Karnataka High Court
The State Of Karnataka vs J Kiran @ Key on 2 November, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.1082/2015
C/W
CRIMINAL APPEAL No.723/2015
CRL.A. No.1082/2015
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY THE
NARSIMHARAJA POLICE STATION
MYSURU DISTRICT-570007. ...APPELLANT
(BY SRI VIJAYKUMAR, ADDITIONAL STATE PUBLIC
PROSECUTOR)
AND:
J. KIRAN @ KEY
S/O S. JAYACHANDRA,
AGED ABOUT 33 YEARS,
R/O NO.38, 3RD CROSS,
SIDDURAIAH'S HOUSE,
RBI POST, OLD KESARE,
MYSURU-570001. ...RESPONDENT
(BY SRI B. LETHIF, ADVOCATE )
...
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
377 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO ALLOW THIS CRIMINAL APPEAL AND MODIFY
THE SENTENCE OF IMPRISONMENT PASSED BY THE VI
ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU IN
S.C. No.139/2013, DATED 24.4.2015 BY IMPOSING
ADEQUATE AND MAXIMUM SENTENCE AGAINST THE
RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 354 & 376 OF INDIAN PENAL CODE AND
UNDER SECTION 10 READ WITH SECTIONS 9 AND 6 R/W
5(L) & (N) OF THE PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES (POCSO) ACT 2012, IN THE INTEREST
OF JUSTICE.
CRL.A. No.723/2015
BETWEEN:
J. KIRAN @ KEY
S/O S. JAYACHANDRA
AGED ABOUT 33 YEARS
R/AT NO.38, 3RD CROSS,
SIDDURAIAH'S HOUSE,
R.B.I POST, OLD KESARE
MYSURU-570001.
MYSORE TALUK & DISTRICT . ...APPELLANT
(BY SRI B. LETHIF, ADVOCATE )
AND:
THE STATE OF KARNATAKA
BY NARASIMHARAJA POLICE
MYSURU DISTRICT-577001. ...RESPONDENT
(BY SRI VIJAYKUMAR, ADDITIONAL STATE PUBLIC
PROSECUTOR)
...
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE JUDGMENT ORDER OF
3
CONVICTION AND SENTENCE DATED 24.4.2015 AND
30.4.2015 PASSED BY THE VI ADDITIONAL DISTRICT AND
SPECIAL JUDGE, MYSURU IN S.C. No.139/2013 AND
ACQUIT THE APPELLANT, IN THE INTEREST OF JUSTICE
AND EQUITY.
THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, B.VEERAPPA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the inadequacy of sentence, the State has filed Criminal Appeal No.1082/2015 for enhancement of sentence and the accused has filed Criminal Appeal No. 723/2015 to set aside the sentence against the impugned judgment dated 24.4.2015 and order of sentence dated 30.4.2015 made in S.C.No.139/2013 on the file of the VI Additional District and Special Judge, Mysuru sentencing the accused to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- in default of payment of fine to undergo further imprisonment for 2 months for the offence punishable under Section 354 IPC; rigorous imprisonment for ten years and to pay a fine of Rs.15,000/- in default of payment of fine to undergo 4 further imprisonment for 6 months for the offence punishable under Section 376 IPC; rigorous imprisonment for five years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo further imprisonment for 2 months for the offence punishable under Section 10 r/w Section 9 of the Protection of Children from Sexual Offences (POCSO) Act, 2012; and rigorous imprisonment for ten years and to pay a fine of Rs.15,000/- and in default of payment of fine to undergo further imprisonment for 6 months for the offence punishable under Section 6 r/w Section 5(L) and (N) of the POCSO Act, 2012 with a substantive clause that all the sentences to run concurrently.
2. It is the case of the prosecution that the accused being the second husband of P.W.5-Radhika and P.Ws.2 to 4 being daughters of P.W.5, i.e., who were born out of her first marriage with Suresh Bahadur, and when P.Ws. 2 to 5 and accused were living together during the years 2009 to 2012, the accused tried to outrage the modesty of P.W.4-Buelah 5 and committed sexual assault on her and repeatedly committed rape on P.Ws.2 and 3, who were under the age of 18 years and thereby committed the offences punishable under Sections 354 and 376 of IPC and Sections 10 r/w 9 and 6 r/w 5(L) and (N) of POCSO Act stated supra.
