Karnataka High Court
Mr Venkatesha vs State Of Karnataka on 23 January, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1327 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1327 OF 2020
BETWEEN:
MR. VENKATESHA
S/O LATE SHIVANNA
AGED 21 YEARS
OCCUPATION - COOLIE
RESIDENT OF DOORA VILLAGE
JAYAPURA HOBLI
MYSORE DISTRICT-570 008.
...APPELLANT
(BY SRI. I.S PRAMOD CHANDRA, ADVOCATE)
AND:
Digitally signed
by SANDHYA S STATE OF KARNATAKA
Location: HIGH BY JAYAPURA POLICE
COURT OF MYSORE DISTRICT
KARNATAKA
THROUGH THE
STATE PUBLIC PROSECUTORS
HIGH COURT BUILDING
DR. AMBEDKAR VEEDHI
BANGALORE-560 001.
...RESPONDENT
(BY SRI S VISHAWAMURTHY, HCGP)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND SENTENCE DATED:07/08.01.2019
PASSED BY THE LEARNED VI ADDITIONAL DISTRICT AND
SPECIAL JUDGE, MYSURU IN S.C.NO.111/2016 CONVICTING
AND SENTENCING THE APPELLANT/ACCUSED FOR THE
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CRL.A No. 1327 of 2020
OFFENCE P/U/S 376(2)(i) OF IPC AND SEC.5(m) R/W SEC.6 OF
POCSO ACT. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I FOR A PERIOD OF 10 YEARS WITH FINE OF
Rs.5,000 IN DEFAULT OF PAYMENT OF SAID FINE, HE SHALL
UNDERGO S.I FOR 3 MONTHS FOR THE OFFENCE P/U/S 5(m)
R/W 6 OF POCSO ACT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of conviction dated 07.01.2019 and order of sentence dated 08.01.2019 passed in S.C.No.111/2016 by the VI Additional District Judge and Special Judge, Mysuru, convicting the appellant/accused for the offence under Section 376(2)(i) of IPC and Section 5(m) read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for short).
2. The appellant/accused has been sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs.5,000/- in default, to undergo simple -3- CRL.A No. 1327 of 2020 imprisonment for three months for the offence punishable under Section 5(m) read with Section 6 of the Act. In view of Section 42 of POCSO Act, no separate sentence is passed for offence under Section 376(2)(i) of IPC as the punishment provided for offence under Section 6 is greater in degree.
3. The factual matrix of the case is that the mother of victim girl PW.1 has filed complaint on 01.01.2016 at about 7.00 p.m. stating that her younger daughter aged 8 years pursuing her studies at Government Higher Primary School returned from school at about 4.00 p.m. on 01.01.2016 and went to throw cow dung to the pit. Later one Pratiksha (PW.3) came near her house and intimated her that the appellant/accused has lifted her daughter and took her to the land of one Kalaswamy. Immediately, she rushed to Kalaswamy's garden land and found her daughter i.e. the victim girl- -4- CRL.A No. 1327 of 2020 PW.1 crying and her pant was removed and on seeing her, appellant/accused ran away from the spot. On enquiry, the victim girl narrated that the appellant/accused by removing her undergarments, kissed on her cheeks and has committed sexual assault on her and her private part is paining. The complainant returned home and intimated the elders of the village, they in turn told her to file the complaint. She went to police station and filed complaint (Ex.P2). The complaint (Ex.P2) is registered in crime No.2/2016 of Jayapura Police Station, Mysuru for offences under Section 376 of IPC and also under Sections 4 and 6 of POCSO Act, 2012. The Investigating Officer after completing investigation, filed charge sheet against the appellant/accused for offences punishable under Section 376(2)(i) of IPC and Section 5(m) read with Section 6 of the Act.
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4. The Special Court took cognizance of the said offences and framed charge for offence under Section 5(m) read with Section 6 of the Act and under Section 376(2)(i) of IPC. The appellant/accused denied that he has committed the offence.
5. The prosecution examined nine witnesses as PW.1 to PW.9 and got marked documents Ex.P1 to Ex.P17. The statement of the appellant/accused under Section 313 of Cr.P.C. was recorded.
