Karnataka High Court
Abdul Gouse vs State By on 1 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 644, 2019 (3) AKR 474 (2019) 5 KANT LJ 730, (2019) 5 KANT LJ 730
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.1788/2017
BETWEEN:
ABDUL GOUSE
S/O ABDUL GOUSE MAZID
AGED ABOUT 31 YEARS
RESIDING AT BHARDAPUR
VILLAGE AND POST
AMBAJOGAYI TALUK
BEEDA DISTRICT
MAHARASHTRA STATE - 431 517.
...APPELLANT
(BY SRI H S SURESH, ADVOCATE)
AND:
STATE BY
MANDI POLICE STATION
MYSORE CITY - 570 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE ADDL.SPP)
THIS CRL.APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 09.01.2017 AND SENTENCE DATED
10.01.2017 PASSED BY THE VI ADDITIONAL DISTRICT AND
SPECIAL JUDGE, MYSURU IN S.C.No.112/2016-
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 354(A) OF IPC
2
AND SECTION 9(m) READ WITH 10 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT.
THIS CRL.A COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellant/accused is directed against the judgment of conviction dated 09-01-2017 and order of sentence dated 10.01.2017, passed by the VI Additional District and Special Judge, Mysuru, in S.C.No.112/2016, convicting the appellant/ accused for the offence punishable under Section 354-A of IPC and under Section 9(m) read with 10 of POCSO Act, and sentencing him to undergo simple imprisonment for a period of 05 years with fine of Rs.1,000/-, in default of payment of said fine, he shall undergo simple imprisonment for one month for the offence punishable under Section 9(m) read with 10 of POCSO Act, 2012.
2. The appellant herein is the accused before the Special Court in SC NO.112/2016. He was tried for the offence punishable under Section 354-A of IPC and 3 under Section 9(m) read with 10 of POCSO Act. The learned Special Judge on conclusion of the trial held him guilty of the offences punishable under Section 354-A of IPC and under Section 9(m) read with 10 of POCSO Act.
3. The accused is in judicial custody being arrested on 29.1.2016 continued to be so till the pronouncement of conviction and sentence by the Special Judge and thereaft4er, by virtue of sentencing him of simple imprisonment for 05 years, he is serving sentence at present.
4. In order to avoid confusion and overlapping, the parties hereinafter are referred to with reference to their rankings as held by them before the special court.
5. The complainant is the mother of the victim. A criminal case came to be registered against the appellant/accused in Crime No.14/2016 for the offences punishable under Section 354, 354-A of IPC 4 and under Section 9(m), 10 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO' Act).
6. The substance of the complaint which is lodged on 28.1.2016 by the complainant are as under:
The complainant is the mother of the victim. It is stated that she is having two children. One male and one female. Elder one is female child, aged about 09 years, namely 'RRR' and younger one is a male child aged 5 years. As usual, she took children to the school in the morning. It was at about 9.15 a.m., she left the children near the gate. By that time, accused who was coming from the opposite direction, hugged the daughter of the complainant and kissed her several times and also bite her lips. He did not leave the child, despite pushing and complainant went and hit him two to three times to retrieve the victim. By that time, Rahim Pasha and Mohamad Aseef came and held the accused, hit him with hands and retrieved the girl. Then she 5 secured her husband who was working in Afrath Hotel, the complaint was lodged and the case was registered against the accused.
7. The learned Special Judge, framed the charges for the offences punishable under Sections 354, 354-A and 9(m) read with Section 10 of POCSO Act. Accused pleaded not guilty.
8. The learned Special Judge was accommodated with the oral evidence of PWs 1 to 6 and documentary evidence of Exs.P1 to P7.
9. After the closure of evidence and hearing both sides, the learned Special Judge passed the judgment holding the accused guilty and sentenced him to undergo simple imprisonment for a period of five years as stated above.
10. Learned counsel Sri. Suresh H.S., for the appellant/accused submits that the accused is from 6 Maharastra and has nervous character. He would further submit that the child victim was like daughter to the accused and he never had mind to outrage her modesty or any sexual feeling nor involved in any act with sexual feeling or intention. Learned counsel would further submit that there are no corroboration between the complaint and the evidence of the complainant and the victim. Thus, stresses on his submission and submits that accused is entitled for an acquittal.
