Karnataka High Court
State Of Karnataka, vs Hassain Basha S/O Hussain Sab on 20 October, 2020
Author: Ravi.V.Hosmani
Bench: Ravi.V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20 T H DAY OF OCTOBER 2020
PRESENT
THE HON 'BLE MR. JUSTICE N . K. SUDHINDRARAO
AN D
THE HON 'BLE MR.JUSTICE RAVI V. HOSMAN I
CRIMIN AL APPEAL N O.100211/2017
BETWEEN :
STATE OF KARNATAKA,
REPRES ENTED B Y THE POLICE INS PECTOR,
RURAL POLICE STATION, HOSA PETE,
THROUGH ADDIT IONAL STATE PU B LIC
PROSECU TOR, OFFICE OF THE
ADVOCATE GENER AL,
HIGH COU RT BU ILDING,
DHARWAD.
...APPELLANT
(B Y SRI V.M.B ANAKAR, ADDL.S.P.P.)
AN D :
HASSAIN B ASHA,
S/O HU SSAIN SAB,
AGED AB OU T: 42 YEARS,
OCC: DRIVER,
R/O: KADDIRAMPURA,
HOSAPETE TALUK,
B ALLARI DISTR ICT.
...RESPONDENT
(B Y SRI SHRIHA RS H A.NEELOPANT, AMICU S CURIAE)
THIS CR IMINAL APPEAL IS FILED UN DER SECTION
378 ( 1) AND ( 3) OF T HE CODE OF CR IMINA L
PROCEDURE, SEEKING T O GRANT LEAVE TO AP PEAL
AND T O SET AS IDE THE JUDGMEN T AND ORDER OF
2 Crl.A.No.100211/2017
ACQU ITTAL DAT ED 03.02. 2017 PASS ED BY THE I ADDL .
DISTR ICT AND SESS IONS JU DGE, B ALLAR I IN
S.C.NO.120 OF 2015 B Y ALLOWING THIS CRIM INA L
APPEAL AND CONSEQUENTLY CONVICT AND SENTENCE
THE RES PONDENT /ACCU SED FOR THE OFFEN CE
PU NISHAB LE UNDER SECTION 376 ( 2)(I) OF I.P.C. AND
U NDER SECTION 4 AND 6 OF PROTECT ION OF
CHILDREN FROM SEX UAL OFFENCES ACT, 2012.
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.120/2015 by the learned I Additional District and Sessions Judge & Special Judge at Ballari ("the Trial Judge" for short), wherein the accused was found not guilty for the offence punishable under Sections 376(2)(i) 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 and set at liberty. Being aggrieved by the said judgment of acquittal, the State has come in appeal.
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2. The notice was served on the respondent-accused but he failed to present or to get represented by a counsel.
3. Sri Shriharsh A.Neelopant, learned counsel was appointed as Amicus Curiae, who has accepted and represented the accused.
4. The substance of the complaint is that, it is lodged by one Bandihal Shankrappa, aged 52 years, son of late Kalakappa residing in-front of Oil Factory, Sanklapur, Ballari Road, Hosapete. He is the native of the address stated above, does a hotel business. He has two wives. He went for second marriage as his first wife could not conceive and he married Danamma, who begot two children male and a female through wedlock.
5. The practice was the complainant used to lock the hotel and sleep in-front of the same and his daughter Huligemma-victim girl aged 5 years was to sleep with him. As usual, on 4 Crl.A.No.100211/2017 05.09.2015 they went to bed, it was 12.30 a.m., he found his daughter Huligemma was not present on the cot. He got frightened, his first wife Huchamma and second wife Danamma started talking and they thought that Huligemma- victim girl might have gone here and there in sleepy eyes. He went near the hotel of his elder daughter and ascertain from Suresh, son-in-law of the complainant was sleeping there, who replied that the Huligemma did not go there and he started shouting the name of Huligemma, crossed the road and went near the thorn fence, there he heard weeping voice of his daughter, one person was found with her, as the complainant and other people went there, the accused left the victim and ran away.
