Karnataka High Court
Babajan vs The State on 21 November, 2023
1 CRL.A.NO.100074/2019
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100074/2019
BETWEEN:
BABAJAN MODINSAB HATI,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: SAVALAGI, TQ: GOKAK,
DIST: BELAGAVI.
...APPELLANT
(BY SRI.VITTHAL S TELI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
Digitally
R/BY THE STATE PUBLIC PROSECUTOR,
signed by V
VN
N BADIGER HIGH COURT OF KARNATAKA, DHARWAD BENCH,
BADIGER Date:
2023.11.24
14:20:02 THROUGH GOKAK POLICE STATION, GOKAK,
+0530
DIST: BELAGAVI.
...RESPONDENT
(BY SMT.GIRIJA HIREMATH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 24.01.2019 AND ORDER ON SENTENCE
DATED 25.01.2019 IN S.C.NO.203/2016 PASSED BY THE III
ADDL.DISTRICT AND SESSIONS JUDGE AND SPL.COURT UNDER
POCSO ACT, 2012 BELAGAVI FOR THE OFFENCES U/S 376, 506
OF IPC AND SECTIONS 3, 4 AND 6 OF THE POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11.09.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
2 CRL.A.NO.100074/2019
JUDGMENT
Being aggrieved by his conviction and sentence for the offences Punishable under Sections 376, 506 IPC and Sections 3, 4, 6 of POCSO Act, accused has filed this appeal under Section 374 (2) of Cr.P.C.
2. For the sake of convenience, the parties are referred to by their status before the trial Court.
3. A charge sheet came to be filed against the accused alleging that at the relevant point of time, prosecutrix was aged 16 years and was studying in 9th standard at Payisagar school. Her father Dheeraj Kalal was doing chicken business and was owning a Tata Ace vehicle. For some time accused was engaged as a driver in the said vehicle. During this period, accused came to be acquainted with the prosecutrix and though he was already married and having wife and two children, he falsely represented himself to be a bachelor and promising to marry the prosecutrix, on 20.09.2014 and 14.2.2015, took her to Brindavan Lodge of 3 CRL.A.NO.100074/2019 Gokak and committed rape upon her against her will. He gave threat to her life, if she revealed the said fact and thereby committed the above said offences.
4. In respect of the alleged incident, a complaint was filed by the prosecutrix on 05.03.2015. Based on the said complaint, case in Cr.No.39/2015 was registered and investigation was taken up. The prosecutrix as well as the accused were subjected to medical examination. Mahazar was drawn at the Brindavan Lodge where he committed rape on the prosecutrix. The clothes of accused as well as the prosecutrix were seized and subjected to Forensic examination. Statements of witnesses were recorded. The opinion of the Medical Officer was secured. After completing the investigation, charge sheet came to be filed against the accused for the offences punishable under Sections 376, 506 IPC and Sections 3, 4, 6 of POCSO Act.
5. Accused did not had the benefit of bail during the trial.
4 CRL.A.NO.100074/2019
6. Accused pleaded not guilty to the charges leveled against him and claimed trial. He has taken up a specific defence that he never worked as a driver with the father of prosecutrix. On the other hand, the father of prosecutrix viz., Dheeraj Kalal was running a business by name Money Plant wherein he promised to double the amount invested with him. Accused also participated in the said scheme by investing Rs.1 lakh. Dheeraj Kalal fail to pay the amount with benefit. On the other hand, he offered to pay only amount invested and refused to pay the interest. When accused insisted upon him to pay the interest part also, with the help of Sriram Sena members, he managed to file a false case against the accused. He has also taken up a specific defence that the prosecutrix was not a child as on the alleged date of incident and without conducting proper investigation, the Investigating Officer hand in glove with the father of the prosecutrix has filed a false charge sheet. 5 CRL.A.NO.100074/2019
7. In support of the prosecution cases in all 10 witnesses are examined as PW-1 to 10, Ex.P1 to 17 and MOs-1 to 6 are marked.
8. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the prosecution.
9. He has not led any defence evidence, but produced certain documents in support of his defence.
10. Vide the impugned judgment and order, the trial Court has convicted the accused for the offences punishable under Sections 376, 506 IPC and Sections 3, 4, 6 of POCSO Act and sentenced him as detailed in the impugned order.
11. Being aggrieved by the same, the accused has come up with this appeal, contending that the impugned judgment and order of sentence are illegal, perverse and opposed to law, facts and evidence placed on record. It is erroneous, illegal and based on conjectures and surmises. 6 CRL.A.NO.100074/2019 The impugned judgment and order indicates only copious quotation (estimated) from the evidence on record, without giving reasons to show as to why and how the witnesses are believed. The trial Court has erred in not considering the inordinate delay in filing the complaint and no explanation is forthcoming as to the delay.
