Karnataka High Court
Firoz Hatiwale S/O Mainuddin Hathiwale vs The State Through Sulepeth on 15 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 Crl.A.No.200164/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200164 OF 2018 (374)
BETWEEN
FIROZ HATIWALE S/O MAINUDDIN HATHIWALE
AGE: 24 YEARS, OCC: MECHANIC,
R/O SULEPETH, TQ. CHINCHOLI,
DIST. KALABURAGI-585101.
...APPELLANT
(BY SRI BABURAO MANGANE, ADVOCATE)
AND
THE STATE THROUGH
SULEPETH POLICE STATION,
TQ. CHINCHOLI, DIST. YADGIRI,
THROUGH ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585107.
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE II ADDITIONAL SESSIONS JUDGE AT
KALABURAGI IN SPECIAL CASE (POCSO) NO.18/2015
2 Crl.A.No.200164/2018
DATED:22.09.2018 AND ACQUIT THE APPELLANT FOR THE
OFFENCE PUNISHABLE UNDER SECTION 504 OF IPC AND
SECTION 3(1)(xi) AND (OLD ACT.): 3(1)(w)(i) OF SC/ST PA ACT
AND ALSO SECTION 10 OF POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGEMENT
The appellant/accused has filed this appeal under Section 374(2) of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the learned II Additional Sessions Judge, Kalaburagi in Special Case (POCSO) No.18/2015 dated 22.09.2018.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. Brief factual matrix leading to the case are as under:
That on 04.04.2015 around 9.30 a.m. the victim aged about 10 to 11 years was proceeding to get a coconut. It is 3 Crl.A.No.200164/2018 alleged that the accused enticed the victim under the guise of giving chocolates and later on took her on his shoulder to a deserted and dilapidated teachers' quarters, put her on the ground, abused her in vulgar language as "K gÁAqÀ ZÀÄ¥ï ¨ÉÊmï", threatened her, held her mouth, bite her chin, fell on her and tried to remove her under garments. When the child cried, the complainant i.e., the father of the victim and CW.11 who were in search of the child after hearing the cry rushed to the spot and on seeing them, the accused fled from the spot. Then the victim narrated the incident to her father and she was taken to the police station, wherein, a complaint came to be lodged. On the basis of the complaint, the crime was registered and the Investigating Officer has drawn spot mahazar and seized a cap of accused and also his chappals from the spot as per the spot shown by the victim and then she was sent for medical examination. Later on he recorded the statement of witnesses and also obtained a document to show that the victim belongs to Scheduled Caste community and then they found that there is material evidence available 4 Crl.A.No.200164/2018 against the accused. Hence, he has submitted the charge sheet against the accused for the offences punishable under Sections 376 and 504 of the Indian Penal Code, 1860 (for short 'IPC'), under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC/ST (POA) Act') and under Section 10 of the Prevention of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').
4. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the learned Special Judge has taken cognizance of the said offences. The accused was arrested and was produced before the Court and subsequently, he was enlarged on bail. The accused was represented by the counsel, the prosecution papers were furnished to the accused as contemplated under Section 207 of Cr.P.C.
5. After hearing the arguments and after appreciating the oral and documentary evidence, the learned 5 Crl.A.No.200164/2018 Special Judge has farmed charges against the accused for the offences under Section 504 of IPC, Section 10 of the POCSO Act and Section 3(1)(xi) of the SC/ST (POA) Act. The accused pleaded not guilty and claimed to be tried.
6. To bring the guilt of the accused, the prosecution has examined in all 18 witnesses and also placed reliance on 18 documents marked as Exs.P1 to P18 and five material objects marked as MOs.1 to 5. After completion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused was of total denial.
7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Special Judge has convicted the accused for the offence punishable under Section 10 of POCSO Act, under Section 504 of IPC and under Section 3(1)(xi) (old) and 3(1)(w)(i) 6 Crl.A.No.200164/2018 (new) of the SC/ST (POA) Act and sentenced him by passing the following order:
"Acting under Section 235(2) of Cr.P.C., the accused is sentenced to under go for simple imprisonment for a period of 2 years and a fine of Rs.25,000/- for the offences punishable under Section 504 of Indian Penal Code and in default to pay fine, he shall under go further simple imprisonment for a period of 3 months.