3. It is further case of the prosecution that on 5.2.2013 at about 6.05 p.m., P.W.1-N.T. Venkatesh being the Chairman of the Child Welfare Committee went to the police station along with P.Ws.2 to 4 and filed a written complaint, on the basis of which a case was registered in Crime No.30/2013, FIR was prepared, statements of P.Ws.2 to 4 were recorded and thereafter, the accused was arrested. After investigation, the investigating officer filed the final report to the jurisdictional Court.
4. The III Additional Civil Judge and JMFC., Mysuru took cognizance of the offences, registered a case in C.C.No.826/2013 and committed the case to the Court of Sessions.
6
5. The learned II Additional District and Sessions Judge, Mysuru framed the charges against the accused and in view of the provisions of POCSO Act, transferred the case to the learned Principal District and Sessions Judge, Mysuru. Therefore, again fresh charges were framed against the accused for the offences punishable under Sections 354 and 376 of IPC and Sections 10 r/w 9 and 6 r/w 5(L) and (N) of POCSO Act which were read over to him, and since he pleaded not guilty and claimed to be tried, he was tried in Session Case No.139/2013.
6. In order to prove its case, the prosecution examined 19 witnesses - P.Ws.1 to 19, got marked material documents Exs.P.1 to 27 and material objects - M.Os.1 to 36. On behalf of the defence, the accused got marked Exs.D.1 and D2. After completion of the evidence of the prosecution witnesses, the statement of the accused under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.') was recorded. The accused denied all the incriminating 7 evidence adduced by the prosecution against him, but he has not led any evidence.
7. The learned Sessions Judge based on the aforesaid material on record framed four points for consideration. After considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution has proved beyond all reasonable doubt that accused with an intention to outrage the modesty of P.W.4, who being minor girl during the year 2007 to 2012 has repeatedly harassed sexually and there by has committed an offence punishable under Section 354 of IPC; during the year 2012 and thereafter he being step father of P.W.4 Buelah, who is a minor girl, repeatedly harassed her with sexual assault many times and thereby committed an offence punishable under Section 10 r/w 9 of POCSO Act; further has repeatedly committed rape on P.Ws.2 and 3 which is an offence punishable under Section 376 of IPC and also by repeatedly committing penetrative sexual assault on them, has committed an 8 offence punishable under Section 6 r/w Section 5(L) and (N) of POCSO Act. Accordingly, by the impugned judgment dated 24.4.2015 and order of sentence dated 30.4.2015, the learned Sessions Judge imposed sentence as stated supra. Hence, the present appeals are filed one by the State for enhancement of sentence imposed against the accused and another by the accused for his acquittal.
8. We have heard the learned Counsel for the parties and perused the entire material including original records carefully.
9. Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the appellant- State in Criminal Appeal No.1082/2015 contended that the impugned judgment and order of sentence imposing the accused to undergo rigorous imprisonment for 10 years and 5 years for the offences punishable under the POCSO Act is inadequate and disproportionate to the gravity of offence committed by the accused. He would further contend that considering the evidence of P.Ws.2 9 to 4, who were minors and under the care and custody of the accused as he was the step father and the fact that when they were the victims of circumstances, the accused having committed barbaric act on them, when they being his daughters, the learned Sessions Court ought to have imposed sentence for life on the accused.
10. The learned Additional SPP would further contend that the offence falling under Section 376 of IPC is punishable for imprisonment of either description for a term not less than 10 years or fine, but the learned Sessions Judge has committed a grave error in sentencing the accused for rigorous imprisonment for ten years for the offence under Section 376 of IPC and under the POCSO Act for a period of five years and ten years. He would further contend that the material on record clearly depicts the barbaric act of accused committing repeated rape on all the three sisters, which cannot be tolerated and hence, the accused is liable to be punished for life imprisonment as it is an heinous crime against his own daughters. Therefore, he sought 10 to allow the appeal filed by the State by enhancing the sentence. He would further contend that the appeal filed by the accused for acquittal is without any basis and the same is liable to be dismissed with exemplary costs.