11. Sri. Vijaya Kumar Majage, learned Additional SPP for respondent would submit that the victim in the case is a child and was 09 years as on the date of the commission of the offence by the accused. The accused was fully aware of the consequences of his act on the date of offence near the school and has committed a ghostly act of committing sexual offence on victim and he is not entitled for any leniency for the offences committed by him. He would further submit the act of 7 the accused squarely falls within the domain of Section 9(m) of the POCSO Act, and he is liable for punishment. Under Section 10 of the said Act, the minimum punishment is, 05 years imprisonment and fine and accused is liable to maximum punishment and is not entitled for any leniency. He would further strenuously submit that the accused had no regard to the morality and legality and pouched on the young child to outrage her modesty and only to shock her.
12. In the context and circumstances of the case, the witnesses who are examined are six in number. Among them, PW1-Reshma Banu is the complaint. She was examined by the Special Judge on 29.9.2016. She tells about her relationship with the victim. According to her, on 28.01.2016 at about 9.15 a.m., she had taken the children to leave them to school. By that time, within the premises of school she left the children and was about to come back. Meanwhile, accused person came from the opposite direction and both shocking and 8 abruptly, held the victim and bite her lips. The victim girl tried to escape from him and in the process was beating him. By that time, complainant went and she also hit him and scolded him. Meanwhile, she informed one Asif who was there to go and inform her husband and her husband was secured and she went and lodged the complaint as per Ex.P1 and spot mahazar was conducted as per Ex.P2.
She has been cross examined. She does not know whether the elders are not allowed within the school premises. She states that lips of the victim were bitten by the accused. Incidentally, she denies the suggestion made during the cross examination. She also states that she went to the accused within a minute, when she went there, accused was biting, but had not fully bitten. There was no pleading to this effect.
13. The next witness is Rijvan Ahmad, who is also referred by the complaint is examined as PW2. He takes both his children to the school, thus he was 9 present at the time and place of the incident. After leaving his children, when he was about to start auto and leave the premises, Reshma banu was screaming to rescue her daughter as the accused was holding the victim. Then he held the accused and accused was holding the victim despite she as beating him and she tells that he has held her and biting her lips. The people there chased him and he intimated the same to the police.
He has been cross examined. According to his evidence, when the complainant was screaming, he went there. According to him victim, PW3 was beating the accused and he was biting her lips.
14. Insofar as the evidence of victim is concerned, she was aged 10 years on the date of her Chief examination on 24.11.2016 and the learned Special Judge has first assessed her capacity to understand questions and to give answers and permitted her to be examined.
10
PW3 tells that complainant is her mother. On the date of evidence she was studying in 4th Standard. She used to attend the school everyday along with her brother and her mother used to take them to the school and bring them back. When she was about to enter into the premises, a person/uncle came from opposite side, held her and bite the lips and she pushed him. By that time, the persons nearby and the shop keepers came and hit the accused. She identifies the accused and calls him as uncle. Thereafter, her parents and some of the businessman went to the police station.
She also speaks about the statement given before the Judge (under Section 164 of Cr.PC)
15. Vasima Jan, PW4, is Counsellor working in Government Girls Bala Mandira, Mysuru. She submitted her report. She tells about having counseled with PW3, victim girl and on enquiry, victim girl told her one person bite her lips and she struggled to escape 11 from him and finally, her mother came. She has been cross examined. She denies suggestions made to her.
16. Gulnas Bhanu, PW5, is the headmistress of MES Urdu Higher Primary School, Mysore. She was examined on 8.12.2006. She deposes regarding the victim studying in the school and also speaks on Ex.P5. The said document is the Register from the School regarding the date of birth. She identifies her signature in the document which is marked as Ex.P5.
17. Keshavamurthy, PW6 is the Sub Inspector of Police at the relevant time. He tells about the formalities of investigation and different stages of investigation.
18. The learned Special Judge convicted the accused for the offences punishable under Section 354- A IPC and Section 9(m) read with 10 of POCSO Act.
19. Insofar as complaint is concerned, the mother of the victim has lodged it and she tells about the incident that happened near the school of her children. 12 She tells the event of carrying the children to the school and they are chronological. Further, according to this witness, accused came from the opposite direction and held the victim and bite the lips of the victim. Along with the person who also came there, she sent a word to her husband.
