Karnataka High Court
The State vs Sri Raghu Yane Kabeera on 5 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A. No.981 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A No.981 OF 2017 (A)
BETWEEN:
THE STATE BY CHALLAKERE POLICE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 004
...APPELLANT
(BY SRI.B.LAKSHMAN, HCGP)
AND:
1. SRI RAGHU YANE KABEERA
SON OF SRINIVASA
AGED ABOUT 23 YEARS
COOLIE
R/AT NEXT TO KATAYYA'S HOUSE
MADAKARI NAGARA
CHALLAKERE NAGARA
CHITRADURGA DIST.
2. SRIDEVI
W/O R.SHIVAJI RAO
AGED ABOUT 42 YEARS
R/AT ACHAR STREET
ASSAR MOHALLA
AJJANAGUDI ROAD
CHALLKERE TOWN
CHITRADURGA DISTRICT
...RESPONDENTS
(BY SRI.GOPALAKRISHNAMURTHY C., ADVOCATE FOR R1
R2- SERVED)
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CRL.A. No.981 OF 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 31.01.2017 PASSED BY THE SPECIAL II ADDITIONAL
DISTRICT AND S.J., CHITRADURGA IN SPL. C. (POCSO)
NO.05/2016 THEREBY ACQUITTING THE
RESPONDENTS/ACCUSED OF THE OFFENCES P/U/S 366 AND
376 OF IPC SEC. 4 AND 6 OF POSCO ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 23.09.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI,
J., DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/State feeling aggrieved by the judgment of Trial Court on the file of Special II Addl.District and Sessions Judge, Chitradurga in Special Case (POCSO)No.05/2016, dated 31.01.2017 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 07.01.2016 at about 12.15 p.m. near Asarmohalla, -3- CRL.A. No.981 OF 2017 Ajjanagudi road of Challakere town, accused in front of the house of CW.1 Shivajirao kidnapped his daughter CW.6 victim with an intention to marry her and thereafter forcibly took her in the bus to Haravadi village of Koodlagi Taluk. The accused has confined CW.6 victim in the house of CW.11 Ramachandrappa from 07.01.2016 to 12.01.2016 and during this period accused has committed forcible sexual assault on CW.6 victim. Thereafter, on 13.01.2016 at 10 a.m. accused left CW.6 victim near Challakere bus stand and escaped from the spot.
3(a). The father of victim CW.1 Shivajirao on receiving information from his wife CW.4 Sridevi on 07.01.2016 at about 1 p.m. that she had gone to take bath. After bath when she came out CW.6 victim was not in the house and in spite of search in the nearby places, she was untraceable. He immediately came to the house and searched for CW.6 victim and enquired with the relatives, since CW.6 victim was untraceable filed the missing complaint on 08.01.2016.
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CRL.A. No.981 OF 2017 3(b). After returning of CW.6 victim to the house on 13.01.2016, the mother of victim CW.4 Sridevi filed the complaint on revelation of incident by CW.6 victim, that accused had taken CW.6 victim to the house of CW.11 Ramachandrappa on the pretext of marrying her and confined in the said house from 07.01.2016 to 13.01.2016. Accused has committed sexual assault on CW.6 victim in the said house, in spite CW.6 victim objecting for the same. The said complaint was registered in Challakere Police Station crime No.0004/2016 for the offence punishable under Section 363 of IPC. The Investigating Officer after completing investigation filed charge sheet against accused for the offence punishable under Sections 366, 376 of IPC and Sections 4 and 8 of POCSO Act.
4. In response to the summons, accused has appeared through his counsel. The Trial Court on being prima facie satisfied of the charge sheet material framed charge for the offence punishable under Sections 366, 376 -5- CRL.A. No.981 OF 2017 of IPC and Sections 4 and 8 of POCSO Act. Accused pleaded not guilty and claimed to be tried. Prosecution in order to prove the allegations made against the accused relied on the oral testimony of PWs.1 to 21 and the documents at Exs.P.1 to P.26, so also got identified MOs.1 to 15. The accused got confronted the photographs Exs.D.1 to D.8.
5. On closure of the prosecution evidence, the statement of accused under Section 313 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.') came to be recorded. Accused has denied all the incriminating material evidence appearing against him and claimed that false case is filed. The Trial Court after appreciation of evidence on record acquitted the accused from the charges leveled against him.