11. Per contra, Sri B. Lathif, learned Counsel for the accused-appellant in Criminal Appeal No.723/2015 contended that the impugned judgment and order of sentence passed by the learned Sessions Judge sentencing the accused for a period of 10 years for the offences punishable under Section 376 of IPC and Section 6 r/w 5(L) and (N) of the POCSO Act is erroneous and contrary to the material on record and hence, the same cannot be sustained. He would further contended that since P.Ws.2 to 4, who are alleged victims and P.W.5 - the mother of the victims, have turned hostile and even there is absolutely no material against the accused, the learned Sessions Judge has erred in convicting him which is not just and proper. He would further contend that in view of fact that the 11 reports - Exs.P.19 to 21 of the doctor P.W.8 with regard to medical examination of P.W.2 to 4 clearly indicates that there is no evidence of forcible sexual intercourse or injury on the private part of the victim girls, the appreciation of evidence by the Court below is illegal and contrary to the facts of the case.
12. The learned Counsel for the accused further contended that the learned Sessions Judge has committed a serious error in convicting the accused relying upon the evidence of the highly interested witnesses - P.W.1, 9 and 13 since their evidence suffer from full of material contradictions and omissions, and the case of the prosecution based on their evidence cannot be believed. He would further contend that the prosecution has suppressed the actual incident and has come with a false and concocted story that the accused has committed the offences and the learned Sessions Judge without appreciating the case of the prosecution in the light of human probabilities and perspective manner has accepted the same and has come to the 12 wrong conclusion holding against the appellant even without assigning proper and cogent reasons. Therefore, he sought to allow the appeal filed by the accused and dismissed the appeal filed by the State.
13. In view of the rival contentions urged by the learned Counsel for the parties, the points that arise for our consideration are:
"i) Whether the State has made out a case to further enhance the sentence imposed against the accused in the facts and circumstances of the present case?
ii) Whether the accused has made out a case to set aside the impugned judgment and order of conviction and acquit him of all the offences as alleged in the charges framed in the facts and circumstances of the present case?"13
14. We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record including the original records carefully.
15. In order to re-appreciate the entire material on record it is relevant to consider the evidence of the prosecution witnesses:
i) P.W.1 - N.T. Venkatesh, who is the President of the Child Welfare Committee, Mysuru while lodging the complaint to the jurisdictional Police as per Ex.P.7 has stated that there was sexual assault on P.Ws.2 to 4 which is based on their complaint made before P.W.1 and has given his evidence supporting the case of the prosecution.
ii) P.Ws.2 to 4 - who are victims have deposed denying the allegations made in the complaint and they have not given any statement either before P.W.1 or the Police as per Exs.P.1 to 3 as well as conducting spot 14 mahazars. They have turned hostile to the case of the prosecution.
iii) P.W.5 - Smt. Radhika, the mother of the victims also has turned hostile to the prosecution case.
iv) P.Ws.6 and 7 - Shivamallu and Sidduraiah, who are panch witnesses to the spot mahazars -
Exs.P.8, 9, 13 and 15 also have turned hostile.
v) P.W.8 - Dr. Chandrakanth, who examined the victims - P.Ws.2 to 4 and has issued Medical Certificates Exs.P.19 to 21, has supported the prosecution case.
vi) P.W.9 - Smt. V. Pushpa Nayak, who was the Counselor of the Students at Balakiyara Balamandir has deposed supporting the prosecution case.
vii) P.Ws.10 and 11 - Sri V. Divakar Rao and Sri Madesha, who are the panch witnesses to the spot mahazars Exs.P.12 and 13 have turned hostile. 15
viii) P.W.12 - Sri Chandrashekar, who was the Child Development Planning Officer has deposed that on 23.1.2013 between 10.00 and 10.15 a.m. as he received information that there was a complaint with regard to child marriage at old Kesare, he visited the spot and saved the child (Deepika). He then shifted her to Balakiyara Bala Mandira at Mysuru and has supported the prosecution case.