So far as attack is concerned, in the complaint she tells that accused held the victim and kissed her all over the body. However, in the oral evidence, there is no whisper regarding the kissing her daughter and she saw accused was holding the victim. Thus, the evidence of complainant appears to be improvised version as compared to the complaint. According to her, accused was holding the victim and biting her and she went to the spot within a duration of one minute and also beaten the accused. But in the evidence, she tells that there was no bleeding. More particularly, she also tells, the accused was bending while he was a biting. It appears to be surprising one when she tells that victim 13 was not fully bitten and there was no bleeding from the lips. Thereafter, she denies the suggestions made by the learned counsel for the accused.
20. PW2 also does not tell about the hugging or kissing. But he tells that he was called by the complainant because of the accused holding the victim when he was about to start his auto after leaving his children. He saw that the accused who came from the opposite side had hold the victim and this witness and CW2 retrieved her. According to him, despite the accused was being beaten by the passers buy he was biting and holding the victim.
21. Insofar as the evidence of the child is concerned, she states that accused came running from the opposite direction, held her and bite her lips. Meanwhile, her mother came and hit the accused with chapels and shop keepers and other persons present there came and hit the accused. She identifies the accused.
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22. Now in the overall circumstances of the case, in the complaint hugging and indiscriminately kissing all over the body is mentioned by PW1 who is the mother of the victim. However, she softens her stand and tells that accused was holding the victim and biting. He was also bending and biting the victim's lips. But in her evidence, she gives a gobye to material part of her contention that victim was being hugged and kissed. Incidentally, even the victim does not say that the accused hugged and kissed her. She tells that she was held by the accused.
23. Further, the witness RA PW2 also tells regarding the screaming of the mother/ complainant and then he going to the spot and finding the victim was being held by the accused. His evidence is that, on hearing the screaming, he went to the spot and retrieved the victim from the accused. His further evidence is, inspite of the victim hitting the accused with hands, he has bitten her lips and holding while 15 biting. Thereafter, accused tried to ran away. He was held and take, to Police Station.
24. Here, it is necessary to mention Sections 4,5,6,7,8,9 and 10 of POCSO Act which are as under:
"4. Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable o fine.
5. Aggravated penetrative sexual assault.-
(a) Whoever, being a police officer, commits penetrative sexual assault on a child-
(i) within the limits of the police station or premises at which he is appointed; or
(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as, a police officer; or 16
(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child-
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the security or armed forces; or
6. Punishment for aggravated penetrative sexual assault.- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
7. Sexual Assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes he child touch the vagina, penis, anus or breast of such person or any other person, or does any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.17
8. Punishment for sexual assault.-
Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
9. Aggravated Sexual Assault.-(a)xxxxx
(m) whoever commits sexual on a child below twelve years; or
10. Punishment for aggravated sexual assault.- Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
25. Further Section 4 provides punishment for penetrative sexual assault and defined in Section 3. But neither the said provision is applicable to the case on hand nor the same is being chargesheeted. The aggravated penetrative sexual assault is defined under Section 5 wherein various kinds of aggravated assault. Punishment for the same is provided under Section 6 which shall not be less then 10 years and extended upto 18 5 years. The 'sexual assault' is defined under Section 7 and different illegal acts are mentioned therein which are considered as 'sexual assault' and the punishment is provided in Section 8. In the case on hand, the accused is convicted for the offences punishable under Section 9(m) read with 10 of POCSO Act. Section 9 mentions various aspects of sexual assault being punishable under Section 10 of the Act which shall not be less than 5 years. Now the question is, the offence alleged in the complaint is, the place was near the school, 9.15 a.m. the school was about to commence, the accused came running from the opposite direction, hold the victim and hugged her, kissed her indiscriminately and bite her lips despite protest of the victim. The complainant (mother of the victim) went to the spot and also beat him. However, insofar as kissing, the version is not available either in the complaint or in the evidence of PW2, independent witness or the victim. Similarly, the word hugging is used in the complaint. 19 On the other hand, PW2, mother of the victim tells in her evidence that accused did not leave her daughter, despite beating and also the version of the complainant/ mother is, she took one minute to go to the place where the offence was committed and according to this witness, he was still biting. But there is no bleeding from the lips. Thus, the probative force of the witness regarding the overtacts of the accused on the victim gets shaken over the offence punishable under Section 9(m) read with 10 of POCSO Act.
