Karnataka High Court
Sri.Somappa @ Swamy vs State Of Karnataka, on 24 July, 2018
Equivalent citations: 2018 (4) AKR 461, (2018) 5 KANT LJ 542
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 100090/2017
BETWEEN:
SRI. SOMAPPA @ SWAMY,
S/O YAMANAPPA HARIJAN,
AGE: 36 YEARS, OCC.: COOLIE,
R/O: IRAKALAGADA,
TAL & DIST: KOPPAL.
- APPELLANT
(BY SRI SRINAND A PACHHAPURE, ADVOCATE)
AND:
STATE OF KARNATAKA THROUGH
KOPPAL RURAL POLICE STATION,
NOW REP. BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
- RESPONDENT
(BY SRI RAJA RAGHAVENDA NAIK, GOVT. PLEADER)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C. AGAINST THE JUDGMENT OF CONVICTION DATED
14.02.2017 AND ORDER OF SENTENCE DATED 15.02.2017
PASSED BY THE DISTRICT AND SESSIONS/ SPECIAL JUDGE,
KOPPAL, IN SPL. POCSO (S.C.) NO. 35/2015 FOR THE OFFENCE
PUNISHABLE U/S 376 OF IPC AND U/S 5(1) R/W SEC. 6 OF
POCSO ACT & ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
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JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence passed by the Court below in Spl. POCSO (S.C.) No. 35/2015 dated 14.02.2017/ 15.02.2017 wherein the accused is convicted for the offences punishable u/S 376 of IPC and u/S 5(1) r/w Sec. 6 of POCSO Act, 2012, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- for the offence punishable u/S 6 of POCSO Act, 2012 r/w Sec. 376 of IPC with default clause.
2. Brief factual matrix of the case are as under:
That the victim girl is a minor aged about 16 years; he induced her that he will marry her and saying so had sexual intercourse with her in a garden land belonging to Mahantesh Pattanshetty of Irakalgada; on 02.08.2015 kidnapped her, took her to Kunchur village near Ranebennur, kept her in a room near the house of one Somappa Babujan and had sexual intercourse with her. On the filing of the complaint by 3 the complainant, case in Crime No. 196/2015 as per Ex.P.14 came to be registered by the Police against the accused for the offences punishable u/S 363, 376 of IPC besides Sec. 6 of POCSO Act, 2012. PW13 -Pramod, H.C. No. 135 of Koppal Rural Police Station received the complaint as per Ex.P.8. After investigation charge sheet has been laid by the Investigating Officer against the accused for the aforesaid offences as where the trial Court has framed the charge sheet against the accused, the accused did not plead guilty but claimed to be tried. The prosecution in order to prove the guilt against the accused examined witnesses as per PWs.1 to 16 and got marked documents as per Exs.P.1 to P.18. On appreciation of the entire materials placed by the prosecution analytically held conviction against the accused for the offence punishable u/S 376 of IPC r/w Sec. 6 of POCSO Act, 2012. It is this judgment which is challenged in this appeal. 4
3. I have heard arguments of the learned counsel for the appellant and the learned Govt. Pleader for the State and perused the records of the case.
4. Whereas the learned counsel for the appellant who has taken me through the evidence of P.W.1, who is the Civil Judge & JMFC, Koppal, who has stated in her evidence that, on 26.08.2015 she recorded the statement of the victim u/S 164 of Cr.P.C. upon the requisition submitted by the CPI, Koppal. Victim was accompanied by a Woman Police Constable from Koppal Rural Police Station. On enquiry with the victim as to whether anybody has tutored or induced her, she stated that nothing has been made and accordingly she gave statement u/S 164 of Cr.P.C. as per Ex.P.1. The same is forwarded to the concerned Court in a sealed cover. In the cross-examination made on behalf of the accused she has denied the suggestion that the age of the victim and the facts of the case have not been voluntarily stated by the victim. She has further denied the suggestion that the Police have 5 threatened the victim to state the facts as per Ex.P.1 as contemplated u/S 164 of Cr.P.C.