ix) P.W.13 - Smt. Priya, who was the Social Worker in the Special Juvenile Police Unit has deposed that she had accompanied P.W.12 - Child Development Officer to the house of P.W.2 and had enquired with P.W.2 that whether there was arrangement of her marriage. She has deposed about the accused having accepted his sexual assault on P.Ws.2 to 4 and has supported the prosecution case.
x) P.W.14 - Smt. S. Sheela, the Assistant Sub- Inspector of Police in the Special Juvenile Police Unit has deposed that she along with other Officers had visited the house of the victim girls and brought them to 16 the Office. Thereafter, she had arrested the accused and handed over him to the N.R. Police Station. She has also supported the case of the prosecution.
xi) P.W.15 - Prasanna Kumar G.S., who was the Police Constable of the Special Juvenile Police Unit has deposed that he had accompanied the Child Development Planning Officer - P.W.12 while going to the house of the victims and has supported the prosecution case.
xii) P.W.16 - Shivaprakash T.N., who was the Police Constable has deposed that he had carried the report to the Counselor, statement of P.W.5-Radhika, statement of the victims and confession statement of the accused as per Exs.P.2 to 5, 23 and 24 to the N.R. Police Station and has supported the prosecution case.
xiii) P.W.17 - R. Purushotham, who was the Police Constable, has deposed that on 6.2.2013 he had taken the accused to the doctor for medical examination and thereafter brought him back to the Police Station. 17
xiv) P.W.18 - Smt. Dhanalakshmi, the Assistant Sub-Inspector of Police and witness has deposed that on 5.2.2013 at 6.00 p.m. she had shifted P.Ws.2 to 4 to Balakiyara Balamandira from the Police Station. On 6.2.2013 she had produced them before P.W.19 - The Assistant Commissioner of Police, Child Welfare Committee and thereafter, as per the direction, she had produced them for medical examination at JSS Medical College and again on 7.2.2013, 8.2.2013 as well as on 9.2.2013 as per the direction of P.W.19, she had produced the victims before the Police Station and thereafter, she had dropped them to the Balakiyara Balamandir. She has supported the case of the prosecution.
xv) P.W.19 - Dhananjay, the Assistant Commissioner of Police, who was the investigating officer, who conducted the investigation has deposed that on the basis of the complaint Ex.P.7 lodged by the mother of the victim girls, he had registered a case in Crime No.30/2013 and had sent the FIR to the Court as 18 Ex.P.27, recorded the confession statement of the accused as per Ex.P.5 and has filed the final report.
16. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge has recorded a finding that the accused had committed sexual intercourse on P.Ws.2 and 3, who were minor girls and outraged the modesty of P.W.4 by aggravating sexual assault on her. Further the learned Sessions Judge has recorded that medical examination of P.Ws.2 and 3 clearly depicts that they were subjected to sexual intercourse which is corroborated with the contents of Ex.P.3, 4 and 6. Ex.P.26 - RFSL report discloses the presence of seminal stains were not detected in item Nos.1 to 6, 8, 9, 13 to 23 and spermatozoa in article Nos.10, 11, 26, 27, 32 and 33. Since P.Ws.3 and 4 did not recollect the last instance of sexual intercourse and clothes worn at the time of examination were not the same which were worn at the time of sexual intercourse, there was no presence of seminal stains and spermatozoa in item Nos.1to 36. 19 The statements of P.Ws.2 to 5 as per Exs.P.11, 14, 16 and 17 recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure is in consonance with the contents made in FIR. During the course of cross-examination by the Public Prosecutor, the statement recorded under Section 161 of Cr.P.C., by the investigating officer was confronted to P.Ws.2 to 5, Ex.P.5 which is the confession of the accused corroborated with the case of the prosecution. The medical examination of the accused showed that there was nothing to suggest that he was incapable of performing sexual act. P.W.1 has given his evidence regarding filing of complaints by P.Ws.2, 3 and 5 as per Exs.P.3, 4 and 6 respectively. The learned Sessions Judge has further recorded a finding that the Official act of the Investigating Officer cannot be doubted unless and until it is brought on record to show that he had any axe to grind against the accused and he had acted partially. P.Ws.2 to 5 have turned hostile in order to shield and safeguard the accused which is against to their own complaint - Exs.P.3, 4 and 6 respectively 20 before the Child Welfare Committee and the same were in consonance with Ex.P.5 which is an extra judicial confession of the accused which is true, voluntary and corroborative. Accordingly, the learned Sessions Judge has proceeded to pass the impugned judgment and order of conviction against the accused.
