Karnataka High Court
Manjunatha vs The State Of Karnataka on 11 July, 2023
Author: K.Natarajan
Bench: K.Natarajan
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CRL.A No. 1832 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 1832 OF 2019
BETWEEN:
MANJUNATHA,
S/O MANI,
AGED ABOUT 28 YEARS,
R/O ANASAVALLI VILLAGE,
SHIVAMOGGA TALUK,
SHIVAMOGGA-577 201.
...APPELLANT
(BY SRI K.V.SATEESHCHANDRA, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
WOMEN POLICE STATION,
SHIVAMOGGA-577 201,
REPRESENTED BY:
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
Digitally signed by
SHOBHA C
...RESPONDENT
Location: High Court of
Karnataka
(BY SRI S.VISHWA MURTHY, HCGP)
THIS CRIMINAL APPEAL FILED U/S 374(2) CR.PC PRAYING TO
SET ASIDE THE ORDER OF CONVICTION DATED 16.09.2019 AND
SENTENCE DATED 24.09.2019, PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SPECIAL JUDGE, SHIVAMOGGA, IN
S.C.NO.209/2014, CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 366,376(2)(i)(n) OF IPC
AND SECTION 6 OF POCSO ACT AND ETC.,
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1832 of 2019
JUDGMENT
This appeal filed by the appellant/accused under Section 374(2) of the Criminal Procedure Code for setting aside the judgment of conviction and sentence passed by the I Additional Sessions Judge and Special Judge, Shivamogga in S.C.No.209/2014 for having found the appellant guilty and convicted and sentenced to undergo imprisonment for 10 years and pay a fined of Rs.10,000/-, in default shall undergo imprisonment for one year for the offences punishable under Section 6 of POCSO Act, 2012 r/w Section 376 (2)(i)(n) of IPC. Further the accused shall undergo imprisonment for a period of 5 years and to pay a fine of Rs.5,000/-, in default of payment of fine the accused shall further undergo simple imprisonment for a term of six months, for the offence punishable under Section 366 of IPC. Both the sentences are ordered to run concurrently.
2. The ranks of the parties before the Trial Court is retained for convenience.
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3. Heard the learned counsel for the appellant and the learned HCGP appearing for the Respondent/ State.
4. The case of the prosecution is that on the complaint of PW-1 Smt.Gayathri, Aunt of the victim girl filed with the police on 09.06.2014 alleging that when herself and the victim girl aged about 14 years (PW-4) were sleeping in her house on 08.06.2014, and early in the morning, at around 4.00 a.m. they woke up to attend nature call and again both of them came inside the house and slept. But after half an hour when the Aunt of the victim girl woke up and searched for the victim girl, she was not available in the house and hence, she lodged a complaint alleging that the accused has abducted her. After registering the FIR, during investigation, the accused as well as the victim came to the police station and surrendered herself on 07.07.2014. Accordingly, the accused was arrested on 08.07.2014 and was remanded to judicial custody, till date, he is in jail. After completion of the investigation, the police filed the charge-sheet and charges were framed against the accused for the offences punishable under Sections 366A, 376(2)(i) of IPC and Section 4 of POCSO Act. He denied the charges and claims to be tried. Accordingly, the prosecution examined 9 -4- NC: 2023:KHC:24516 CRL.A No. 1832 of 2019 witnesses and got marked 14 documents. After closing of the evidence, the statement of the accused under Section 313 is recorded. The case of the accused is one total denial and no witnesses were examined on his behalf except marking Exs.D1 to D5, which is the portion of statement marked during the cross-examination of PW-4. The Trial Court found the accused guilty and sentenced him to undergo the sentence as stated in paragraph No.1 of the judgment.
5. The learned counsel for the appellant has strenuously contended that the judgment of the Trial court is not sustainable in law. As per the evidence of PW-4, the victim girl herself has stated before the Doctor that her age is 17 years though as per the School record, she was 14 years. But the evidence of PW-6 Revanna who is the Head Master of the School where the victim girl was studying has stated in his evidence that there were so many students studying the same name in the School and it was not proved that she was the victim girl, aged about 14 years. Therefore, the age of the victim girl cannot be considered as 14 years and she must be above 14 years. She herself went with the accused and married him and therefore, it cannot be brought under the -5- NC: 2023:KHC:24516 CRL.A No. 1832 of 2019 category of kidnapping under Section 366 of IPC and she is having worldly knowledge and therefore, the offence under Section 376 of IPC and Section 4 of POCSO Act cannot be made out. Hence, he prayed to allow the appeal.
6. Per contra, the learned HCGP supported the judgment of conviction and sentence and contended that the age of the victim girl is 15 years and the consent is immaterial for the offence under Sections 366A, 376(2) of IPC and Section 4 of POCSO Act and prays to dismiss the appeal.