5. P.W.7 is the victim girl. She has stated that, one year backshe had accompanied her mother to the garden land of one Mahantesh in the limits of Jinnapur Tanda. Her mother used to attend coolie work there where the accused also used to come there for coolie work. She was sent to a nearby room in the land to get water. When she had been to nearby the room she found that the accused was there and he told that he would marry her and saying so he made physical contact with her. The accused had committed similar act thrice but she did not intimate this fact to her mother. On another day she had been to the garden land of Mahantesh. By that time also the accused was there to attend the coolie work. He told her that, in the evening he would come to her house and take her to Ranebennur and get her married. At about 11 p.m. when her father and mother were sleeping in the house she came out of her house and later herself and the accused went 6 to Irakalagad by walking and from there they went to Koppal in a lorry. From there they boarded a car to proceed to Ranebennur. They reached Ranebennur in the morning nearby a village but she did not remember the name of the village. He has taken her to a house wherein he introduced her as his wife and asked to give coolie work to himself. That person accepted his request and gave coolie work in his land and also gave one room for their use. They have resided in the said room for about 20 days and there also he had sexual intercourse with her. After 20 days Koppal Police came there and took both of them. Due to the physical contact by the accused she became pregnant. In her cross-examination she has stated that the garden land of Mahantesh said to be situated at a distance of 4-5 kms from Jinnapur Thanda, she was residing with her parents, sister and other two brothers, her sister was married with a person of Ginigera village. As she had denied to reside lonely in the house, she used to accompany her mother for attending the Coolie work in the garden land but she was not doing the coolie work. 7 Mahantesh was giving coolie to her mother. She saw the accused for the first time in the garden land. She has denied the suggestions to the extent that she is deposing falsely.
6. P.W.4-Dr.Laxminarayan is the Doctor who has subjected the accused to medical examination and issued report as per Ex.P.4. There is nothing in the report to suggest that the accused is incapable of performing sexual intercourse.
7. P.W.5-Dr.Mehaboobi is the Doctor who has subjected the victim girl to medical examination. P.W.5 deposed that the victim girl was produced by WPC No. 12 of Koppal Rural Police Station. After physical examination of the victim she has issued certificate as per Ex.P.5. The Doctor has opined that no external injuries are found on her person. As the victim girl was pregnant nothing was collected. On examination of the victim girl she has referred her for urinary pregnancy test and obstetric scan for period of gestation. Accordingly, she issued OPD chit as per Ex.p.6. Urinary 8 pregnancy test report is issued as per Ex.P.7. In the cross- examination she has deposed that, the victim was aged 16 years as stated by her mother, no external injuries were found on her body, she was habituated for sexual intercourse; she further deposed that she cannot say as to whether prior to this pregnancy she had another pregnancy or she had undergone for abortion. This evidence of the Doctor runs contrary to the evidence of P.W.7-victim.
8. P.W.8-Shivappa is the father of the victim girl. He has specifically stated in his evidence that his daughter-victim had left the school while she was aged 6-7 years because of small pox. The accused was acquainted with his daughter as the accused used to go to the land of Mahantesh for attending the coolie work. His daughter was not seen at 11 pm and when he asked his wife-P.W.11 she also not found the victim. Thereafter they have made search of their missing daughter. A person by name Mukkanna -P.W.12, informed that their daughter was seen holding a tumbler in her hand. They have 9 searched for their daughter for almost four days and thereafter they filed complaint as per Ex.P.8. Later they came to know that her daughter was taken by the accused and abducted for 20 days near Ranebennur. Thereafter they had been to the Police station and saw the victim and upon enquiry she revealed that the accused had forcible sexual intercourse with her on the pretext of marrying her. He has denied the suggestion that in order to suit the purpose a false complaint is filed.