17. On re-appreciation of the entire material on record, it is an admitted fact that P.W.5 - the mother of the victims - P.Ws.2 to 4 joined the accused and they were living together since 2007 to 2012. It is the specific case of the victim girls before P.W.1 - N.T. Venkatesh, President, Child Welfare Committee that the accused - step father of the victims had subjected them (victim girls) to sexual intercourse. He had started to sexually abuse P.W.2 when she was studying in V Standard when she was totally unknown about sexual acts. She has further stated that he used to undress himself and her; when she tried to escape, he used to drag her and proceed till intercourse. Later, he used to shut her mouth by buying whatever she wanted. He did 21 this with her repeatedly may be about three to four times per week since six years. She came to know from her sister Chandini -P.W.3, that he was doing the same to her also.
18. As per the letter given by P.W.3 - Chandini to P.W.1 as per Ex.P.4, she has stated that her step father used to force her to sleep with him and physically treated her badly, undressed her and had intercourse. He used to tell her not to reveal anything to her mother and then he would give her Rs.5/- and sometimes brought foodies like Gobi Manchurian. He had intercourse with her not less than three to four times in a week. He used to sexually abuse her in her mother's absence like when she had gone to beauty parlour or out of home or when she was asleep.
19. Based on the aforesaid statements, P.W.5 - Radhika, the mother of the victims lodged a complaint before the jurisdictional police on 5.2.2013, on the basis of which, a case in Crime No.30/2013 was registered for the offences as stated supra.
22
20. It is also relevant to state at this stage that the accused has made a statement dated 5.2.2013 as per Ex.P.5 before the Commissioner, Women and Child Development Department, Mysuru, admitting that he was physically misbehaving and having intercourse with the victims for about two to three times for demonstrating good and evil to them; now he had realized that what he did was not correct in God's sight and also in law. He has further stated that he had married Radhika after recovery of health in the month of August, 2006; she was admitted to Gopal Gowda Nursing Home for consuming poison i.e., "Attempt to Suicide" knowing that she had three female kids, whose future was insecure and homeless; now he has realized his crime and offence after taking counseling from the Woman and Child Development Department, he has pleaded to give him an opportunity to correct his wrong doing and to start living a repented life with his wife Radhika and to be Good Father to all the three children whom he loves very much. He has assured that he would never repeat in future from that day onwards. 23
21. P.W.9 - Smt. V. Pushpa Nayak, the Student Counsellor in CFTRI School, Mysore has stated that she had received a complaint from P.W.2 seeking protection on the allegation of attempt of forced marriage with one Iyan Abraham through Special Juvenile Police Unit and she was brought to the Balakiyara Bala Mandira, Mysore on 24.1.2013 for counseling. During Counselling, P.W.2 has informed her that her mother was forcing her to marry one Iyan Abraham, a Church Member. On the next day's Counselling session i.e., on 25.1.2013, she informed her that she is in relationship with one Prashanth, who was her P.T.Teacher in the School; So she used to bunk the classes and move with him during school hours outside. When she further questioned her, she has told that there was no physical relationship with him. For confirmation of that, when she spoke to her about referring her for medical examination, she started to tell emotionally that she has an experience of physical relationship with her step father - Kiran. On further enquiry, she told that her 24 younger sister Chandini was also subjected to sexual abuse by her step father and Chandini revealed the same to her in the School. On further enquiry, she has revealed that when they were alone in the house, the accused used to undress himself and sexually abuse her. She has further deposed that when she discussed with P.W.2 deeply, she has revealed about the problems faced by her in the house from her step-father and about he subjecting her even before she attaining puberty and her sisters to sexual abuse when they were residing in Grace Children's Home; She had expressed her fear that something may happen with her youngest sister Buela and during the Counselling, she kept sobbing and she has told that she does not want Buela to suffer the same. In her cross-examination she has specifically volunteered to tell that infact Parashu had told that children at that age may have the tendency to tell lies and they had got to confirm that whether the things as complained had actually happened or not. She has stood corrected that only Parashu was the member 25 of the Child Welfare Committee and not Stanley and he had not met him in connection with this case.