Acting under Section 235(2) of Cr.P.C., the accused is sentenced to undergo for rigorous imprisonment for a period of 5 years and a fine of Rs.1,00,000/- for the offence punishable under Section 3(1)(xi) [old act]; 3(1) (w)(i) of Schedule Caste/Schedule Tribe (Prevention of Atrocities) Act, 1989 and in default to pay fine, he shall undergo further simple imprisonment for a period of 6 months.
Acting under Section 235(2) of Cr.P.C., the accused is sentenced to undergo for rigorous imprisonment for a period of 7 years and a fine of Rs.1,00,000/- for the offence punishable under Section 10 of POCSO Act, 2012 and in default to pay fine, he shall undergo further simple imprisonment for a period of one year.7 Crl.A.No.200164/2018
All the sentences of imprisonment shall run concurrently."
8. Being aggrieved by this judgment of conviction and order of sentence, the accused is before this Court by way of this appeal.
9. Heard the arguments advanced by the learned counsel for the appellant/accused and the learned High Court Government Pleader for the respondent - State. Perused the records.
10. The learned counsel for the appellant/accused would contend that the evidence led by the prosecution is inconsistent and contradictory and there is no evidence as regard the offence under Section 504 of IPC and the provisions of Section 10 of the POCSO Act cannot be made applicable. He would contend that the Trial Court has not appreciated the oral and documentary evidence in a proper perspective and hence, he would seek for allowing the appeal 8 Crl.A.No.200164/2018 by setting aside the impugned judgment of conviction and order of sentence by acquitting the appellant/accused.
11. Per contra, the learned High Court Government Pleader would contend that PWs.1 and 3 are the eyewitnesses and PW.2 - victim have all fully supported the case of the prosecution. He would contend that their evidence is again corroborated by the evidence of PW.4 and PW.5 though turned hostile, his cross-examination reveals that the spot mahazar was drawn in his presence. He would contend that the age of the victim was never challenged and as on the date of the incident, admittedly the victim is aged about hardly 11 years and if a sexual harassment is committed on a child below 12 years, it is an aggravated sexual assault as per definition of Section 9(m) of the of POCSO Act. He would contend that the learned Special Judge has appreciated the oral and documentary evidence in a proper perspective and rightly convicted the accused by imposing reasonable sentence. He would also submit that the accused has tried to take advantage of the innocence of 9 Crl.A.No.200164/2018 the child and it has serious impact on the tender mind of the child and hence, he would contend that no leniency is warranted and sought for dismissal of the appeal.
12. Having heard the arguments and perusing the records, now the following point would arise for my consideration:
"Whether the judgment of conviction and order of sentence passed by the learned Special Judge suffers from any perversity, illegality or erroneous so as to call for any interference by this Court?"
13. The victim is examined as PW.2 and she was aged about 11 years at the time of the incident. Ex.P7 is a material document issued by the headmaster of the school, wherein, the date of birth of the victim is given as 08.12.2004. The incident is alleged to have taken on 04.04.2015. Hence, it is evident that the victim was less than 11 years as on the date of the alleged incident. Section 7 of the POCSO Act deals with sexual assault, wherein, it is 10 Crl.A.No.200164/2018 stated that whoever with sexual intent touches any body parts of the child or does any other act with sexual intentions which involves physical contact without penetration is said to have committed sexual assault. Section 9 of the POCSO Act deals with aggravated assault and Section 9(m) of the POCSO Act defines that whoever commits sexual assault on a child below 12 years is said to have committed aggravated sexual assault. In the instant case, Ex.P7 establishes that the child is a minor aged about less than 11 years.
14. Ex.P7 is corroborated by the evidence of PW.7. In the entire defence, the accused has not disputed the age of the victim child or her date of birth. The victim was got examined herself as PW.2 and she has also claimed her age as 10 years and this statement was never challenged or disputed by the accused. Hence, on analyzing the entire evidence, it is evident that the victim is between 10 to 11 years when the alleged incident has taken place. 11 Crl.A.No.200164/2018
15. The complainant is examined as PW.1 while the victim is examined as PW.2 and the other eyewitness is examined as PW.3. PW.4 is a circumstantial witness, who has seen the accused running from the dilapidated teachers' quarters. The entire case of the prosecution based on the evidence of these witnesses. PW.5 claims to have intimated the complainant and PW.3 regarding the accused taking the child along with him towards dilapidated teachers' quarters, but he has turned hostile.