6. The wives of the complainant took the victim. The complainant and his son-in-law- Suresh chased the said person, who was running. On noticing the complainant and his son-in-law 5 Crl.A.No.100211/2017 chasing him, the accused slipped and fell-down, when they caught hold of him, they saw he had sustained bleeding injuries. He was brought to the hotel and enquired, he told his name as Hussain Basha son of Hussain Sab, Kaddirampura village and works at garage of one Khaja Mohiddin @ Tillu Mechanic, Ballari Road, Hosapete.
7. Thereafter they showed the said person to victim and on enquiry, the victim told that the said person lifted and took her to a barren land and he pulled the undergarments and squeezed the private part used for answering first call of nature and touched her on the parts of body. The complainant arranged for looking after the victim and the beat police who came near the hotel advised the complainant to lodge a complaint. It is in connection, the report came to be lodged on 06.09.2015 at about 3.00 a.m., and a case came to be registered in Crime No.140/2015 for the 6 Crl.A.No.100211/2017 offence punishable under Section 376(1) of IPC and Section 8 of POCSO Act.
8. After investigation, final report came to be filed for the offence punishable under Section 376(2)(i) of IPC and Sections 4 and 6 of POCSO Act.
9. The Trial Judge heard and found grounds to frame charge against the accused for the offence punishable under Section 376(2)(i) of IPC and Sections 4 and 6 of POCSO Act, accordingly charge was framed and read over. The accused pleaded not guilty.
10. The prosecution in order to establish the commission of offence charged against the accused, examined its witnesses as under:
PW.1 : B.Shankrappa.
PW.2 : Smt.Danamma
PW.3 : Kalashree
PW.4 : Suresha Bandihal
PW.5 : Ananda
PW.6 : M.Sabaiah.
PW.7 : Kum.Huligemma.
PW.8 : Savitha Sajjan.
7 Crl.A.No.100211/2017
PW.9 : Smt.Uma.
PW.10 : Dr.Mehaboobbi.
PW.11 : Dr.Saleem N
PW.12 : Virupaksha Gouda.
PW.13 : Veerappa K.
PW.14 : Durugappa
PW.15 : Chandrashekhar.
PW.16 : Nagappa H.
The documents produced on behalf of the prosecution are as under:
Ex.P.1 :
Complaint.
Ex.P.1a :
Signatures of PW.1 & 14
Ex.P.2 :
Spot panchanama.
Ex.P.2 a to e :
Signatures of PWs.1, 5 & 14
Ex.P.3 & 4 :
(2) Photos
Ex.P.5 :
Statement of victim
U/Sec.164 of Cr.P.C
Ex.P.5a : Signatures of PW.7
Ex.P.6 : Medico legal examination
report.
Ex.P.6a & b : Signatures of PW.10.
Ex.P.7 : FSL report.
Ex.P.8 : Medical report of accused.
Ex.P.8a to c : Signatures of PW.11.
Ex.P.9 : Sketch.
Ex.P.9a : Signature of PW.13.
Ex.P.10 : FIR
Ex.P.10a : Signature of PW.14.
Ex.P.11 : Sketch
Ex.P.11a : Signature of PW.14
Ex.P.12 : Letter
Ex.P.12a : Signature of PW.14.
Ex.P.13 : Birth certificate.
Ex.P.13a : Signature of PW.15
The accused did not choose to adduce his evidence. No material objects were marked. 8 Crl.A.No.100211/2017
11. With the conclusion of trial, learned Trial Judge found the accused not guilty and acquitted. Being aggrieved by the said judgment of acquittal the State has come in appeal.