9. P.W.15-Chittaranjan is said to be the PSI of T.B. Dam Police Station who received the complaint and proceeded with the case for investigation, visited the scene of crime shown by the complainant. Accordingly, he drawn the panchanama as per Ex.P.2 and also drew map of scene of offence as per Ex.P.16, recorded the statements of C.Ws.5 to 8. He deposed that on 24.08.2015 the victim was produced by C.W.15- Woman Police Constable, to the Government Hospital, Koppal, sent the accused to the Government hospital for 10 medical examination and thereafter he has handed over the entire investigation to C.W.18-CPI. In the cross examination he deposed that, Ex.P.2 is the panchanama drawn by him, the said place is in Jinnapur tanda, he secured panchas - C.Ws.2 and 3 being the panch witnesses but he did not give any notice to them to secure the panch witnesses as per Ex.P.2. He has denied the suggestion that Ex.P.2 is drawn by him at the scene of crime itself. He has denied the suggestion that he is deposing falsely.
10. P.W.16-P. Mohan Prasad is the Investigating Officer who laid the charge sheet against the accused, wherein the victim who has shown the scene of crime and accordingly in the presence of C.Ws.2 and 3, he drew the spot mahazar as per Ex.P.3 and also drew map of scene of crime as per Ex.P.18. Subsequently, he recorded voluntarily statement of C.Ws.1 and 5 to 8. Ex.P.4 and P.5 are said to be the medical certificates of the victim as well as the accused. In the cross- examination he has specifically stated that on 25.08.2015 he 11 visited Jinnapur Thanda but he cannot remember the distance between Koppal and Jinnapur Thanda but the victim who has shown the scene of crime and he had drawn the sketch in the presence of panch witnesses and also drew map of scene of crime as per Ex.P.8. He has denied the suggestion that he has laid the charge sheet to suit the purpose to help the complainant.
11. This is the evidence which is laid by the prosecution in order to prove the guilt of the accused. But the evidence of P.W.1 as contemplated the statement u/S 164 of Cr.P.C. which runs contrary to the evidence of P.W.7 wherein she was produced before P.W.1. Ex.P.4 is the medical certificate pertaining to accused and Ex.P.5 is the medical certificates pertaining to the victim girl. In Ex.P.5 there is no inflicting of external injuries found on her as well as genital area. Therefore the evidence of P.Ws.4 and 5 run contrary to the evidence of P.Ws.7, 8 and 11.
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12. P.W.8 and 11 have been subjected to examination for the prosecution and at length cross-examined, but nothing worthwhile has been elicited in their evidence for the prosecution in order to prove the guilt of the accused coupled with the evidence of P.W.7 said to be the victim and also voluntarily accompanying with the accused and also stayed for a period of 20 days with the victim in Ranebennur. The allegation made against the accused is that he has forcible intercourse. There are no external injuries found on her person as well as genital area having habitual activities done by the victim. The same is reflected in the certificate.
13. The author of Ex.P.4 certificate has been subjected to cross examination only relating to victim. But there is no conclusion for the prosecution to prove Exs.P.4 and Ex.P.5. The cross-examination of P.Ws.7, 8 and 11 relating to the incident as narrated in the complaint at Ex.P.8 and also her statement as Ex.P.1 said to be recorded by P.W.1, who is a responsible judicial officer. The trial Court has misdirected 13 itself and misread the evidence of P.Ws.7, 8 and 11 coupled with Exs.P.15 and 16 relating to the averments made in the complaint Ex.P.8 as well as the medical certificate as per Ex.P.5 said to be issued by P.W.5 relating to the victim said to be that the accused had forcible sexual intercourse and made her to become pregnant.
14. Therefore, upon appreciation of the entire averments, the trial Court has erroneously come to the conclusion that the prosecution has proved the guilt of the accused u/S 376 of IPC and erroneously held conviction for the offence u/S 6 of POCSO Act r/w Sec. 376 of IPC. Therefore, the said judgment requires to be re-appreciated with the entire evidence on record wherein the prosecution did not place cogent, corroborative and acceptable evidence to hold that the accused had sexual intercourse with her and made her to become pregnant as narrated in the complaint as well as the theory projected by the prosecution.