22. She has denied the suggestions that she never denied the suggestions of Mr. Parashu; the children, Radhika, accused and others have not stated such things before him; whatever she has stated in Exs.P.2, 23 and 24 are of her own imagination; she coercing the children stating that their parents would be sent to lock-up. Despite coercion, the children have not said anything to him; At the time of counseling except her and respective child, no other person was present; She was not alone and there were two women and they three coerced the children. Further she has also denied the suggestions that they were in the habit of masturbation. She has deposed that she enquired with PW-2, whether she has revealed about the overacts of the accused to her friends, for which she has told that, except her mother, she has not revealed to anybody else. She has recorded in her report only the part of the incident which she has revealed to her mother. She has 26 also denied the suggestion that she is giving the evidence that the accused told that she conducted in that manner with children only to demonstrate to them, how the others will abuse is false. She has further denied the suggestions that the said statement was her own imagination; In her report, she has not stated that when PW-2 asked her to look into her eyes and deny the suggestions, she has admitted the allegations and she has voluntarily said that all those things have taken place before CWC during Court proceedings and therefore she has not mentioned that in the report. She has further denied the suggestions that the children were scared of her; and for that reason, they have not given any statement before her; She is giving false report at the behest of Parashu and Others; and for her personal benefit, she has victimized the accused.
23. P.W.13 - Priya, Who was Social Worker in the Special Juvenile Police Unit, has deposed that on 5.2.2013 herself and C.W.21 attended the Child Welfare Committee where accused and P.W.2's mother were 27 there. P.W.2 has given her statement before the Committee about the sexual assault meted out to her by the accused. When the Committee enquired the accused, he has pleaded his guilt. Accordingly, P.W.1 lodged a complaint against the accused and in turn, accused was taken into custody. Nothing has been elicited in her cross-examination and she has supported the case of the prosecution.
24. P.W.8 - Dr. Chandrakanth, the Associate Professor, Department of Forensic Medicine, JSS Medical College, Mysore has deposed that on 6.2.2013 he received a requisition from the Investigating Officer to examine P.Ws.2 to 4, who had come with the history of sexual assault and he has given his reports as follows:
(i) On examination of P.W.2 - Deepika aged about 17 years, she had furnished the history that the accused was staying with them since her Sixth Grade;
the accused had sexually molested her several times and there were attempts of sexual intercourse. The 28 history regarding the penetration is inadequate as she is unaware of the act. She could not recollect the last instance of sexual intercourse. On local examination, he has given the findings as follows:
"i) The labia Majora and Minora were
separated.
ii) Hymen old healed tear at 3° and 8° clock positions."
After examining P.W.2, he has given his opinion that P.W.2 has been subjected to sexual intercourse and his report marked as Ex.P.19 is given to the investigating officer and his signature is marked as Ex.P.19(a).
(ii) On examination of P.W.3, she has furnished the history that accused was staying with them since five to six years; she had been sexually molested several times and there were attempts of sexual intercourse. The history regarding penetration was inadequate as she was unaware of the act. The last instance of sexual intercourse was three months back. On physical examination, he has given his findings as follows: 29
"i) Well built and nourished.
ii) Multiple superficial parallel transverse partially healed incised wounds over the front of lower 1/3rd of left forearm were found during examination They indicate that she was psychologically disturbed."
On her dental examination, the victims age was more than 14 years and his findings were as follows:
"i) The labia Majora and Minora were separated.
ii) Hymen tear at 3° and 9° clock positions."
He has given his opinion that she was not subjected to sexual intercourse and his report is at Ex.P.20 which was given to the investigating Officer and his signature is marked as Ex.P.20(a).