6. After hearing the arguments on both sides, the Special Court framed points for consideration and convicted the appellant/accused for offences under Section 376(2)(i) of IPC and Section 5(m) read with Section 6 of the Act. The said judgment of conviction and order of sentence is challenged by the appellant/accused in this appeal.
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7. I have heard the arguments advanced by the learned counsel for appellant/accused Sri. I.S. Pramod Chandra who was appointed by the High Court Legal Services Committee to represent the appellant/accused and learned HCGP for respondent-State.
8. Learned counsel for the appellant/accused argued that the victim girl (PW.1) has stated in her evidence and also the statement recorded under Section 164 of Cr.P.C. (Ex.P1) and her statement recorded by WPSI-PW.6 (Ex.P8), that this appellant/accused has put his private part into her anus and no corresponding injury found in the report of the doctor who has examined the victim girl (Ex.P5). His further submission is that the victim girl is aged about 8 years and if her statement is accepted, definitely there should have been injury on her anus as the appellant/accused who is a grownup boy aged 21 years has put his private part into her anus. But there -7- CRL.A No. 1327 of 2020 is no injury found on the anus of the victim girl as per Ex.P5. The doctor (PW.5) who has examined the victim girl has given her final opinion after examining the victim girl and perusing the RFSL report that there is no evidence of sexual intercourse.
9. It is his further submission that the victim girl is of the age of 8 years and if the appellant/accused, grown up boy of aged 21 years puts his private part into the anus of the victim girl aged about 8 years, would definitely cause some injury on the orifice of the child i.e. anus. It is his further submission that, in the absence of medical evidence, the alleged act of the appellant/accused taking the victim girl removing her undergarments and kissing her would attract the offence under Section 7, punishable under Section 10 of the POCSO Act as the victim girl is below 12 years and it is aggravated sexual act under Section 9(m) of the Act.
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10. It is his further submission that the Trial Court has not considered the evidence of PW.5 - doctor who has examined the victim girl PW.1 and her report, which is at Ex.P5. With this, he prayed to allow the appeal and to set aside the conviction of the appellant/accused for offence under Section 376(2)(i) of IPC and Section 5(m) read with Section 6 of POCSO Act.
11. Per contra, learned HCGP would contend that the evidence of victim girl- PW.1 is trustworthy and inspires confidence and the said evidence of victim girl- Pw.1 is corroborated with her statement at Ex.P1 and statement recorded as per Ex.P8. It is his further submission that the evidence of victim girl-PW.1 does not require any corroboration even corroboration, of medical evidence is not required. On that point, he places reliance on the following decisions namely in the case of (i) Motilal Vs. State of Madhya Pradesh reported in (2008)11 -9- CRL.A No. 1327 of 2020 Supreme Court Cases 20 wherein, it is held at para No.12 which reads as under:
"12. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning.
There was no apparent reason for a married woman to falsely implicate the accused does not appeal to reasoning.
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CRL.A No. 1327 of 2020There was no apparent reason for a married woman to falsely implicate the accused after scatting (sic scathing) her own prestige and honour."
(ii)In the case of Mahendra Mahton Vs. State of Bihar reported in 2003 (4) Crimes 236 rendered by Patna High Court wherein at para No.9, it held as follows:
"The mere fact that no injury was found either on the person or the private part of the prosecutrix would not belie the statement of the prosecutrix. Similarly non-rupture of hymen too would not belie her testimony particularly when it is noticed that in cross-examination of the prosecutrix nothing was brought out to doubt the veracity, to suggest as to why she would implicate the appellant falsely."
12. It is his further submission that the evidence of victim girl- PW.1 except that her statement recorded under Section 164 of Cr.P.C. which is at Ex.P1 and her
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CRL.A No. 1327 of 2020statement recorded by the WPSI, PW.6 at Ex.P8 would clearly establish the offence under Section 5 (m) read with Section 6 of POCSO Act and under Section 376(2()(i) of IPC. The Trial Court considering the evidence on record has rightly convicted the appellant/accused for the said offence. With this, he prayed to dismiss the appeal.
13. On the grounds urged and arguments advanced by the learned counsel for the appellant and the learned HCGP for respondent-State, the following points would arise for my consideration:
(1) Whether the Trial Court erred in convicting the appellant/accused for offence under Section 376(2)(i) of IPC and Section 5(m) read with Section 6 of POCSO Act?