16. But at the same time, it is to be noted here that there is no defence of the accused as to why a false complaint was lodged against him. There is no animosity between the accused and the complainant and question of falsely implicating him does not arise at all. The offence alleged is aggravated sexual assault on the child and it is covered under Section 9 of the POCSO Act and punishable under Section 10 of the POCSO Act. Under Section 29 of the POCSO Act, there is a presumption of committing the offences unless the contrary is proved. Hence, the negative 12 Crl.A.No.200164/2018 burden is casted on the accused pertaining to the offence under Section 9 of the POCSO Act. However, in the entire defence, the accused did not disclose the reasons for false prosecution or false implication.
17. The complainant is the father of the victim and in his evidence, he deposed that on 04.04.2015 around 9.00 a.m. on Saturday, he sent the victim for buying a coconut and even after long time when the victim did not come back, he went on his motorcycle in search of her and on the way to bus-stand, PW.3 accompanied him and both of them searched the victim. He further deposed that when they were passing near garage of the accused, PW.5 who was in the garage informed that the accused took the victim towards dilapidated teachers' quarters. Then, he and PW.3 went towards dilapidated teachers' quarters and when reached there, they heard cry of the victim and found that the accused was abusing her and biting her chin and on seeing them, he fled from the spot. He further deposed that 13 Crl.A.No.200164/2018 he secured the information from the victim and lodged the complaint as per Ex.P1.
18. PW.1 was cross-examined at length, but nothing was elicited so as to impeach his evidence except minor contradictions regarding the victim standing and is not lying on the ground etc. But, his evidence is very specific and Ex.D1, which was got marked in the cross-examination of this witness does not go to the root of the case and it has no relevancy. Further, the evidence of PW.1 again corroborated by the evidence of PW.3.
19. The victim herself was examined as PW.2 and she is well acquainted with the accused as admittedly the accused is running a garage at a little distance from her house. She deposed that while she used to go to school, the accused used to give her chocolates and asked not to disclose this matter to her father, but she had informed this matter to her mother. She also deposed that on Saturday she was proceeding to buy a coconut, at that time, the 14 Crl.A.No.200164/2018 accused came there, offered a chocolate and called her. When she refused, the accused carried her on his shoulder to a dilapidated teachers' quarters, made her lay her down, fell on her body and tried to remove her under garments by uttering abusive words by putting cloth in her mouth. Her evidence further discloses that at that time her father and PW.3 came their and she was rescued and she narrated the incident to them. She was cross-examined at length, but her evidence was not impeached. However, in her statement under Section 164 of Cr.P.C., she has not narrated all the details regarding accused taking her to the dilapidated teachers' quarters etc., but disclosed only gist. Since there is a presumption under Section 29 of the POCSO Act, it is for the accused to rebut the same and the accused has simply denied the case of the prosecution without making any attempt to rebut the same.
20. PW.4 is a circumstantial witness and he deposed regarding he witnessing the accused while jumping from the 15 Crl.A.No.200164/2018 compound wall of dilapidated teachers' quarters and running away. His evidence corroborates the case of the prosecution.
21. PW.5 is an eyewitness, who has seen the accused carrying the victim child to dilapidated teachers' quarters and reporting it to the complainant, but he has turned hostile. Since he is working in the garage of the accused, it is quite natural that he is interested in accused and did not support the case of the prosecution.
22. PW.8 and 9 have deposed regarding drawing of spot mahazar and though their evidence is not supporting the case of the prosecution regarding seizure of cloths belonging to the victim, it does not have any much relevancy since there is no penetration. But, their evidence is consistent regarding drawing of spot mahzar at the instance of the victim girl - PW.2.
23. PW.10 is the Tahsildar, who has issued the caste certificate. The other witnesses are formal witnesses, who are medical officers as well as Investigating Officers. But, 16 Crl.A.No.200164/2018 the evidence of PWs.1 to 4 is consistent and establishes that the accused has committed aggravated sexual assault on the victim girl. Hence, the offence under Section 10 of the POCSO Act has been proved by the prosecution.