6. Appellant/State challenging the judgment of acquittal, contended that Trial Court has not properly appreciated the evidence placed on record by the prosecution. The evidence of PW.15 victim would clearly -6- CRL.A. No.981 OF 2017 goes to show that as on the date of incident she was minor and accused on the promise of marrying her kidnapped PW.15 victim in front of her house and kept in the house of PW.10 Ramachandrappa from 07.01.2016 to 12.01.2016. The evidence of PW.15 victim also goes to show that accused has left her in Challakere bus stand and escaped from the place. The said evidence of PW.15 victim is duly corroborated by the evidence of her parents PW.13 Shivajirao and PW.14 Sridevi. PW.12 K.Chandramohan has also spoken about the case as made out by the prosecution. The said evidence is further corroborated by the medical evidence PW.19 Dr.Ashok, PW.5 Dr.Shama Parveen and PW.6 Dr.A.M.Sunanda. The FSL report Ex.P.5 would go to show that seminal stains were found on item Nos.1 and 12, in the rest of the articles seminal stains were not detected, skin tissue was not detected on item No.13, spermatozoa was not detected on item Nos.4, 5 and 6. However, the oral testimony of PW.15 victim and the medical evidence of PW.5 Dr.Shama Parveen would go to show that on the -7- CRL.A. No.981 OF 2017 basis of FSL report she has given opinion that sexual intercourse has taken place with PW.15 victim. The age of victim has been proved by the evidence of PW.11 Devaraju, Principal of the school and PW.19 Dr.Ashok who has conducted the ossification test of victim and given report Ex.P.20, based on the X-ray of teeth Ex.P.21. The Trial Court without properly appreciating the above referred material evidence on record has recorded contrary findings which cannot be legally sustained. Therefore, prayed for allowing the appeal and to set aside the judgment of Trial Court, consequently to convict the accused for the offence alleged against him.
7. In response to the notice of appeal, respondent No.1 appeared through his counsel, respondent No.2 though served remained unrepresented.
8. Heard the arguments of both sides.
9. After hearing both sides and on perusal of the Trial Court records following points arise for consideration: -8-
CRL.A. No.981 OF 2017
1) Whether the prosecution has proved beyond all reasonable doubt that on 07.01.2016 at about 12.15 p.m. near Asarmohalla, Ajjanagudi road of Challakere town, while PW.15 victim standing in front of her house accused knowing full well that she is minor, with an intention to marry her kidnapped from the said place and took her to the house of PW.10 Ramachandrappa and kept her in his house from 07.01.2016 to 12.01.2016 thereby, committed an offence punishable under Section 366 of IPC?
2) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place accused after having kidnapped PW.15 victim while she was standing in front of her house and with an intention to marry her, further kept her in the house of PW.10 Ramachandrappa from 07.01.2016 to 12.01.2016 and knowing that she is minor, has committed sexual intercourse with her against her wish and will, thereby committed an offence punishable under Section 376 of IPC and Sections 4 and 8 of POCSO Act?
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CRL.A. No.981 OF 2017
3) Whether interference of this Court is required?
10. On careful perusal of oral and documentary evidence placed on record, it would go to show that on 07.01.2016 at about 12.15 p.m. near Asarmohalla, Ajjanagudi road of Challakere town, accused in front of house of PW.13 Shivajirao kidnapped the PW.15 victim with an intention to marry her and thereafter forcibly took her in the bus to Haravadi village of Koodlagi Taluk and confined in the house of PW.10 Ramachandrappa from 07.01.2016 to 12.01.2016. During the said period accused against the wish of PW.15 victim has committed sexual assault on her. The case of accused is one of total denial and claims that false case is filed against him.
11. Learned High Court Government Pleader for appellant/State has argued that PW.15 victim during the course of her evidence has narrated about the incident regarding kidnapping her from the place in front of her house and keeping in the house of PW.10
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CRL.A. No.981 OF 2017 Ramachandrappa from 07.01.2016 to 12.01.2016 and during the said period the accused has committed sexual assault on her. The said evidence is duly corroborated by the medical evidence of PW.5 Dr.Shama Parveen who has examined the victim and issued wound certificate Ex.P.3 pending FSL report and collected MOs.1 to 8. On the basis of FSL report Ex.P.5 final opinion is given Ex.P.4 stating that sexual intercourse has taken place. The age of victim is proved by the prosecution by examining PW.11 Devaraju, Principal of the school where victim has studied and the school register extract Ex.P.12, the date of birth of victim is recorded as 30.09.2000 and as on the date of incident PW.15 victim was minor. Therefore, the consent of PW.15 victim minor is no consent under the eye of law.