(2) Whether the materials on record establish that the appellant/accused has committed offence under Section 9(m) read with Section 10 of POCSO Act, 2012. If so, what is the sentence requires to be imposed on the appellant/accused?
My answer to the above points are as under:
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(1) In affirmative.
(2) In affirmative.
14. The victim girl is examined as PW.1. Her date of birth is 03.06.2008. Ex.P9 is the Study Certificate issued by PW.7 - Head Mistress of Government Higher Primary School, Doora Village and Ex.P10 is the extract of admission register wherein the date of birth of the victim girl is mentioned as 03.06.2008. PW.7 in her evidence has stated that as per school records, the date of birth of the victim girl is 03.06.2008 and the same has not been disputed by the appellant/accused. Therefore, the victim girl is aged less than 8 years as on the date of alleged offence which took place on 01.01.2016.
15. Victim girl-PW.1 in her evidence has deposed that the appellant/accused lifting her and by threatening her took her to one Kalaswamy's garden land where he removed her pant and tights and also removed his pant
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CRL.A No. 1327 of 2020and put his private part into her anus and pressed her mouth and restrained her from screaming. At that time, her mother PW.2 came there and on seeing her, he took his pant and ran away.
16. PW.2 - the mother of victim girl has deposed that on 01.01.2016, the victim girl after coming back from school, went for throwing the cow dung to the pit and about half an hour later Pratiksha (PW.3) came and reported to her that the appellant/accused lifted her and took her to the garden land of one Kalaswamy and she immediately went there and on seeing her, the appellant/accused took his pant and ran away by jumping the fence and at that time, the pant and tights of PW.1- victim girl were removed and the victim girl told her that this appellant/accused lifted her and took her to the garden land of Kalaswamy and removed her pant and tights and removed his pant and kissed on her cheeks,
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CRL.A No. 1327 of 2020touched her entire body and put his private part into her anus and caused pain.
17. The statement of the victim girl -PW.1 has also been recorded under Section 164 of Cr.P.C., which is at Ex.P1 wherein she also stated that what she has been narrated before the Court that the appellant/accused pinched her lips, kissed on her cheeks and hands. The victim girl-PW.1 in her statement recorded by PW.6- WPSI (Ex.P8) has also stated that the appellant/accused kissed on her cheeks and hands and put his private part into her anus and caused pain. PW.2 has filed complaint as per Ex.P2 on the same day i.e. on 01.01.2016 at 7.00 p.m. and the police after registering the case, sent the victim girl- PW.1 to the doctor for examination. PW.5 is the doctor who examined the victim girl-PW.1 and gave report as per Ex.P5. The said report is given after receiving the RFSL report as per Ex.P6.
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CRL.A No. 1327 of 2020
18. Pw.5-doctor in her evidence stated that on 01.01.2016 at about 10.45 p.m., she examined the victim girl -PW.1 and found that there was no injury on her body and on her private part and her hymen was intact and sent articles/clothes to the RFSL and as per report given by RFSL which is at Ex.P6, she gave report as per Ex.P5 that there is no evidence of sexual intercourse.
19. The accusation as per the case of prosecution is that on 01.01.2016 at 4.30 p.m., the alleged incident has taken place and the complaint is registered at 7.00 p.m. on the same day. The victim girl-PW.1 has been examined by Pw.5-doctor at 10.45 p.m. Even though the victim girl- PW.1 is examined immediately after incident within a short span of time, the doctor did not find any injury on her body and vagina. Even the doctor has examined the perineum of the victim girl and found that it is normal. The perineum is the region of the body between the genital organ and the anus. There is no mention of injury
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CRL.A No. 1327 of 2020on the anus in report - Ex.P5. The victim girl is aged nearly 8 years and if the appellant/accused who is aged 21 years as on the date of offence if puts his private part into the anus of victim girl would definitely cause some injury on the orifice/anus of the child since the orifice/anus could not take the organ of the adult. The two decisions relied upon by the learned HCGP are of not much helpful to prosecution case since the victims involved in those two cases are adult aged more than 20 years and in the case on hand, the victim girl is aged nearly 8 years. If the act of the appellant/accused putting his private part into the anus of the victim girl is excluded, what remains is that he took the victim girl, undressed her and he removed his pant and kissed on her cheeks, touched her body. The very said act of the appellant/accused shows his sexual intent. There is presumption under Section 30 of the Act that there exists a mental state and it is the act of the appellant/accused to prove that he is not in that mental state. The appellant/accused has not placed any material
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CRL.A No. 1327 of 2020to rebut the said presumption, The defence of the appellant/accused is of total denial.
