Karnataka High Court
Pradeepkumar M vs The State Of Karnataka on 16 August, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC:29025
CRL.P No. 4899 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 4899 OF 2023
BETWEEN:
PRADEEPKUMAR M
S/O MALLASHETTY
AGED ABOUT 25 YEARS
R/AT NO BILIJAGALI MOLE VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT-571 463.
...PETITIONER
(BY SRI. J. KIRAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
HANUR POLICE STATION
Digitally signed by B REPRESENTED BY STATE PUBLIC PROSECUTOR
K
MAHENDRAKUMAR HIGH COURT OF KARNATAKA
Location: High Court
of Karnataka AT BENGALURU-560 003.
2. POORNIMA C
INCHARGE OFFICE
CHILD WELFARE COMMITTEE
CHAMARAJANAGARA OFFICE
KOLLEGALA TOWN
CHAMARAJANAGAR-571439
KARNATAKA .
3. SMT. KADAMBARI
AGED MAJOR
D/O SHIVANAGA
UPPARADODDI VILLAGE
-2-
NC: 2023:KHC:29025
CRL.P No. 4899 of 2023
HANUR TALUK
CHAMARAJANAGAR-571439
KARNATAKA .
...RESPONDENTS
(BY SRI. P. THEJESH, HCGP FOR R-1;
SRI SANDEEP LAHARI, ADVOCATE FOR R-3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
QUASHING THE COMPLAINANT DATED 15.12.2021 FILED BY
THE RESPONDENT NO.2 AGAINST THE PETITIONER BEFORE
THE RESPONDENT NO.1 POLICE. THE PETITIONER FURTHER
SOUGHT FOR THE QUASHING OF THE FIR DATED 15.12.2021
IN CRIME NO.165/2021, THE PETITIONER FURTHER SOUGHT
FOR THE QUASHING THE CHARGE SHEET DATED 04.02.2022
FILED BY THE RESPONDENT POLICE BEFORE THE PRL.
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA IN
SPL.C.NO.23/2022 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 363, 376(2)(N), 376(3) OF IPC, SECTION 9 OF THE
CHILD MARRIAGE RESTRAINT ACT 2006, SECTION 5(j)(ii),6 OF
THE POCSO ACT.
THIS PETITION, COMING ON FOR REPORTING
SETTLEMENT, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner-accused who is sought to be prosecuted for the offence punishable under Sections 363, 376(s), (N), 376(3) of IPC, Section 9 of Child Marriage Restraint Act, 2006, Section (j)
(ii), 6 of the Protection of Children from Sexual Offences (amendment) Act, 2019, is before this Court.
2. The case of the prosecution is that, the accused herein kidnapped a minor survivor girl and committed forcible penetrative sexual assault on the girl due to which she became -3- NC: 2023:KHC:29025 CRL.P No. 4899 of 2023 pregnant and delivered a female baby. The accused is sought to be prosecuted solely on the statement of the victim who at the time of her examination before the Doctor has stated that her date of birth as 2.05.2003.
3. Petitioner is in judicial custody and the victim is present before this Court along with the female baby. The parties have filed an application under Section 482 of Cr.P.C. supported by the memorandum of facts stating that the sexual intercourse was with mutual consent and as on the date of the incident, the survivor was a major which is evident from the Age confirmation certificate issued by the Health and Family Welfare Department, District Hospital, Chamarajanagara, at Annexure-G.
4. The Hon'ble Supreme Court in the case of P. Yuvaprakash -vs- State Rep. by Inspector of Police, in Crl.A.1898/2023 at para 19 and 21 has held as follows:
"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was -4- NC: 2023:KHC:29025 CRL.P No. 4899 of 2023 issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor".
This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.
20 xxxxxx
21. In her statement under Section 164 of the Cr. PC, the victim M had deposed that she was in love with the appellant, had consumed poison, and had even been hospitalized because she was adamant to live with the appellant. No doubt, she resigned from her statement. Yet, the medical evidence (deposition of PW-11, Dr. Kavitha) indicated that the victim had a ruptured hymen; there was no external injury at her private parts, and that according to her "48 hours before medical examination there was no -5- NC: 2023:KHC:29025 CRL.P No. 4899 of 2023 evidence to show that she had sexual assault is the opinion given by me." This witness also produced her Notes of examination (Ex. P-11). In view of these facts, this court is of the opinion that the prosecution was not able to establish that there was any penetrative sexual assault as a result of coercion or compulsion on the part of the appellant. Even the High Court recognized this, albeit while reducing the sentence (since, in its opinion, M was a minor at the time), observing that "P.W.3 had gone to the extent of taking poison to commit suicide out of love failure, under enormous pressure, he had accompanied P.W.3, married her and had sexual intercourse with her, both before the marriage as well was after the marriage." From these facts, and the definitions under POCSO Act, especially the definitions of "sexual assault", Sections 5 and 6, read with Sections 350 and 351 IPC, it can be seen that it is only when there is penetrative sexual assault, which implies sexual contact with or without consent of the minor victim, that the offences under the POCSO Act are committed."
5. Age confirmation certificate issued by the District Hospital, Chamarajanagara, clearly depicts that, the victim was aged between 18 to 20 years as on 29.10.2021 and it infers that the victim was aged more than 18 years as on the date of the incident. The victim has categorically stated that sexual intercourse was with mutual consent and her marriage with the accused No.1 was solemnized on 1.7.2021 and from the said wedlock, a female baby is born. If the impugned proceedings are not quashed, the victim and child will be put to great injustice. Further, the continuation of the criminal proceedings will be an abuse of process of law, since the probability of the -6- NC: 2023:KHC:29025 CRL.P No. 4899 of 2023 conviction of the accused is remote and bleak, as the victim in all probability will not support the case of the prosecution.
6. Accordingly, I pass the following:
ORDER
i) The Criminal Petition is allowed;
ii) The impugned proceedings in S.C.No.23/2022 on the file of the Principal District and Sessions Judge, Chamarajanagara is hereby quashed.
iii) The accused herein to be forthwith released from the Judicial custody, if not required in any other case.
Sd/-
JUDGE HR