26. Thus, there is no corroboration from the material witnesses regarding the sexual assault, applicability of Section 9 of the Act read with 10. The Special Court was right in holding that the accused committed criminal offence against the victim. But, erred grossly erred in convicting him under Section 354-A of IPC and under Section 9(m) r/w 10 of POCSO Act, is liable to be set aside. Hence, the conviction under the wrong provision is liable to be set aside. 20
27. In Section 11 of the Act, 'sexual harassment' is defined as under:
11. Sexual harassment.- A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i) Utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child 21 or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefore.
The same is punishable under Section 13 which may extend to 3 years.
28. Here, it is necessary to make a cursory glance of Section 354 A of IPC which is as under:
" IPC 354A: Section 354A of the Indian Penal Code Sexual harassment and punishment for sexual harassment
1. A man committing any of the following acts
2. physical contact and advances involving unwelcome and explicit sexual overtures; or
3. a demand or request for sexual favours; or a. showing pornography against the will of a woman; or b. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
4. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with 22 rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
5. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
29. As a matter of fact, Section 11 of the Act defines various kinds of act stated above. Insofar as Section 354A IPC is concerned, the term 'sexual harassment' and 'punishment' are defined as stated above
30. Between the two offences, punishment provided for 'sexual harassment' as defined in Section 11 of the Act is a bigger one as it is punishable with imprisonment for three years as defined under Section 12 and Section 354A of IPC is punishable with rigorous imprisonment upto 3 years or fine. However, the accused/appellant is not convicted and sentenced for the offence punishable under Section 354A of IPC. In the circumstances, offence punishable under Section 11 23 of POCSO Act has greater degree in punishment over Section 354A of IPC. In the circumstances, I find the accused has committed sexual harassment which is an offence under Section 11 of the Act. Further, Section 42 of the POCSO Act, is as under:
"[42. Alternate punishment.- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.]"
31. Therefore, I find the accused guilty for the offence punishable under Section 11 of the Act. However, insofar as punishment is concerned, it is given in Section 12 of the Act and greater degree punishment is invoked. In the circumstances, I find that the Special Judge erred in coming to the conclusion that accused has committed the offence punishable under Section 24 354A of IPC and 9(m) r/w 10 of POCSO Act and also sentencing him for imprisonment of 5 years with fine of Rs.1,000/-. Thus, the accused is found guilty of the offence punishable under Section 11 r/w 12 of POCSO Act and he is sentenced to undergo imprisonment for a period of two years and to pay a fine of Rs.1,000/- in default to undergo SI of one month. He is stated to be in judicial custody and he is entitled for set off of the period of stay in the jail.
32. In the result, appeal filed by the appellant/ accused is partly allowed.
The judgment convicting the Accused for the offence punishable under Section 354-A of IPC and under Section 9(m) read with 10 of POCSO Act, thereby sentencing him to undergo simple imprisonment for a period of 05 years with fine of Rs.1,000/-, in default of payment of said fine, he shall undergo simple imprisonment for one month for the offence punishable 25 under Section 9(m) read with 10 of POCSO Act, 2012, passed by the learned IV Additional District and Special Judge, Mysuru, in SC No.112/2016 on 09.01.2017 is hereby set aside.
However, accused is found guilty for having committed the offence defined under Section 11 punishable under Section 12 of the POCSO Act and he is sentenced to undergo simple imprisonment for 02 years and to pay a fine of Rs.1,000/-, in default, simple imprisonment for one month.
Accused is said to be in judicial custody. He is entitled for set off of the period of stay in the jail if the period of stay in jail is 02 years or more than 02 years.
The accused is set at liberty, if he is not required in any other case.
Extra fine if any deposited by the accused shall be refunded to him.
The direction given by the learned Special Judge referring the matter Victims' Compensation Committee 26 constituted under Mysuru District Legal Services Authority, holds good.
Send the copy of this judgment to the trial court. Registry is directed to forward copy of this order to the concerned Superintendent of the Jail where the appellants are lodged at present.
Sd/-
JUDGE tsn*