12. Learned Additional State Public Prosecutor appearing for the appellant-State submits that, though the accused was caught hold red-handed, the learned Trial Judge, failed to notice it. There was clear identification of the accused attacking the victim-child for sex. Evidence of the complainant-victim and the Doctor corroborated with each other. On the whole, the said important matters were not considered. The accused was running away, after caught hold red-handed in the midnight and thereafter he was handed over to the Police and there is no appreciation of evidence in this connection. Viewed from any angle the material on record suggests that it is a clear case of conviction.
13. Learned Amicus Curiae Sri Shriharsh A. Neelopant appearing for the respondent/accused suggest that there is discrepancy between the complainant and the evidence of the child 9 Crl.A.No.100211/2017 witness. The complainant is full of exaggeration and there is no proper evidence regarding identification of the accused. The statements given before the police and before the Court differ.
14. Among the witnesses who are examined, complainant is one B.Shankrappa- PW.1, who is the father of the victim. He reiterates the contents of complaint and tells that the victim is his daughter and she used to sleep with him in-front of the Hotel and on the date of incident when they were searching the victim girl, who was not present in the midnight, they found her behind the road, they chased and apprehended the accused. It was learnt from the victim that the accused squeezed her private part and she was feeling pain. The accused also had suffered bleeding injuries. He was advised to be taken to police station and to lodge report. Accordingly complaint was filed. He has been 10 Crl.A.No.100211/2017 cross-examined by the learned counsel for the accused the witness denies the suggestions made against the prosecution version.
15. PW.2-Danamma as stated, she is the second wife of PW.1-Shankrappa and the mother of the victim girl. Her evidence is endorsing the version of her husband, which is that the victim used to sleep with her father on cot in-front of the hotel and she also speaks about the absence of the victim. Thereafter the people going in search of her, the complainant, herself and another also going in search of Huligemma, later finding her near the thorn fence behind the road, apprehending her and thereafter the complaint being lodged by her husband. She has also been cross-examined. The further evidence of her is, this witness is specific to the extent that she enquired the victim, who told that the accused made her to lay-down, pulled her undergarments, slept on her and she was feeling pain in her 11 Crl.A.No.100211/2017 private part and on seeing, this witness found wound marks. She denies the suggestions made against her version.
16. PW.3-Kalashree is a hotel worker and at the time of incident she found the complainant and his second wife Danamma were present, it was 12.30 a.m. The complainant and his wife came and told that their child is not seen, they went on searching, later they came back by apprehending the accused so also the victim girl. She has been cross-examined by learned counsel but she denies the suggestions made against her version in the chief examination.
17. PW.4-Suresh Bandihal is the witness, he tells that, about 9 to 10 months prior to the date of evidence, i.e., on 18.07.2016 at about 12.30 a.m., the complainant, his wives Danamma and Huchamma made him to get up from the sleep and asked, whether victim had come and thereafter they went on searching for her and 12 Crl.A.No.100211/2017 secured not only the victim and also the accused. Rest is that, he endorses the version of complainant and his second wife Danamma.
18. PW.5-Anand is the mahazar witness of Ex.P.2-spot mahazar. Sabaiah-PW.6 is the Police Constable who carried certain articles. PW.8- Savita Sajjan is the woman Police Constable who took the victim for medical examination. Uma.K.T is the Woman Police Constable examined as PW.9 who took the victim to Kudligi Court in connection with recording her statement under Section 164 of Cr.P.C.
19. PW.10-Dr.Mehaboobbi is the Senior Specialist in Gynecologist Department, Government Hospital, Hosapete and examined the victim on 06.09.2015. She has found cut and lacerated wound measuring 1.5 cm on her private part between labia majora and labia minora. Another cut injury measuring 3-4 mm on the posterior aspect of fourchete on her private part. 13 Crl.A.No.100211/2017 The rest is, she collected the relevant articles required and she found FSL report and opined that there was possibility of sexual intercourse.
20. PW.11-Dr.N.Saleem has examined the accused and issued the certificate to the effect that the accused was capable to do sexual intercourse.