12. The trial Court has not appreciated the fact that prosecution has failed to prove that as on the date of alleged incident, the prosecutrix was below the age of 16 years. Despite evidence to the effect that at the time of alleged incident, prosecutrix was studying in 9th standard, intentionally the Investigating Officer has not chosen to collect any documents regarding her date of birth. Even the Medical Officer who examined the prosecutrix, on whose report the prosecution has placed reliance to prove the age of the prosecutrix are not examined and therefore the prosecution has miserably failed to prove that as on the date of alleged incident, the prosecutrix was a child so as to attract the provisions of POCSO Act. Therefore, no reliance 7 CRL.A.NO.100074/2019 could be placed on the evidence of PW-5 who has not examined the prosecutrix.
12.1 The prosecution has also failed to prove that the father of the prosecutrix was owning a Tata Ace vehicle and accused was employed by him, despite the accused specifically disputing the said fact. The trial Court has not appreciated the documents produced by the accused through his defence and the motive for the father of prosecutrix to falsely implicate the accused. Without considering these aspects, the Sessions Court has blindly accepted the case of the prosecution and convicted the accused and prays to allow the appeal, set aside the impugned judgment and order and set the accused free.
13. In support of his arguments, learned counsel for accused has relied upon the following decisions.
(i) Mahadeo Maske Vs. State of Maharashtra (Mahadeo)1 1 (2013) 14 SCC 637 8 CRL.A.NO.100074/2019
(ii) Sanjeev Kumar Gupta Vs. State of Uttar Pradesh and Anr. (Sanjeev Kumar)2
(iii) State of H.P. Vs. Jai Lal and Ors. (Jai Lal)3
(iv) Mahadevu @ Pappi Vs. State of Karnataka (Mahadevu @ Pappi) 4
(v) Rahul Ram Vs. State of West Bengal (Rahul Ram)5
(vi) Harishankar Vs. State of Madras (Harishankar)6
(vii) Maherban Hasan Babhu Khan Vs. State of Maharashtra (Maherban)7
(viii) Somappa @ Swamy Vs. State of Karnataka (Somappa)8
(ix) State of Karntaka Vs. Vasanthkumar @ T.Naveenkumar (Vasanthakumar)9
(x) Deepak Gulati Vs. State of Haryana (Deepak Gulati)10
(xi) Shekar Vs. State of Karnataka (Shekar)11 2 (2019) 12 SCC 370 3 (1197) 7 SCC 280 4 ILR 2020 KAR 4569 5 2022 CAL 2233 6 2021 (2) MLJ Crl 406 7 2023 BOM 819 8 2018(5) KLJ 542 9 2018 Cr. R 442 (Kant) 10 (2013) 7 SCC 675 11 Crl.A.No.578/2015 9 CRL.A.NO.100074/2019
14. On the other hand, learned High Court Government Pleader supported that the impugned judgment and order and sought for dismissal of the appeal.
15. In support of her arguments, learned High Court Government Pleader has relied upon the following decisions:
(i) Yedla Srinivas Rao Vs. State of A.P
(Yedla)12
(ii) Ram Suresh Singh Vs. Prabhat Singh
(Ram Suresh Singh)13
(iii) State of U.P. Vs. Naushad (Naushad)14
(iv) Anurag Soni Vs. State of Chattisgarh (Anurag)15
16. Heard arguments of both sides and perused the record.
17. In order to attract the provisions of Sections 376
(i) I.P.C and Sections 3, 4 and 6 of POCSO Act, at the outset, it is obligatory on the part of the prosecution to prove that as on 20.09.2014 and 14.02.2015, prosecutrix was aged below 12 (2006) 11 SCC 615 13 (2009) 6 SCC 681 14 (2013) 16 SCC 651 10 CRL.A.NO.100074/2019 16 years. In the complaint itself the fact of prosecutrix being a student is forthcoming. In the charge sheet also it is specifically alleged that when the alleged incident took place, prosecutrix was studying in 9th standard at Payisagar school. However, for reasons best known to him, the Investigating Officer has not chosen to collect any certificate from the said school based on the admission register to prove date of birth of the prosecutrix. In fact, the defence counsel has cross- examined the Investigating Officer on this aspect, wherein he has stated that during investigation, he has not collected any records from the school or her birth certificate. During her cross-examination, the prosecutrix has clearly stated that the Investigating Officer has visited her school and examined the school records with regard to her date of birth.