The evidence of PW.15 victim is duly corroborated by the evidence of PW.12 K.Chandramohan, PW.13 Shivajirao and PW.14 Sridevi. The evidence of PW.16 Durugeshi, PW.17 Manjunath though turned hostile regarding the preparation of panchanama in the house of PW.10 Ramachandrappa, where victim and accused stayed, but
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CRL.A. No.981 OF 2017 identified their signature on the panchanama Ex.P.15. The statement given by PW.15 victim before PW.7 Kamalamma WPSI Ex.P.9 and the one before Magistrate Ex.P.17 would go to show that PW.15 victim has narrated about the sexual assault committed by accused in the house of PW.10 Ramachandrappa. The contrary findings recorded by the Trial Court is against the above referred evidence on record cannot be legally sustained.
12. Per contra, learned counsel for the accused has argued that there is no basis for recording the Date of Birth of PW.15 victim in the school records and the evidence of PW.9 Lakshmibai is unreliable without producing the date of birth extract or the documents of school from where she was first admitted to the school. The evidence of PW.19 Dr.Ashok who has conducted ossification test has given report Ex.P.20 and the age shown estimated age as 17 years with plus or minus of 2 years. Therefore, the age beneficial to the accused has to be accepted. PW.15 victim was subjected to sexual assault
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CRL.A. No.981 OF 2017 against her will has not been established by the prosecution, out of the evidence placed on record. The Trial Court has rightly appreciated the evidence on record and the findings recorded by the Trial Court are based on the material evidence placed on record by the prosecution which does not call for interference of this Court.
13. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offence punishable under Sections 366, 376 of IPC and Sections 4 and 8 of POCSO Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law that, unless the guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
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CRL.A. No.981 OF 2017
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court
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CRL.A. No.981 OF 2017 Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that
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CRL.A. No.981 OF 2017 enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
The Hon'ble Apex Court in another latest judgment in Roopwanti Vs. State of Haryana and others reported in 2023 SCC online 179, wherein it has been observed and held in paragraph No.7 that:
" In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of full trial is strengthened and stands forfeited. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the forfeited presumption of innocence. This fortification of the presumption
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CRL.A. No.981 OF 2017 of innocence has been held in a catena of judgment by this Court".
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
14. The prosecution to prove the spot from where PW.15 victim was kidnapped in front of the house of complainant PW.13 Shivajirao relied on the oral testimony of PW.1 Jayanna, PW.2 Prashanth, PW.8 Sulochanamma owner of house and that of Investigating Officer PW.20 Venkatesh N. PW.1 Jayanna and PW.2 Prashanth during the course of their evidence have deposed to the effect that on 09.01.2016 between 10.00 a.m. to 10.30 a.m. they were called in front of the house of complainant PW.13 Shivajirao and showed the place from where his daughter was kidnapped and accordingly spot panchanama Ex.P.1 was prepared. The evidence of Investigating Officer PW.20 Venkatesh N would go to show that he has visited the place of incident on 09.01.2016 and in presence of PW.1 Jayanna and PW.2 Prashanth drawn
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CRL.A. No.981 OF 2017 the spot panchanama Ex.P.1 shown by complainant PW.13 Shivajirao. The evidence of owner of the house PW.8 Sulochanamma would go to show that she has deposed about PW.13 Shivajirao being the tenant of her house residing with his wife, children in the said house. In spite of they being subjected to cross-examination, nothing worth material has been brought on record so as to discredit their evidence. The spot panchanama Ex.P.1 was prepared in presence of PW.1 Jayanna and PW.2 Prashanth and the evidence of PW.8 Sulochanamma speaks about PW.13 Shivajirao being her tenant. Therefore, from the said evidence placed on record, the prosecution has proved the place of incident from where PW.15 victim was kidnapped in front of the house of complainant PW.13 Shivajirao.
15. In a case of sexual assault of child, the prosecution has to prove the age of PW.15 victim. The prosecution to prove the said fact relies on the oral testimony of PW.9 Lakshmibai grand mother of PW.15
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CRL.A. No.981 OF 2017 victim, PW.12 K.Chandramohan brother-in-law of PW.13 Shivajirao, PW.13 Shivajirao and PW.14 Sridevi are the parents of PW.15 victim. The prosecution also relies on the evidence of PW.11 Devaraju, Principal of the school where PW.15 victim was studying. Prosecution further seeks to rely on the oral testimony of PW.6 Dr.A.M.Sunanda before whom victim was produced on 16.01.2016 for conducting ossification test and given her report Ex.P.6 and that of PW.19 Dr.Ashok who has conducted dental examination, given report Ex.P.20 with the X-ray of teeth Ex.P.21. The oral testimony of PW.9 Lakshmibai, PW.12 K.Chandramohan and the parents of PW.15 victim i.e., PW.13 Shivajirao and PW.14 Sridevi coupled with the evidence of PW.15 victim would go to show that the date of birth of victim is 30.09.2000 and their evidence is consistent with regard to the date of birth of PW.15 victim.
