 of the POCSO Act. To this extent, the appeal is liable to be dismissed.
22. Accordingly, the appeal is allowed in part. The conviction of the appellant for the offence under Section 366 of IPC and the sentence awarded on the appellant- Accused No.1 for the said offence is set aside. The conviction of the appellant-Accused No.1 for the offences punishable under Section 376 of IPC and Section 6 of the 23 POCSO Act and the sentence awarded to the appellant- Accused No.1 for the said offence is confirmed.
Sd/-
JUDGE bnv*