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15. Learned Govt. Pleader for the State supporting the impugned judgment of conviction held by the Court below for the offence u/S 6 of the POCSO Act r/w Sec. 376 of IPC as wherein the accused who abducted the victim and made to live with him in a room for 20 days and during that period he had forcible sexual intercourse with her. The same has been established in the evidence of P.Ws.7, 8 and 11, they have stated in consonance with the statement of victim as recorded u/S 164 of Cr.P.C. and also evidence of P.W.1, being the responsible judicial officer, who recorded the statement of the victim u/S 164 of Cr.P.C. which is marked as Ex.P.1.
16. P.W.16 is the D.S.P, who laid the charge sheet, he visited the spot shown by the victim and drawn the sketch as per Ex.P.3. P.W.15 is the PSI has taken up investigation from P.w.16 and conducted the spot mahazaras per Ex.P.2. the trial Court has appreciated all these materials and rightly come to the conclusion that the prosecution has proved guilt against the accused u/S 6 of the POCSO Act r/w Sec. 376 of 15 IPC. Therefore, learned Govt. Pleader submits that there is no interference called for in this appeal and sought to dismiss the appeal.
17. There is no dispute that P.W.7 is less than 18 years of age. The prosecution has projected the theory that the accused abducted the victim from the custody of her parents from 02.08.2015 and the victim was taken to a village nearby Ranebennur wherein she was made to live with him for 20 days and during that period he had forcible sexual intercourse with her. P.W.5 is the Doctor who has subjected the victim for physical examination and issued certificate as per Ex.P.5 wherein she had reported that there are no external injuries on the body and genital area. Ex.P.4 is the medical certificate issued by P.W.4, a Doctor, who has subjected the accused for physical examination and issued certificate as per Ex.P.4. Taking into consideration the evidence of P.W.8 and 11 it cannot be said that the 16 prosecution has proved guilt of the accused beyond all reasonable doubt.
18. The prosecution has projected its theory that on 02.08.2015 the accused with an intention to have marriage with the victim girl, has abducted her and took her to Kunchur village situate at Halagoli cross, Ranebennur and made her to confine in a room situated near the house of one Somappa Babujan and subsequently he got married with her in Chowdamma temple. Later they lived for 20 days in the garden land of one Mahantesh until they are taken by Koppal Police.
19. The prosecution has not established the guilt against the accused relating to abduction of victim on 02.08.2015 and also made her to live in a room. P.W.7-victim said to have been accompanied with her mother-P.W.1 wherein she was attending the coolie work in the garden land of Mahantesh but the victim did not attend the coolie work. Therefore, the victim was acquainted with the accused. But, 17 P.W.8 has to be stated, the father of the victim who has specifically stated in his cross examination that his another daughter was given in marriage to one Suresh as he being his brother in law and also stated to be the brother of P.W.11. As that Suresh was also residing in their house as he was residing in the same Thanda. P.W.7-the victim who had gone to the house of grandparents as wherein her maternal uncle namely Suresh is also well acquainted to her. This evidence finds place for prosecution as wherein P.W.7, 8 and 11 said to be examined by the prosecution in order to establish the guilt of the accused that the accused said to be abducted the victim and also had forcible sexual intercourse with her.
20. The ingredients relating to the offence u/S 6 of the POCSO Act and also offence u/S 376 of IPC has not been established by the prosecution by placing cogent and corroborative evidence. The same has been seen in the evidence of the aforesaid P.Ws.7, 8 and 11, their evidence which contradicted the evidence of P.Ws.15 and 16 as 18 wherein P.W.16 said to be the Investigating Officer who laid the charge sheet against the accused by conducting spot panchanama as per Ex.P.3 which bears the signature of P.W.2 and P.W.3.