15(a). PW.11 Devaraju Principal of Kittur Rani Channamma Residential School, Challakere has deposed to the effect that PW.15 victim joined to the school during
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CRL.A. No.981 OF 2017 academic year of 2014-15 on 04.07.2014 for 8th Standard and she studied in the said school for 4 months. Thereafter, the parents of PW.15 victim have taken transfer certificate on 27.11.2014. PW.11 Devaraju has given the school register extract bearing No.57/2014-15 Ex.P.12, wherein the date of birth of PW.15 victim is recorded as 30.09.2000. It has been elicited in the cross- examination of PW.11 Devaraju that while admitting PW.15 victim to the school for 8th standard, the entries in the school register are recorded on the basis of transfer certificate produced before him. It means that the defence admits the basic documents produced before PW.11 Devaraju while getting admitted PW.15 victim to the school.
15(b). PW.6 Dr.A.M.Sunanda has deposed to the effect that on 16.01.2016 at 11.15 a.m. women PC, Jyothi of Challakere has produced PW.15 victim for age determination. On the basis of radiological examination X-ray No.6452, dated 16.01.2016 has given opinion that
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CRL.A. No.981 OF 2017 PW.15 victim is between the age of 16 to 18 years Ex.P.6. PW.19 Dr.Ashok has conducted dental examination of PW.15 victim on 16.01.2016 sent through Jyothi, WPC of Challakere Police Station from Challakere General Hospital Davanagere. On examination of PW.15 victim given certificate of age determination Ex.P.20 opining that the estimated age of PW.15 victim is to be 17 years plus or minus of two years.
16. Learned counsel for the respondent in support of his contention that ossification test on the basis of radiological examination may not be an accurate and sufficient margin either way has to be the allowed, relied on the judgment of Hon'ble Apex Court in Rajak Mohammad Vs. State of Himachal Pradesh, reported in (2018)9 SCC 248, wherein it has been observed and held that para 9 and 10 as under:
" 9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the
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CRL.A. No.981 OF 2017 totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.
10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."
16(a). Learned counsel for the respondent relies another latest judgment of Hon'ble Apex Court in P.Yuvaprakash Vs. State represented by Inspector of Police reported in 2023 AIR (SC) 3525, wherein it has been held that age of victim to be determined through "ossification test" or "any other latest medical age
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CRL.A. No.981 OF 2017 determination test" if transfer certificate and extracts of admission register of school not available.
17. In the present case PW.15 victim was studying 8th standard in Kittur Rani Channamma Residential School, Challakere for the year 2014-15 on 04.07.2014 and she pursued her studies in the said school for about 4 months. If the age of PW.15 victim has deposed by herself during the course of her evidence as her date of birth on 30.09.2000 and the same is calculated, then it matches with the age as on 04.07.2014, the date on which she got admitted in Kittur Rani Channamma Residential School for 8th standard, the said evidence is duly corroborated by the evidence of PW.11 Devaraju and it has been elicited by the defence in the cross-examination that while admitting PW.15 victim to the school, she has produced transfer certificate from school where she studied earlier. It means that basic document regarding the date of birth of PW.15 victim was produced while getting PW.15 victim admitted to Kittur Rani Channamma Residential School, Challakere.
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CRL.A. No.981 OF 2017 The cross-examination of PW.11 Devaraju would suggest that the entries in the register extract of school Ex.P.12 is based on the basic document produced while getting PW.15 victim admitted to the school. Therefore, apart from the ossification test of PW.15 victim conducted by PW.6 Dr.A.M.Sunanda and PW.19 Dr.Ashok conducted dental examination, there is ample material evidence placed on record by the prosecution to prove the age of PW.15 victim as 30.09.2000 referred in the school records Ex.P.12. The father of victim PW.13 Shivajirao has deposed in his evidence to the effect that he has given the date of birth as 30.09.2000 while getting admission of his daughter to the school, the same has not been specifically denied by the defence during the cross-examination of PW.13 Shivajirao. Therefore, the prosecution out of the above referred evidence on record has proved the date of birth of PW.15 victim as 30.09.2000 referred in the school records Ex.P.12. If the same is taken as a basis and calculated the age of PW.15 victim as on the date of incident on 07.01.2016, then it would go to show that the
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CRL.A. No.981 OF 2017 victim was 16 years, 4 months as on the date of incident. Therefore, the prosecution has proved by the above referred evidence on record that PW.15 victim was minor as on the date of incident.