24. The accused was also prosecuted for the offence under Section 3(1)(xi) of the SC/ST (POA) Act, which defines if a person assaults or uses force to any woman belonging to a scheduled caste or scheduled tribe with intent to dishonour or outrage her modesty. Section 3(1)(xi) was amended by inserting Section 3(1)(w)(i) of the SC/ST (POA) Act, wherein it is asserted that the intention should be there. But, in the earlier prior to amendment, no such intention was mandated. The amendment was given effect from 26.01.2016. This offence was committed on 04.04.2015 when the provisions of Section 3(1)(xi) of the SC/ST (POA) Act (old) are prevailing and under the old provision, outraging modesty of a woman belonging to a scheduled caste itself was an offence, which is punishable with imprisonment, which shall 17 Crl.A.No.200164/2018 not be less than six months, but which may be extend to five years and with fine.
25. The evidence on record clearly discloses that the victim was aged about 10 years and 3 months. From the evidence of PW.10 coupled with Ex.P10, it is evident that the victim belongs to scheduled caste, which is also not under challenge. The evidence on record discloses that the accused has committed sexual assault on the victim, who belongs to scheduled caste and thereby the provisions of Section 3(1)(xi) of the SC/ST (POA) Act are attracted and are proved.
26. The other allegations of the prosecution are in respect of the offence under Section 504 of IPC. Section 504 of IPC reads as under:
"504. Intentional insult with intent to provoke breach of the peace. - Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the 18 Crl.A.No.200164/2018 public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
27. As per Section 504 of IPC, if a person intentionally insults and thereby provokes to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace then the said offence is attracted. But, in the instant case, the abusive words were used against the victim, who was aged about 10 years. When the victim is aged about 10 years, question of giving provocation to her by using such words does not arise at all. Hence, I am of the considered opinion that the offence under Section 504 of IPC is not at all proved by the prosecution.
28. However, the evidence on record clearly establish that the prosecution is able to prove the guilt of the accused for the offences under Section 3(1)(xi) of the SC/ST (POA) Act and Section 10 of the POCSO Act. The presumption under Section 29 of the POCSO Act is in favour of the 19 Crl.A.No.200164/2018 prosecution and the accused is required to rebut the said presumption, but he has not made any attempt to rebut this presumption and his case was formal denial and there is no explanation for his false implication as asserted by him. Hence, the oral and documentary evidence clearly establish that the prosecution is successful in proving the guilt of the accused for the offences punishable under Section 3(1)(xi) of the SC/ST (POA) Act and Section 10 of the POCSO Act. However, the prosecution is not able to establish the guilt of the accused for the offence under Section 504 of IPC.
29. Further, the learned Special Judge has also imposed a proper sentence for the offences under Section 3(1)(xi) of the SC/ST (POA) Act and under Section 10 of the POCSO Act considering the mentality of the accused in exploiting the innocent child to satisfy his lust and hence, the sentence portion in this regard does not call for any interference.
20 Crl.A.No.200164/2018
30. Considering these facts and circumstances, the point under consideration is partly answered in the affirmative so far as it relates to the offence under Section 504 of IPC alone. Accordingly, the appeal needs to be allowed in part so far as it relates to the offence under Section 504 of IPC and rest of the judgment of conviction and order of sentence needs to be confirmed. Hence, I proceed to pass the following:
ORDER
a) The appeal is allowed in part.
b) The judgment of conviction and order of sentence passed by the learned II Additional Sessions Judge, Kalaburagi in Special Case (POCSO) No.18/2015 dated 22.09.2018 so far as it relates to the offence under Section 504 of IPC is set aside.
c) Accused/appellant stands acquitted for the offence under Section 504 of IPC.
21 Crl.A.No.200164/2018
d) However, the judgment of conviction and order of sentence passed by the learned Special Judge in Special Case (POCSO) No.18/2015 for the offences punishable under Section 3(1)(xi) of SC/ST (POA) Act and under Section 10 of the POCSO Act stand confirmed and the appeal for the said offences stands dismissed.
e) Send back the records to the Trial Court along with copy of this judgment with a direction to the learned Special Judge to secure the presence of the accused for serving the sentence.
Sd/-
JUDGE SRT