20. The appellant/accused is charged for offence under Section 376(2)(i) of IPC which provides for punishment of commission of rape on women when she is 16 years of age. The rape is defined under Section 375 of IPC, which reads as under:
"A man is said to commit "rape" if he -
(a) Penetrates his penis, to any extent, into the vagine, mouth, urethra or anus of a woman or makes her to do with him or any other person; or
(b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person or
(c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
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(d) Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person."
21. The penetrative sexual assault is defined under Section 3 and clause (a) of Section 3 of POCSO Act is relevant to the case on hand, which reads thus:
"3(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person."
22. As the victim girl-PW.1 is aged below 12 years, the appellant/accused alleged to have committed offences under Section 5(m) that provides with punishment for penetrative sexual assault on a child below 12 years and it is punishable under Section 6 of the Act.
23. As observed above, the prosecution has failed to establish that the appellant/accused has committed
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CRL.A No. 1327 of 2020penetrative sexual assault on the victim girl-PW.1 who is aged below 12 years. Therefore, the offence under Section 5(m) read with Section 6 of the Act is not attracted. So also, the offence under Sections 375 and 376(2)(i) of IPC and Section 3(a) of the POCSO Act are not attracted in view of the aforesaid discussion.
24. The sexual assault mentioned under Section 7 of the Act, which reads thus:
"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."
25. As the victim girl-PW.1 aged below 12 years, aggravated sexual assault under Section 9(m) punishable under Section 10 of the Act is attracted. If the evidence of PW.1-victim girl coupled with her statement Ex.P1 and Ex.P8 and the report of the doctor at Ex.P5 are
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CRL.A No. 1327 of 2020considered, the prosecution has clearly establish that this appellant/accused took the victim girl-PW.1 with a sexual intent and removed her clothes, touched her body, kissed on her cheeks and committed sexual assault. The victim girl-PW.1 is aged below 12 years. Therefore, the offence which is attracted is aggravated sexual assault under Section 9(m) punishable under Section 10 of the Act. The Trial Court ought to have considered all these aspects and convict the appellant/accused for the offence punishable under Section 9(m) read with Section 10 of the POCSO Act. The offence under Section 10 of the Act is of lesser gravity and minor offence than the offence charged against the appellant/accused Under Section 6 of the 'Act' and therefore, the Court can convict the appellant/accused for the said offence even though the charge is not framed as per provisions of Section 222 of Cr.P.C. Therefore, under the circumstances, the appellant/accused is required to be acquitted under Section 376(2(i) of IPC and Section 5(m) read with Section 6 of the POCSO Act and the
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CRL.A No. 1327 of 2020appellant/accused is liable to be convicted for offence under Section 9(m) read with Section 10 of the POCSO Act. The punishment provided for the offence under Section 10 of the Act is imprisonment shall not be less than five years or which may extend upto 7 years and also liable for fine.
26. The appellant/accused is aged 21 years as on the date of alleged offence and he is illiterate. It is also come in the evidence that the appellant/accused has no parents. Considering all these aspects, if the appellant/accused is sentenced to undergo simple imprisonment for a period of six years with a fine of Rs.5,000/- in default, to undergo simple imprisonment for a period of three months appears to be reasonable.
27. In the result, I pass the following:
ORDER i. The appeal is allowed in part.
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ii. The conviction of the appellant/accused for the offence under Section 376(2(i) of IPC and under Section 5(m) read with Section 6 of POCSO Act is set aside.
iii. The appellant/accused is convicted for the offence under Section 9(m) read with Section 10 of POCSO Act and sentenced to undergo simple imprisonment for a period of six years and to pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of three months.
iv. Order of payment of entire fine amount to the victim girl-PW.1 in terms of Section 357 (1)(b) of Cr.P.C and compensation amount of Rs.3,00,000/- under Section 33(8) of POCSO Act as ordered by the Trial Court/Special Court remains unaltered.
Sd/-
JUDGE SSD