7. Having heard the learned counsel for the parties, perused the records.
8. On perusal of records, the following points would arise for consideration:
i) Whether the prosecution proves beyond reasonable doubt that the appellant-accused had abducted the victim-minor girl from the custody of P.W.1 and taken her to Erode, Tamil Nadu, and sexually assaulted her, and thereby, he has committed the offences punishable under Section 366, 376(2)(n)(v) of IPC and Section 6 of POCSO Act ?-6-
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ii) Whether the judgment of conviction and the order of sentence passed by the trial Court calls for interference?
9. Prior to the appreciation of evidence, it is worth to mention the evidence of the prosecution witnesses.
10. P.W.1 - Gayathri is the aunt of the victim. She has filed the complaint before the police as per Ex.P.1. P.W.1 has deposed that, the victim is the daughter of her sister, who left the victim child when she was at the age of 2 years and therefore, P.W.1 is looking after the victim. She has deposed that, she resides along with her parents at Agasavalli village. The accused also stays near the house of the victim. P.W.1 has further deposed that from the night of 08.06.2014, the victim was missing. She suspected that accused could have kidnapped her and therefore, she lodged the complaint. P.W.1 has also deposed that, after a month, the police called her to the police station and she found the victim and accused in the police station. Thereafter, the victim was taken to hospital for medical examination and thereafter, she was sent back to home. P.W.1 has identified Ex.P.1- complaint and Ex.P2-spot panchanama. -7-
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11. P.W.2-Shivarama has turned hostile and not supported the case of prosecution.
12. P.W.3-Dr. Madhu has examined the victim and gave her report as per Ex.P5. As per the evidence of P.W.3, the hymen of the victim was ruptured and the victim has undergone the act of sexual intercourse and the age of the victim is 17 years.
13. P.W.4-victim has deposed before the Court that she is residing with her aunt-P.W.1 and she is aged 14 years, she has studied up to 8th standard, the accused is known to her even prior to lodging of the complaint. Both of them were having friendship, on account of which, they fell in love. P.W.4 has further deposed that on the day of the incident, when she was in the house, the accused called to the mobile of her aunt and said the victim that they would go out of the house and get married. Accordingly, at about 3.00 a.m., the accused came on bike near the house of the victim, she took two pairs of dress and went along with the accused. He took her on bike to Bhadravathi and from there, they went to Bangalore by bus and -8- NC: 2023:KHC:24516 CRL.A No. 1832 of 2019 they went to Erode, Tamil Nadu from Bangalore. Later, they stayed in the house of his friend one Manjunath at Erode. P.W.4 has further deposed that during their stay at the house of Manjunath, the accused had sexual intercourse with her. Though she opposed for intercourse on the ground that they had not married, the accused forcefully had sexual intercourse with her. Thereafter, the accused married her and both of them stayed in their house. P.W.4 has also deposed that, later, she came to know from the mother of the accused that a complaint has been lodged and hence, they came back to Shivamogga and surrendered before the police. Her aunt as well as her grand parents came to police station and they took her to the hospital. Thereafter, she was later taken to Tamil Nadu for conducting Panchanama. She was also produced before the Magistrate for recording statement. She has identified Ex.P.4 - photograph.
14. P.W.5-Kumari Madhu, PSI, has deposed that she received complaint from the complainant and registered FIR as per Ex.P.6 and prepared spot panchanama as per Ex.P.2. She -9- NC: 2023:KHC:24516 CRL.A No. 1832 of 2019 collected school certificate as per Ex.P.7 from P.W.6 and handed over investigation to P.W.9.
15. P.W.6 Revanna, a retired head master has given evidence that on the requisition of police, he has given the school certificate extract as per Ex.P.7. As per his evidence, the victim was studying in the 8th standard.
16. P.W.7-Dr. Vrunda Bhat has deposed that she examined the accused regarding potency and she has given certificate as per Ex.P.9.
17. P.W.8-Anitha Kumari, PSI of Women Police Station, has accompanied the victim to Erode, Tamil Nadu, for preparing panchanama and she has prepared the panchanama as per Ex.P.3, a sketch as per Ex.P.10 and a report as per Ex.P.11.
18. P.W.9-Deepak has investigated the matter and filed charge sheet.
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19. On perusal of the entire evidence of the prosecution witnesses, it indicates that P.W.4-victim was said to be at the age of 15 years as on the date of incident. Learned counsel for the appellant-accused has disputed the age of the victim stating that she was not aged 15 years but she was aged 17 years as per her own statement made to P.W.3-Doctor as per Ex.P.5. The evidence of P.W.3 reveals that the age of the victim was 17 years. Of course, as per the evidence of P.W.6- Head Master, he has given the school certificate and has stated that there were many children, who had studied in the school, had the same name as the name of the victim. The prosecution has not brought proper evidence to show that the age of the victim was either 14 years or 15 years as on the date of incident by producing documents. Ex.P.7 reveals the date of birth of the victim as 30.05.2000 and she has passed the 8th standard in the year 2013-14. In view of non-production of proper details from the school authorities, it cannot be accepted that the victim was aged 14 years as on the date of incident. On the other hand, the victim herself has given evidence before the Court stating that her age was 17 years. The doctor has not conducted ossification test in order to
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NC: 2023:KHC:24516 CRL.A No. 1832 of 2019 further confirm the age of the victim. Therefore, the age of the victim can be considered as 17 years and not 15 years.