18. The prosecution to prove the incident that PW.15 victim was kidnapped from the place in front of the house of complainant PW.13 Shivajirao and she was subjected to sexual assault relies on the oral testimony of PW.9 Lakshmibai grand mother of victim, PW.12 K.Chandramohan brother-in-law of complainant, PW.13 Shivajirao and PW.14 Sridevi are parents of PW.15 victim. The direct evidence is in the form of evidence of PW.15 victim and the evidence of other witnesses as referred above is based on the revelation of incident by PW.15 victim.
18(a). PW.15 victim has deposed to the effect that she joined Kittur Rani Channamma Residential School for 8th standard and while she was studying in 9th standard left the school and residing in the house. She is residing
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CRL.A. No.981 OF 2017 with her parents, brother Muthuraj and grand mother Lakshmibai. Further, her date of birth is recorded as 30.09.2000 and she knows the accused. While she was studying in 8th standard accused used to come to her school and tried to talk with her by taking her name and use to follow her where ever she goes and stated that I love you, but she did not respond for the same. However, the school teachers have informed to her parents. On receiving such information, her parents and maternal uncle PW.12 K.Chandramohan have cautioned the accused, the parents of PW.15 victim discontinued her education. However, accused used to move around the house and followed her when ever she goes out of the house and she informed said fact to her parents. In spite of caution accused did not stop following her.
18(b). Thereafter parents of PW.15 victim got her admitted to computer class and mother used to accompany her for attending the computer classes, some times she used to go alone. Accused used to follow her
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CRL.A. No.981 OF 2017 and continued his effort to talk with PW.15 victim. Accused used to ask PW.15 victim to accompany him and he will marry her. However, she did not agree for the same. Accused had given mobile to her, after she left the computer class and she was not allowed to move out of the house by her parents, but she returned the said mobile to him.
18(c). On 07.01.2016 her father PW.13 Shivajirao went out of the house at 9 a.m. for utensil business and her brother Muthuraj went to school. At about 12.00 p.m. while mother of PW.15 victim had gone for bath, PW.15 victim went out of the house to collect (mara) at that time accused was found in front of her house and accused by holding her hand asked to accompany him. Therefore, she went with accused, thereafter accused took PW.15 victim to Haravadi village of Koodlagi Taluk and kept her in the old house of PW.10 Ramachandrappa. PW.15 victim and accused used to sleep in the hall at that time accused in spite of objection of PW.15 victim has committed sexual assault on her.
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CRL.A. No.981 OF 2017 18(d). Accused has taken PW.15 victim to Bellary, Bengaluru and other places and on 13.01.2016 between 12.30 p.m. to 1.00 p.m. he left her in Challakere bus stand and asked PW.15 victim to wait for some time. However, he did not came back. PW.15 victim went to her house and narrated about the incident to her mother who in turn informed about return of PW.15 victim to the house to her husband PW.13 Shivajirao. On his arrival, they went to the Police Station and PW.14 Sridevi filed written complaint. Thereafter PW.15 victim was sent to medical examination. She also showed the place of incident where she was kept in the house of PW.10 Ramachandrappa accordingly panchanama was prepared Ex.P.15. She further deposed to the effect that she has given statement before PW.7 Kamalamma, WPSI Ex.P.9 and also given statement before Magistrate Ex.P.17. Clothes worn by her on the said day have been collected by the medical officer.
19. The evidence of PW.7 Kamalamma WPSI would go to show that on 15.01.2016 on the instructions of
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CRL.A. No.981 OF 2017 Dy.S.P. report to PW.21 Shamiulla in the office and had securing the address given by PW.21, address of PW.15 victim from PW.21 Shamiulla went to the house of victim and recorded the statement of victim Ex.P.9.
19(a). PW.15 victim has also given her statement before the Magistrate Ex.P.17. The statement given by PW.15 victim before PW.7 Kamalamma WPSI Ex.P.9 and the one given before the Magistrate Ex.P.17 would go to show that she has reiterated her statement about the incident and accordingly given evidence before the Court.
20. The evidence of PW.9 Lakshmibai grand mother of victim, PW.12 K.Chandramohan maternal uncle of PW.15 victim and also the evidence of her parents PW.13 Shivajirao and PW.14 Sridevi would go to show that apart from they having deposed about the missing of PW.15 victim from 07.01.2016 to 12.01.2016 also have deposed about the incident of sexual assault by accused as narrated by PW.15 victim on her arrival to the house.