18. In Mahadeo, the Hon'ble Supreme Court held that in order to determine the age of the prosecutrix, Rule 12 (3) of JJ Rules, 2007 is to be followed. As per these Rules, which is incorporated in Section 94 of the Juvenile Justice 15 (2019) 13 SCC 1 11 CRL.A.NO.100074/2019 (Care and Protection of Children ) Act, 2015, the documents which are required to be relied upon are (i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a Panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or Board, provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. Ram Suresh Singh also dealt with determination of date of birth. Such being the case, when the prosecutrix was a student and details of the school where she was studying are available, it was incumbent upon the Investigating Officer to collect certificate from the school as to the date of birth of the prosecutrix. The failure on the part of the Investigating Officer to collect the same, would raise 12 CRL.A.NO.100074/2019 the suspicion as to the bonafides of the Investigating Officer in not collecting the school records or birth certificate of the prosecutrix and an adverse inference is required to be drawn, that if the said documents were produced, they would have gone against the case of the prosecution.
19. As already noted, the prosecution has relied upon the medical report of the prosecutrix at Ex.P9 to prove her age. According to this document, as per the report of the dentist, the prosecutrix is aged between 13 to 14 years. The prosecution has examined PW5 Dr Rajgopal to prove the age of the prosecutrix and also the fact that she was sexually assaulted by the accused. However, the cross-examination of this witness and also Ex.P9 makes it evident that he has not at all examined the prosecutrix. On the other hand, he has referred the prosecutrix to a lady medical officer for her examination with regard to sexual assault on her and to the dentist for determination of her age. The Investigating Officer has not cited both the Gynaecologist (Lady Medical Officer) and the dentist as witnesses. The prosecution has 13 CRL.A.NO.100074/2019 also not requested the Court to examine these two witnesses and as such the prosecution has failed to prove Ex.P9 the report of examination of the prosecutrix to determine her age as well as to ascertain whether she was sexually assaulted. Consequently, no reliance can be placed on this document. Thus, the prosecution has failed to prove not only the age of the prosecutrix but also the fact that she was allegedly sexually assaulted by the accused.
20. It is the specific case of the prosecution that accused came in contact with the prosecutrix when he was working with her father as a driver. The accused has taken up a specific defence that the father of prosecutrix was not owning any vehicle, let alone Tata Ace and he was never employed by him. He has also specifically contended that he is not having any driving license. The Investigating Officer has not chosen to conduct any investigation with regard to the father of prosecutrix owning a Tata Ace vehicle and accused possessing a driving license. These documents would have supported the case of the prosecution. In the 14 CRL.A.NO.100074/2019 absence of the same, having regard to the specific defence taken by the accused, this Court is of the considered opinion that the prosecution has failed to prove that on account of being an employee of father of the prosecutrix, the accused came in contact with her and misusing the said situation, he availed himself an opportunity to exploit the prosecutrix.
21. According to the prosecution, on 20.09.2014 and 14.02.2015, accused took the prosecutrix to Brindavan Lodge and committed rape on her. He gave threat to her, if she reveals that the said fact to her parents. In order to prove that the incident took place at Brindavan lodge, the prosecution has relied upon the evidence of PW-4, Rajeev Shetti, Manager of Brindavan lodge. He has deposed to that effect. Through him 3 photographs captured at the time of drawing Mahazar are marked as Ex.P3. He has deposed that the Investigating Officer has collected license and customer register from them. However, later on they have received it back. However, the prosecution has failed to summon the same and mark them. Consequently, the prosecution has 15 CRL.A.NO.100074/2019 failed to prove that on 20.09.2014 and 14.02.2015, accused and prosecutrix stayed in the lodge. There is no corroboration to the testimony of PW-4.
22. Now, coming to the evidence of the prosecutrix as to the actual incident dated 20.09.2014 and 14.02.2015, when the accused allegedly committed rape on her at the Brindavan lodge. During the course of her evidence she has reiterated the complaint averment. According to her, accused took her to the Brindavan lodge and raped her with a promise that he would marry her. She has deposed that accused committed sexual assault on her forcibly and against her will and give threat to her life, if she reveal the said fact to her parents. Admittedly, after the first incident, prosecutrix has not revealed it to her parents. According to her again, on 14.02.2015, accused once again took her to Brindavan lodge and repeated the first incident culminating in accused giving threat to her. After the first incident, wherein accused gave threat to the life of prosecutrix, it is hard to believe that she would again accompany him to the 16 CRL.A.NO.100074/2019 lodge and facilitated the accused to repeat what he has done on 20.9.2014.