20. On perusal of evidence of P.W.4-victim, she has stated that she had a love affair between herself as well as the accused, and on the request of the accused, she accompanied him on the motor cycle from Shivamogga to Bhadrdavathi. Thereafter, they boarded a bus and came to Bengaluru and again, from Bengaluru, they went to Erode, Tamil Nadu and stayed in the house of Manjunath. Almost, for 25 days, they stayed at Erode in Tamil Nadu and after coming to know of the filing of the complaint, they came voluntarily and surrendered to the police. The evidence of P.W.4-victim clearly reveals that she was the consenting party to the incident. In this regard, the learned High Court Government Pleader submits that the age of the victim is below 18 years and therefore, the offence falls under Section 366 of IPC and the provisions of POCSO Act.
21. However, Section 361 of I.P.C. deals with kidnapping, which reads as under:
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361. Kidnapping from lawful guardianship.--
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
22. Mere reading of the aforesaid provision states that if a female under the age of eighteen years is taken out from the lawful guardian, it is said to be kidnapping. P.W.1 is the guardian of the victim, who is the younger sister of the mother of victim. The mother of the victim left the victim when she was aged about 2 years. Therefore, P.W.1 looked after the victim. Ultimately, the victim accompanied the accused which amounts to kidnapping for the purpose Section 361 of IPC seduced her for illicit inter course with accued. The punishment provided for the said offence is under Section 366 of IPC. Learned counsel for the appellant has contended that even accepting that the consent was given by the victim, the offence under Section 366 of IPC does not attract. But the arguments of counsel cannot be accepted.
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23. Perusal of the evidence of P.W.3 shows that she has issued the medical certificate stating that the hymen of the victim was ruptured The evidence of P.W.4-victim also shows that the accused took the victim to Erode, Tamil Nadu and committed sexual assault on her, though she said that they had not married and therefore, the accused married the victim and again, had sexual intercourse with her. For the purpose of Section 376 of IPC, it is worth to mention Section 375 of IPC, which states as under:
375. Rape.-- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: -
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NC: 2023:KHC:24516 CRL.A No. 1832 of 2019 First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-With or without her consent, when she is under eighteen years of age.
Seventhly.-When she is unable to communicate consent.
24. Admittedly, the age of the victim is below 18 years and therefore, the offence under Section 375 of IPC is made out by the prosecution.
25. Exception to Section 375 of IPC reveals that Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
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26. Considering the fact that as per the evidence of P.W.4, she has stated that prior to marriage, the accused had forcible sexual intercourse with her even though she resisted. Later, after their marriage, they lived as husband and wife, and the accused had sexual intercourse with her, it cannot be considered as an offence. Considering the aforesaid fact, the offence falls under Section 375 of IPC, but not under Section 376(2)(n) of IPC. However, before the marriage the accused had sexual intercourse with her. Therefore, the prosecution has proved the offence under Sections 376 and 366 of IPC.
27. Section 376(1) of un-amended IPC provides for the minimum punishment of 7 years and extend to life imprisonment. The trial Court has awarded the imprisonment of 10 years. Therefore, this requires to be reduced to 7 years instead of 10 years imprisonment.
28. Section 6 of the POCSO Act states that where the accused has committed the sexual intercourse on the victim, it cannot be brought under Section 5 of POCSO Act but the offence falls under Section 4 of POCSO Act. The punishment
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29. In view of my reasoning, I pass the following order:
(i) The appeal is allowed in part.
(ii) The judgment of conviction and the order of
sentence passed by the trial Court is hereby modified as under:
(iii) The appellant-accused is found guilty and convicted for the offences punishable under Sections 366 and 376 of IPC read with Section 4 of the POCSO Act and he is sentenced to undergo rigorous imprisonment of 7 years and to pay fine of Rs.10,000/- and in default, to undergo simple imprisonment for 3 months for the offence under Section 376 of IPC read with Section 4 of POCSO Act.
(iv)The appellant is further sentenced to undergo rigorous imprisonment of 5 years and to pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for 3 months for the offence under Section 366 of IPC.
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(v) Both the sentences are ordered to shall run concurrently.
(vi) The appellant-accused is entitled to set off under Section 428 of Cr.P.C. during the trial stage as well as at the appellate stage and he is set at liberty if he is already undergone sentence.
(vii) The fine about shall be paid to the victim as compensation.
(viii) Office is directed to send a copy of this judgment to the trial Court.
Sd/-
JUDGE DH,CS List No.: 1 Sl No.: 26