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CRL.A. No.981 OF 2017 20(a). Looking to the cross-examination of PW.15 victim, PW.9 Lakshmibai, PW.12 K.Chandramohan, PW.13 Shivajirao and PW.14 Sridevi, it would go to show that earlier the family of complainant PW.13 Shivajirao was residing in Madakarinagar of Challakere and the house of accused was also situated near to the said house. PW.15 victim and accused No.1 were in love with each other and due to which PW.13 Shivajirao shifted his house to the present address. On the same reason, the education of PW.15 victim was discontinued and thereafter she joined computer class. However, after noticing that PW.15 victim and accused continued to talk with each other, the parents have discontinued her computer class and she was to be in the house. However, accused continued to talk with PW.15 victim over phone and also used to talk at other places secretly. The parents of PW.15 victim adviced their daughter to disassociate herself from the love affair with accused and cautioned the accused to discontinue to talk with PW.15 victim. The said fact has been admitted in the cross-examination by all the material witnesses i.e.,
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CRL.A. No.981 OF 2017 PW.9 Lakshmibai, PW.12 K.Chandramohan and PW.13 Shivajirao, PW.14 Sridevi and PW.15 victim. Accused did not dispute that he was in love with PW.15 victim and he was in contact with her even after their love affair was known to her parents, further even after discontinuation of education of PW.15 victim, they were secretly talking with each other and the accused has given mobile to PW.15 victim for being in contact with him. Accused has also not specifically denied the said fact during the cross- examination of PW.15 victim. The above referred evidence of PW.15 victim would go to show that she was in the company of accused from 07.01.2016 to 12.01.2016. On the basis of said evidence on record, it is the contention of the accused that he has not kidnapped PW.15 victim. In other words wants to claim that PW.15 victim moved with him voluntarily without there being any force on her. In view of the reasons recorded above, it is held that PW.15 victim was minor as on the date of incident and her consent to move with accused is not at all a consent in the eye of law.
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CRL.A. No.981 OF 2017 20(b). The prosecution to prove that victim and accused stayed in the house of PW.10 Ramachandrappa relied on the evidence of PW.10 Ramachandrappa panch witnesses, PW.16 Durgeshi, PW.17 Manjunath to the panchanama Ex.P.15 on the basis of place shown by PW.15 victim along with police and panch witnesses. PW.18 Kavitha is the daughter of PW.10 Ramachandrappa, PW.3 C.Ramakrishnappa, PDO of Jermali village and issued the assessment extract of the house standing in the name of G.Shoba wherein PW.10 Ramachandrappa was residing. However, PW.10 Ramachandrappa, PW.16 Durgeshi, PW.17 Manjunath, PW.18 Kavitha have not supported the case of prosecution. PW.16 Durgeshi and PW.17 Manjunath have admitted their signature on the panchanama Ex.P.15 as per Ex.P.15 (c) and Ex.P.15(d) respectively and in the photograph Ex.P.16 both of them are appearing. The evidence of PW.3 C.Ramakrishnappa also would go to show that in the house extract Ex.P.2, the name of daughter in law of Ramachandrappa i.e., G.Shoba is appearing as owner, but PW.10
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CRL.A. No.981 OF 2017 Ramachandrappa s/o Marappa is residing in the said house. The Investigating Officer PW.21 Shamiulla has deposed to the effect that on 15.01.2016 he secured PW.16 Durgeshi, PW.17 Manjunath and also complainant PW.15 victim and she showed the house of PW.10 Ramachandrappa in which herself and accused stayed in the house and accordingly panchanama Ex.P.15 was prepared. The prosecution by the said evidence on record has proved the place shown by PW.15 victim where herself and accused stayed in the house of PW.10 Ramachandrappa.
21. The prosecution relies on the medical evidence of PW.5 Dr.Shama Parveen who has deposed to the effect that on 13.01.2016 at 2.30 p.m. PW.15 victim was produced before her for medical examination with the history of sexual assault, by examining her she found no external visible injuries and also no injuries around genitalia. Vagina hymen rugae present. Admits two finger. She also collected article Nos.1 to 8 referred in the wound
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CRL.A. No.981 OF 2017 certificate Ex.P.3 pending opinion for want of FSL report to find out whether spermatozoa is present in above specimen or not. On the basis of FSL report Ex.P.5 she has given final opinion Ex.P.4 stating that she is of the opinion sexual intercourse has been taken place.