23. In this regard, the father of the prosecutrix, who is examined as PW-3 has deposed that on 14.02.2015, he found the prosecutrix sitting silently and on prodding by him and CW-5 and 6, she revealed the fact of accused having sexually assaulted her and a complaint came to be filed. However, the prosecutrix has deposed that 4 days after the second incident, she called the accused and he told her that he is already married and having two children and again give threat to her. Thereafter she revealed the said fact to her parents. There is no corroboration to the evidence of prosecutrix and her father as to when the fact accused having raped her came to be revealed by the prosecutrix. There is inordinate delay in filing the complaint. The complainant as well as her father have not explained the delay in filing the complaint. If at all on 14.02.2015 itself, the fact of accused having raped the prosecutrix came to the notice of her father and others, there was no impediment to 17 CRL.A.NO.100074/2019 file the complaint immediately. The conduct of the prosecutrix and her parents in not filing the complaint at the earliest creates doubt as to their bonafides.
24. Accused has taken up a specific defence that complainant is a member of Sriram Sena and when accused insisted on returning double the investment made by him, he has managed to get a false case registered against him. In fact, the accused has produced a term deposit scheme certificate by name "Money Plant". It is signed by the father of prosecutrix viz., PW-3, Dheeraj Kalal. As per this document in his capacity as the Chairman of the said Money Plant scheme, he has promised to return the investment of Rs.1,00,000/- made by the accused along with equal returns.
25. PW-2, Mahaveer Oswal, who is a witness to the spot and seizure mahazar has denied the suggestion that he is a Member of Shiv Sena and Bajrang Dal. During his cross- examination PW-3 Dheeraj Kalal, the father of the prosecutrix has admitted that she and PW-2 are members of 18 CRL.A.NO.100074/2019 Shri Ram Sena. He has admitted that even before the complaint was lodged accused was apprehended and was kept in the police station. The prosecutrix has deposed that at the time of filing the complaint that she and her father went to the police station. Her father i.e., PW-3 Dheeraj Kalal has deposed that around 10-12 people went to the police station to file the complaint.
26. During his cross-examination, the father of the prosecutrix has admitted that the prosecutrix is married and has given birth to a child. However, during her cross- examination prosecutrix has denied the said suggestion. The overall examination of the evidence placed on record with regard to the allegations made against the accused does not inspire confidence. The prosecution has miserably failed to prove the alleged incident dated 20.09.2014 and 14.02.2015. The prosecution has also failed to prove that as on the said dates, prosecutrix was a child and she had not completed the age of 16 years. Even the medical evidence is not positive for the alleged sexual assault made by the 19 CRL.A.NO.100074/2019 accused and it is not proved. The chemical evidence is also negative. The accused has proved the motive for the complainant to falsely implicate him in the light of financial transaction which he had with the father of the prosecutrix.
27. So far as Yedla, Naushad and Anurag Soni are concerned, they deal with prosecutrix who was adult and the allegations were that under promise of marriage, the accused established sexual relationship with the prosecutrix. In the present case, it is the definite case of the prosecution that the prosecutrix was a child. No charges were framed against the accused with the allegations that prosecutrix was major and accused established sexual relationship with her under the promise of marriage. Evidence is not lead on these lines. Therefore, these decisions are not applicable to the case on hand.
28. Without examining the oral and documentary evidence in right perspective, the trial Court has blindly accepted the case of the prosecution and proceeded to 20 CRL.A.NO.100074/2019 convict the accused. On re-appreciation of the oral and documentary evidence placed on record, this Court is of the considered opinion that the conviction imposed by the trial Court is not sustainable. In the result, the appeal succeeds and accordingly, I proceed to pass the following;
ORDER
(i) Appeal filed by the accused under Section 374 (2) of Cr.P.C is allowed.
(ii) The impugned judgment and order dated 24.01.2019, in S.C.No.203/2016 on the file of III Addl.District and Sessions Judge & Spl.Court under POCSO Act, Belagavi is set aside.
(iii) Consequently, accused is acquitted for the offences punishable under Sections 376, 506 IPC and Sections 3, 4 and 6 of POCSO Act, 2012.
21 CRL.A.NO.100074/2019
(iv) He shall be released forthwith, if his presence is not required in any other cases.
(v) The Registry is directed to send back the trial Court records along with a copy of this order forthwith.
(vi) Communicate copy of this order to the trial Court through e-mail.
The Registry is directed to communicate the operative portion of this order to the trial Court and concerned Jail Authorities forthwith.
Sd/-
JUDGE RR