(iii) On 6.2.2013, he examined P.W.4, aged 11 years and he found no external injuries on her body. 30 The victim has furnished the history and she was not aware of the alleged history. The clothes worn at the time of examination were not the same which were worn at the time of the alleged incident. The details of those clothes are noted in his report. There were no external injuries on her physical examination. On dental examination, her age was more than 11 years. He collected and sent the materials of examination noted in his report to the investigating officer for the purpose of sending to FSL, but his hospital did not receive the opinion from the FSL. He has given his opinion that there is no evidence of sexual intercourse. He has given his report to the investigating officer as per Ex.P.21 and his signature is marked as Ex.P.21(a). He has denied the suggestions that history mentioned in Ex.P.19 to 21 were given by woman police and social workers; he has not conducted the physical examination of P.Ws.2 and 3; mother of P.Ws.2 to 4 had not accompanied them for any examination. Further, he has admitted the facts that if P.Ws.2 and 3 have subjected themselves for masturbation, there are chances of findings which he 31 found during their examination; due to masturbation practice, there is likelihood of hymen tear as recorded by him in respect of P.Ws.2 and 3, but he has denied the suggestion that P.Ws.2 and 3 have not given any history before him and he having recorded such at the behest of the Police and social workers. Nothing has been elicited in his cross-examination to disbelieve his evidence.
25. Based on the aforesaid evidence of P.Ws.1, 8, 9 and 13 and the medical reports Exs.P.19 to 21, it clearly depicts that the accused had committed sexual abuse on P.Ws.2 to 4 as per their own statement and accused made before the Commissioner for Women and Child Development, Mysuru as per Exs.P.3 and 4, but very strangely P.Ws.2 to 4 have turned hostile before the Court with regard to accused committing sexual intercourse which may be because they were victims of circumstances. When the statements are given by the victims before the responsible Officer - P.W.1 in writing and accused also having made confession - Ex.P.5 32 before P.W.1, merely because the victims - P.Ws.2 to 4, who were victims of circumstances have turned hostile and concealed the truth before the Court, which was the sole intention of shielding and protecting the accused for the reasons best known to them, as they were minors and subsequently, P.W.5 - mother of the victims complainant, also trying to conceal the material truth as to why they have turned hostile is not forthcoming, but the fact remains that there was sexual abuse since the year 2007 to 2012 and the charge specifically has been framed for the offence of sexual intercourse on P.Ws.2 and 3 by the accused in the year 2012 and thereafter, continuously. Therefore, no benefit could be given to the accused for unfavourable conduct of the victims, who were victims of the circumstances at the hands of the accused as held by the Hon'ble Supreme Court in the case of Paramjeet Singh @ Pamma -vs- State of Uttarakhan reported in AIR 2011 SC 200 and at paragraphs-19, 41 and 42 it is held as under: 33
"19. In Mahesh v. State of Maharashtra [(2008) 13 SCC 271 : (2009) 3 SCC (Cri) 543] this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49) "49. ... If PW 1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for 34 unfavourable conduct of this witness to the prosecution."
41. The witnesses i.e. Ajit Singh (PW 1) and Baljit Singh (PW 2) in their respective depositions have admitted their presence at the place of incident and admitted to suffering those injuries. In their statements under Section 161 CrPC they have also admitted that they suffered the aforesaid injuries at the hands of the appellant. It was at a later stage that they have denied any role of the appellant. Their statements to that effect are not trustworthy for the simple reason that they failed to offer any explanation for why they assigned the said role to the appellant in their statements under Section 161 CrPC and why the appellant had been named by Ajit Singh (PW 1) while lodging the FIR. It is relevant to note that the witnesses, namely, Ajit Singh (PW 1) and Baljit Singh (PW 2) have also deposed that after the incident, a Panchayat was convened and it pardoned the appellant. The version of convening the Panchayat and grant of pardon to the 35 appellant has duly been supported by Gurmit Singh (PW 3) and Satwant Singh (PW 4). Gurmit Singh (PW 3) deposed:
"... it is correct that accused is my cousin. The matter had been compromised in the Panchayat."
Satwant Singh (PW 4) deposed:
"... matter had been compromised in the Panchayat. Panchayat had pardoned Pamma accused."