21(a). PW.4 Dr.Satish Hadimani has deposed to the effect that on 13.06.2016 accused was produced through H.C.-243 and P.C.-1356 of Challakere town Police Station with the history of committing sexual assault and he has collected article 9 to 15 for FSL examination.
21(b). The above collected articles from PW.15 victim by PW.6 Dr.A.M.Sunanda and the article Nos.9 to 15 are collected by PW.14 Dr.Satish Hadimani and they were subjected to FSL examination. The FSL report Ex.P.5 would go to show that seminal stains were found on the top (article No.1) collected from PW.15 victim and article No.12 under garment collected from accused. It is on the basis of the said information PW.5 Dr.Shama Parveen has given her final opinion Ex.P.4 stating that sexual assault
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CRL.A. No.981 OF 2017 has taken place. The defence though has subjected PWs.5 and 6 to cross-examination, nothing worth material has been brought on record so as to discredit their evidence.
22. If the above referred material evidence placed on record by the prosecution is appreciated in the light of case made out of the prosecution, then it would go to show that PW.15 victim was found missing from the house on 07.01.2016 and she was untraced till her arrival to the house on 13.01.2016. PW.15 victim was in the company of accused during the said period and both of them stayed in the house of PW.10 Ramachandrappa. Accused has subjected PW.15 victim to sexual intercourse while they were staying in the house of PW.10 Ramachandrappa. PW.15 victim during the course of her evidence has narrated about the sexual assault committed by accused and the same is duly corroborated by the evidence of PW.6 A.M.Sunanda and given final opinion Ex.P.4 stating that sexual intercourse has taken place. In view of the reasons stated above, it is held that PW.15 was minor as
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CRL.A. No.981 OF 2017 on the date of incident. Therefore, even if the cross- examination of PW.15 victim, PW.9 Lakshmibai, PW.12 K.Chandramohan, PW.13 Shivajirao and PW.14 Sridevi is to be accepted that accused and PW.15 victim were in love with each other and Exs.D.1 to D.8 photographs confronted to PW.15 victim during the course of her cross- examination that she moved with accused without any objection or resistance, then also such alleged consent of PW.15 victim is no consent at all in the eye of law. There is no evidence placed on record by the prosecution to prove that accused has compelled PW.15 victim for marriage with him and on such intention has kidnapped her. On the other hand, the evidence would go to show that she moved with accused at various places and never objected for the same. Therefore, the offence punishable under Section 366 of IPC is not established by the prosecution.
23. The evidence of PW.15 victim and that of PW.12 K.Chandramohan maternal uncle of PW.15 victim and her
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CRL.A. No.981 OF 2017 parents PW.13 Shivajirao, PW.14 Sridevi would go to show that PW.15 victim was found missing from the house on 07.01.2016 till she returns to her house on 13.01.2016. Accused left PW.15 victim in Challakere bus stand and asked her to wait for him. Thereafter he did not came back to Challakere bus stand, thereafter, PW.15 victim returned to the house. During the above said period PW.15 victim was in the company of accused, accused has kept PW.15 victim out of the custody of the lawful guardian of PW.13 Shivajirao and PW.14 Sridevi without their consent which amounts to kidnapping minor from lawful guardianship falling within the ambit of Section 361 of IPC which would attract penal action in terms of Section 363 of IPC.
24. The evidence of PW.15 victim and PW.5 Dr.Shama Parveen, who has examined PW.15 victim, on the basis of FSL report Ex.P.5 of the articles 1 to 15 collected from PW.15 victim and accused given final opinion Ex.P.4 stating that sexual intercourse has taken place. In the entire cross-examination of PW.15 victim,
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CRL.A. No.981 OF 2017 they stayed in the house of PW.10 Ramachandrappa has not been denied. Therefore, there is no reason to disbelieve the evidence of PW.15 victim that accused has committed sexual intercourse on her while both of them were staying in the house of PW.10 Ramachandrappa. The said fact has been further corroborated by the evidence of PW.5 Dr.Shama Parveen and the final opinion Ex.P.4 stating that sexual intercourse has taken place. They also have no any occasion to stay at any place other than the house of PW.10-Ramachandrappa. In view of the reasons recorded above, it is held that the victim is minor as on the date of incident. Therefore, her consent is no consent at all in the eye of law. In view of the fact that victim was minor on the date of incident and she was being subjected to sexual assault by accused which is duly corroborated by the medical evidence as referred above, the prosecution has proved that accused has committed offence punishable under Section 376 of IPC and Section 4 of the POCSO Act.