21. PW.12-Virupaksha Gaddi is the Police Constable, who carried the articles belonging to victim and accused to FSL.
22. PW.13-K.Veerappa is the Assistant Engineer who has prepared the sketch of the place of offence. PW.14-D.Durugappa is the Circle Police Inspector. He has investigated the case and filed charge sheet.
23. PW.15-Chandrashekar is the Senior Health Inspector having issued birth certificate of the victim as per Ex.P.13, as the victim born on 01.01.2010.
14 Crl.A.No.100211/2017
24. The learned JMFC after following the procedure contemplated under Section 164 Cr.P.C. has recorded the statement of the child witness. It is in Kannada. We are acquainted and conversant with Kannada language and we read it and the substance is that, "me and my father were sleeping, one elder brother came and made me to get up and took me to a place where the thorn was present and laid on her and put his hand in the undergarment thereafter he left her on the road and ran away."
25. This victim was also examined on behalf the prosecution as PW.7. He had reminded that this girl is aged about 6 years as on the date of her evidence. The learned Trial Judge has ascertained her capacity to understand question and give her answer, which questions and answers, we have also perused. She was permitted to be examined by the public prosecutor. She tells about the relationship 15 Crl.A.No.100211/2017 between the complainant-father of the victim, her mother Danamma and Huchamma. She tells that she knows the accused on one day when she was sleeping with her father, the accused took her to Sanklapur road and in a place surrounded by thorn. He removed her undergarments (Cheddi) and laid on her because of which she suffered pain in her private part. Thereafter the complainant and Suresh-PW.4 came there and she was taken to hospital and her statement is recognized by her given before the Magistrate, marked as Ex.P.5. She was cross examined. She denies the suggestions that accused was coming to their hotel, she admits another question that she has seen the accused for the first time in the Court, earlier she had not seen him anywhere. She was suggested regarding she was tutored by her parents, she denies the suggestions. She cannot tell the name of the accused, who lifted her. In the circumstances of the case, it is 16 Crl.A.No.100211/2017 necessary to assess the circumstances according to the merits.
26. The victim herein is a child, aged about 5 years at the time of the incident. The narration of the act do not appear to be exaggerated, to that extent we are satisfied. Further the incident was noticed when complainant-father got up and found his daughter was not by his side. As usually sleeping on a cot in-front of their hotel on that day also after closing the hotel, both father and child were sleeping and he got shocked not to see the daughter, at that time searched her in the nearby place and thought that, the victim might have gone in sleepy eyes and they could not get her and there was hue and cry as mother- PW.2-Danamma started shouting her name. Meanwhile, Suresh-PW.4 who is the son-in-law of the complainant also was made to get up and they went on searching her. It was thereafter behind the road, the complainant heard weeping 17 Crl.A.No.100211/2017 voice of her daughter and then found the accused was laying her in barren land surrounded by thorn fence and they recovered the girl. The accused started running, the moment he noticed that he has been chased by the complainant and PW.4-Suresh, the former fell down and he had also suffered bleeding injuries on the head. Thereafter the Beat Police came there at that time, advised the complainant to take the accused to the Police Station, accordingly, it was done. Meanwhile, medical examination of the injured girl was taken up and the injuries on the private part were noticed and they were in accordance with what is stated above.
27. The charge was leveled for the offence punishable under Section 376(2)(i) of IPC and under Sections 4 and 6 of POCSO Act. While appreciating the evidence particularly in respect of the offence against the children, more particularly under POSCO Act, the rational 18 Crl.A.No.100211/2017 capacity of the child has to be kept in mind. Photographic memory or computers precision are not the aspects to be given priority. A child cannot be equated to a seasoned witness who has acquaintance to society atmosphere. She is a girl, besides a child aged five years. In the circumstances, she cannot be expected to give chronological order in narration of the incident.