It is pertinent to mention here that injured Hardayal Singh could not be examined as he died of cancer during the trial.
42. It is evident from the above that the view taken by the courts below, that the eyewitnesses turned hostile because of the decision taken in the Panchayat, pardoning the appellant, does not require any interference.
It is also evident from the above that the said eyewitnesses have no regard for the truth and concealed the 36 material facts from the court only in order to protect the appellant, for the reasons best known to them. Such an unwarranted attitude on the part of the witnesses disentitles any benefit to the appellant, who has committed a heinous crime. The crime had been committed against the society/State and not only against the family and therefore, the pardon accorded by the family and the Panchayat has no significance in such a heinous crime.
26. As already stated supra, P.Ws.2 to 4 are the victims of circumstances at the hands of the accused, but the mere fact that they have turned hostile, is not relevant and does not efface the evidence with regard to sexual assault on them by the accused in view of abundant material evidence available on record as already stated supra. Our view is fortified by the Full Bench judgment of the Hon'ble Supreme Court in the case of Hemudan Nanbha Gadhvi -vs- State of Gujarat reported in 2018 SCC Online SC 1688 wherein at paragraphs 8, 9 and 10 it is held as under: 37
"8. The family of the prosecutrix was poor. She was one of the five siblings. The assault upon her took place while she had taken the buffalos for grazing. Her deposition was recorded nearly six months after the occurrence. We find no infirmity in the reasoning of the High Court that it was sufficient time and opportunity for the accused to win over the prosecutrix and PW-1 by a settlement through coercion, intimidation, persuasion and undue influence. The mere fact that PW-2 may have turned hostile, is not relevant and does not efface the evidence with regard to the sexual assault upon her and the identification of the appellant as the perpetrator. The observations with regard to hostile witnesses and the duty of the court in State v. Sanjeev Nanda, (2012) 8 SCC 450 are also considered relevant in the present context:
"101.....if a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator and every effort should be made to bring 38 home the truth. Criminal justice system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked."
9. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law. Neither the accused nor the victim can be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 and 39 Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34. If the medical evidence had not confirmed sexual assault on the prosecutrix, the T.I.P. and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.
10. It would indeed be a travesty of justice in the peculiar facts of the present case if the appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the appellant in the dock, in view of the other overwhelming evidence available. In Iqbal v. State of U.P., (2015) 6 SCC 623, it was observed as follows:
"15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to 40 adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence."
27. On re-appreciation of the entire material on record, it clearly depicts that the complaint dated 23.1.2013 made by P.W.2 as per Ex.P.1 before the President, Child Welfare Committee and the report - Ex.P.2 of P.W.9; letter, dated 5.2.2013 - Ex.P.3 given by P.W.2, letter, dated 6.2.2013 -Ex.P.4 given by P.W.3 and the complaint made by P.W.4 before the Chairperson, Child Welfare Committee, Mysuru; the extra judicial confession statement of the accused before the Child Welfare Committee, Mysuru - Ex.P.5 before arrest, all corroborate with the evidence of P.Ws.1, 8, 9 and 13 which clearly depict that the accused had subjected the victims P.Ws.2 to 4 to sexual intercourse for more than six years against his daughters. Unfortunately, the 41 complainant - P.W.5 mother of the victims also has died.
28. For the reasons stated above, both the points raised in the present appeals are answered in the negative holding that the State has not made out any ground to further enhance the sentence for the offences made out in the charge memo and the accused has not made out any ground to interfere with the impugned judgment and order of conviction sentencing him for the offences stated supra in exercise of appellate powers under the provisions of under Sections 377 and 374(2) of the Code of Criminal Procedure respectively. Accordingly, we pass the following:
ORDER
i) Criminal Appeal No. 1082/2015 filed by the State and Criminal Appeal No. 723/2015 filed by the accused are hereby dismissed being devoid of merits; and 42
ii) The impugned judgment dated 24.4.2015 and order of sentence dated 30.4.2015 made in S.C.No.139/2013 on the file of the learned VI Additional District and Special Judge, Mysuru for the offences stated supra are hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Nsu/-