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CRL.A. No.981 OF 2017
25. Accused is also charged for the offence under Section 8 of the POCSO Act. The sexual assault must fall within the definition of section 7 of the POCSO Act which can attract penal action under Section 8 of the POCSO Act. In the present case, it is not the case of only inappropriately touching any of the parts of the body of the victim PW.15 attracting penal action under Section 8 of the POCSO Act. The evidence placed on record by prosecution as referred above would go to show that accused has committed penetrative sexual assault on PW.15-victim in terms of Section 3, which attracts penal action in terms of Section 4 of the POCSO Act. Thus, the prosecution has proved beyond all reasonable doubt that accused has committed an offences punishable under Section 363, 376 of IPC and Section 4 of POCSO Act. Consequently, we proceed to pass the following:
ORDER Appeal filed by Appellant/State is hereby partly allowed.
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CRL.A. No.981 OF 2017 The judgment of Trial Court on the file of Special II Additional District and Sessions Judge, Chitradurga in Spl.C.(POCSO) No.5/2016 dated 31.01.2017 is hereby set aside.
Accused is convicted for the offences punishable under Section 363, 376 of IPC and Section 4 of the POCSO Act.
The judgment of acquittal passed by the Trial Court against accused for the offence under Section 8 of the POCSO Act stands confirmed.
Call on to hear on quantum of sentence.
SD/-
JUDGE SD/-
JUDGE
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CRL.A. No.981 OF 2017 DR.HBPSJ & ABKJ 05.01.2024 HEARING ON SENTENCE Heard both sides on quantum of sentence.
Learned HCGP for appellant/State submits that accused has committed heinous offence of sexual assault against PW.15-victim by taking undue advantage of her minority, has kidnapped her from lawful custody of her parents and took her to unknown place i.e. to the house of PW.10-Ramachandrappa where accused has committed sexual assault on her, has been proved by the prosecution. Accused is not entitled for any leniency with respect to the offences proved against him.
Per contra, learned counsel for respondent No.1/accused submits that the incident in question took place in 2016 and the entire family is dependent on the income of accused and he is not a habitual offender. The learned counsel for respondent No.1 submits that accused is married and having two children. PW.15 has moved with accused without there being any force on her own accord. Therefore, prayed for taking a lenient view.
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CRL.A. No.981 OF 2017 It is the sentencing policy that the sentence ordered must be proportionate to the proved offence against the accused. The imposition of sentence shall be neither exorbitant nor flee bite sentence. In the present case, accused is found guilty for the offences punishable under Section 363, 376 of IPC and Section 4 of POCSO Act. In terms of Section 42 of the POCSO Act, where an act or omission constitute an offence punishable under this Act and also under Section 376 with other offences of IPC, then the offender found guilty of such offence shall be liable to punishment under this Act or under the Penal Code as provides for punishment which is greater in degree. The offence under Section 4 of the POCSO Act is punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to imprisonment for life and shall also be liable for fine. The offence under Section 376 of IPC is also punishable with imprisonment of either discretion for a term which shall not be less than 7 years but which may extend to imprisonment for life and also fine. The
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CRL.A. No.981 OF 2017 imposition of imprisonment and fine is mandatory for both the aforesaid offences. Looking to the facts and circumstances of the case, coupled with the allegations against accused, we proceed to pass the following :
ORDER ON SENTENCE Accused - Raghu Yane Kabeera, S/o. Srinivasa, Aged About 23 Years, Coolie, Residing at next to Katayya's House, Madakari Nagara, Challakere Nagara, Chitradurga District is sentenced to undergo rigorous imprisonment for 3 years and pay a fine of Rs.5,000/- and in default of payment of fine shall undergo additional rigorous imprisonment for 3 months for the offence under Section 363 of IPC.
Accused is further sentenced to undergo rigorous imprisonment for 7 years and a pay a fine of Rs.30,000/- and in default of payment of fine amount, accused shall undergo additional rigorous imprisonment for 1 year for the offence under Section 376 of IPC R/w.Section 4 of POCSO Act.
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CRL.A. No.981 OF 2017 Accused is entitled for the benefit of set-off under Section 428 of Cr.P.C. for the period having undergone by him in judicial custody, if any, in the matter.
On realisation of fine amount, the entire fine amount is ordered to be paid to PW.15-victim as compensation.
Accused shall surrender before the Sessions Court within 30 days from today to serve the sentence.
Accused is entitled for free copy of this judgment immediately.
Registry to transmit a copy of this judgment along with Sessions Court records to the concerned Sessions Court immediately for compliance.
SD/-
JUDGE SD/-
JUDGE GSR/RS