28. No doubt, she does not tell about the penetrative sexual assault on her by the accused. That goes in uniformity in her deposition, in her statement recorded under Section 164 of Cr.P.C. and also before the Court when she was examined as PW.7. PW.10-Doctor who has examined the victim on 06.09.2015 narrates the following injuries:
"Cut and lacerated wound measuring 1.5 cm in her private part between labia majora and labia minora.19 Crl.A.No.100211/2017
Another cut injury measuring 3-4 mm on the posterior aspect of fourchete in her private part."
29. Thus, the substance of the evidence of PW.1-complainant-father of the victim, PW.2- mother of the victim and PW.3-Kalashree, a neighbor, PW.4-Suresh, PW.7-Hiligemma-victim girl and PW.10-doctor and the PW.14- Investigating Officer, is that, the girl was subjected to a sexual assault definitely not to penetrative or the aggravated sexual assault as defined under sections 3, 4 and 5 of the POCSO Act. At the same time, the nature of the offence in the circumstance and context of the case, Section 29 of the POCSO Act also required to be looked into, which is as under:
"29.Presumption as to certain offences.- where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, 20 Crl.A.No.100211/2017 that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
30. The learned Trial Judge very seriously erred in not noting the oral evidence spoken by the best witness, who is the victim, her statement under Section 164 of Cr.P.C being corroborated by the evidence of PW.1-father of he victim, PW.2-mother of the victim, PW.3- neighbor and PW.4-Suresh, direct and circumstantial witnesses, we are fully fortified by the evidence of PW.10-doctor but we fail to understand the range of error and the lapse of learned Trial Judge in appreciating the evidence and mechanically passing the order of acquittal. Here is a case definitely does not fall under Section 376(2)(i) and the ingredients perfectly suit the definition of the ingredients as defined under Section 7 of the POCSO Act, which is as under:
21 Crl.A.No.100211/2017
"7.Sexual Assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child, touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
31. We find that it is not only an erroneous judgment besides basic principles of adjudication of a criminal case are unnoticed by the learned trial Judge. No doubt, the accused was entitled for acquittal for the offences charged against him, but definitely not for the lesser offence defined under Section 7 of the POCSO Act squarely applied to his case. The prosecution beyond reasonable doubt has established the commission of offence by the accused. We find the accused guilty for having committed the offence defined under sections 7 and punishable under Section 8 of the POCSO Act.
22 Crl.A.No.100211/2017
32. The offence under Section 8 of POCSO Act is punishable with imprisonment for a period of not less than three years but may extend to five years and also liable for fine.
33. Amicus Curiae Sri Shriharsh A.Neelopant appearing for accused who submits that the lenient view may be taken into consideration.
34. In this connection we find it sufficient to impose minimum imprisonment which would serve the purpose.
35. The judgment dated 03.02.2015 passed in S.C.No.120/2015 by the Trial Judge is liable to be set aside and accordingly set aside. The appeal is deserves to be allowed in part. Hence, we proceed to pass the following:
: ORDER :
1. The appeal is partly allowed.23 Crl.A.No.100211/2017
2. The judgment and order of acquittal of the accused for the offence punishable under Sections 376(2)(i) and Sections 4 and 6 of the FOSCO Act, dated 03.02.2017 passed in S.C.No.120/2015 by the learned Trial Judge is hereby confirmed.
3. However, the accused/respondent is found guilty for the offence defined under Section 7 punishable under Section 8 of the POCSO Act.
4. The accused is sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.1,000/-, in default simple imprisonment for a period of one month.
5. We appreciate the cooperation of learned Amicus Curiae Sri Shriharsh A.Neelopant. His fee is fixed at Rs.15,000/-.
6. Send copy of this judgment to the learned Trial Judge for implementation of the sentence.24 Crl.A.No.100211/2017
7. If the accused was in judicial custody for any period, the same shall be given set off under section 428 Cr.P.C.
SD JUDGE SD JUDGE EM