21. P.W.15 said to be conducted spot panchanama as per Ex.P.2, which bears the signature of P.Ws.2 and 3. But the evidence of P.W.7 runs contrary to the evidence of P.Ws.4 and 5, said to be the Doctors who have subjected the accused the victim for medical examination. Ex.P.5 is the medical certificate of the victim said to be issued by P.W.5. But their evidence which contradicts the evidence of P.W.7 said to be a vital witness for the prosecution to prove the guilt of the accused, that the accused had forcible sexual intercourse with the victim-P.W.7 and made her to abduction and kept her in the room of one Somappa situated at Kunchur village near Ranebennur.
22. At a cursory glance of the evidence of P.W.7 relating to abducting her by the accused on 02.08.2015 at about 11 p.m. 19 and so also she has given her statement as contemplated u/S 164 of Cr.P.C. which is recorded by P.W.1 said to be the Civil Judge & JMFC, Koppal. But the same has been contradicted to each other. Therefore, the evidence of P.Ws.7, 8 and 11 for the prosecution appears to be camouflage in order to prove the guilt of the accused.
23. In totality of the circumstances of the case relating to the abduction of the victim by the accused on 02.08.2015 at about 11 pm, the same has not been established by the prosecution by placing cogent and reliable evidence. Therefore, it appears to be clouds of doubt on the theory of the prosecution.
24. It is submitted by the learned counsel for the appellant that the accused is in custody for a period of nearly two years and five months. However, the same is to be termed as service of sentence and to meet the ends of justice. The prosecution did not place cogent, corroborative and consistent evidence to prove that the accused had abducted 20 the victim and had sexual intercourse for 20 days. P.W.7- victim, who is a minor, her evidence runs contrary to the evidence P.W.1.
25. Though the trial Court has acquitted the accused for the offence u/S 363 of IPC wherein the accused was said to have abducted the victim and also made out to confine in a room of the garden land of one Mahantesh but held that the prosecution has proved guilt against the accused for the offence u/S 376 of IPC, though P.Ws.7, 8 and 11 have not stated in their evidence confirming with the statement said to be recorded by P.W.1, being the responsible judicial officer as per Ex.P.1 relating to the incident as narrated by the victim.
26. Sec. 6 of the POCSO Act is a punishment clause relating to the sexual assault but the trial Court has come to the conclusion that the prosecution has proved guilt of the accused u/S 376 of IPC. Therefore, it is held that the conviction u/S 6 of the POCSO Act r/w Sec. 376 of IPC for a period of ten years and also sentenced to fine, which is 21 incorporated in the operative portion of the judgment, Therefore, the sentence which is held against the accused is required to be interfered in this appeal.
27. On entire reappreciation of the evidence on record, i.e., the evidence of the victim, evidence of P.W.1, evidence of P.Ws.4 and 5 - Doctors and the Police Officials coupled with the documents, i.e., medical certificates vide Exs.P.4 and P.5, mahazars, spot panchanama, etc. do not repose confidence in the mind of the Court in order to prove the guilt of the accused beyond reasonable doubt. Hence, I find that the prosecution has failed to bring home the guilt of the accused for the offences for which he is charged beyond reasonable doubt. The evidence of the witnesses including the victim, creates clouds of doubt in the mind of Court to record conviction said to be confirmed. In view of the same, the appeal deserves to be allowed and the order passed by the learned Sessions Judge requires to be interfered. Hence, I proceed to pass the following order.
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ORDER Appeal filed by the appellant-accused Somappa @ Swami u/S 374(2) of Cr.P.C. is allowed. Consequently, the judgment passed by the learned District & Sessions Judge, Koppal, in Spl. POCSO (S.C.) No. 35/2015 dated 14.02.2017/ 15.02.2017 convicting him for the offences punishable u/S 376 of IPC and u/S 5(1) r/w Sec. 6 of POCSO Act, and sentencing for the offence punishable u/S 6 of the POCSO Act r/w Sec. 376 of IPC is hereby set aside. He is set at liberty forthwith, if not required in any other case.
Fine amount, if any, paid by the appellant-accused, shall be refunded to him on proper identification.
Registry is directed to communicate the concerned jail authorities, as where the accused is lodging, the operative portion of the order, for compliance.
SD/-
JUDGE bvv