Karnataka High Court
Girish S/O Rudrappa Turkani vs State Of Karnataka on 16 January, 2024
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CRL.A No.100011/2014
C/W CRL.A.No.100020/2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No.100011/2014
C/W
CRIMINAL APPEAL No.100020/2014
IN CRIMINAL APPEAL No.100011/2014
BETWEEN:
JAFARSAB MOULASAB HAVANAGI
AGE: 20 YEARS, OCC: MASON
R/O.BANNUR VILLAGE
TQ:SHIGGAON, HAVERI DISTRICT
...APPELLANT
(BY SRI.R.M.JAVED, ADVOCATE)
AND:
MANJANNA
E
STATE OF KARNATAKA
Digitally signed
by MANJANNA E
THROUGH KUNDAGOL P.S.
Date: 2024.02.03
12:58:41 +0530
REP. BY SPP, HIGH COURT BENCH
DHARWAD
...RESPONDENT
(BY SRI.M.H.PATIL, AGA)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO SET ASIDE THE SENTENCE AND
ORDER OF CONVICTION IN SPL. S.C. NO.3/2013 PASSED BY
THE PRL. DISTRICT & SESSIONS (SPL.) JUDGE, DHARWAD,
DATED 28.12.2013 CONVICTING THE APPELLANT (ACCUSED
NO.2) AND SENTENCED TO UNDER GO RI FOR 5 YEARS AND
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CRL.A No.100011/2014
C/W CRL.A.No.100020/2014
PAY FINE OF RS.1000/- ID TO FURTHER UNDERGO SI FOR 6
MONTHS FOR THE OFFENCE P/U/S 363 R/W 34 OF IPC AND HE
IS ALSO SENTENCED TO UNDERGO RI FOR 10 YEARS AND PAY
FINE OF RS.50,000/- ID TO FURTHER UNDERGO SI FOR ONE
YEAR FOR THE OFFENCES U/S 6 R/W 17 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, AND THEREBY
ACQUIT THE APPELLANT.
IN CRIMINAL APPEAL No.100020/2014
BETWEEN:
GIRISH
S/O. RUDARAPPA TURKANI
AGE: 23 YEARS, OCCUP: MECHANIC
R/O.: BANNUR VILLAGE, TQ:SHIGGAON
DIST:HAVERI
...APPELLANT
(BY SRI.M.B.GUNDAWADE, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH CPI KUNDGOL P.S.
KUNDGOL
REP. BY SPP, HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
...RESPONDENT
(BY SRI.M.H.PATIL, AGA)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO SET ASIDE THE CONVICTION
DATED 28.12.2013 AND SENTENCE ORDER DATED 30.12.2013
PASSED BY THE PRL. DIST & SESSIONS & SPECIAL JUDGE,
DHARWAD IN SPL. S.C. NO.3/2013 AND ACQUIT THE ACCUSED
NO.1/ APPELLANT FOR THE CHARGED FRAMED AGAINST HIM.
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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CRL.A No.100011/2014
C/W CRL.A.No.100020/2014
JUDGMENT
Appellant/accused No.1 filed criminal appeal 100020/2014 and Appellant/accused No.2 filed Criminal Appeal No.100011/2014 feeling aggrieved by judgment of trial Court on the file of District and Sessions (Spl.) Judge, Dharwad in Spl.S.C.No.3/2013 dated 28.12.2013 preferred these two appeals.
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 accused No.1 knowing that victim daughter of complainant is minor was teasing on the pretext of loving her and accused No.2 was abetting the said act of accused No.1. About 20 days prior to 24.12.2012 in Bannur Village of Shiggaon Taluk, accused have kidnapped the victim from lawful guardianship of her parents. Accused have kidnapped the victim to compel her marriage with accused -4- CRL.A No.100011/2014 C/W CRL.A.No.100020/2014 No.1 by administering threat of killing the victim, if she resist for their acts. Thereafter both the accused carried the victim to Aihole and then to Bengaluru. The prosecution further alleges that on the abetment of accused No.2, accused No.1 kept the victim in the shed of CW-23 Muniraju and committed sexual assault on her. Accused No.1 on inducement of marrying her and in spite of resistance of victim against her will committed sexual assault on her. Accused No.1 knowing that victim was minor as on the date of kidnapping her has committed penetrative sexual assault on her in Aihole and in the shed of CW-23 Ganesh Muniraju. Accused No.2 caused abetment for all the act of accused No.1 in kidnapping and also for committing sexual assault on the victim. On these allegations made in the complaint, the investigating officer on completion of investigation, filed the charge sheet against accused No. 1 and 2 for the offences punishable under Section 363, 366, 366(A) r/w Section 34 of IPC, Section 376 of IPC and Section 6 and 17 of the -5- CRL.A No.100011/2014 C/W CRL.A.No.100020/2014 Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act' for brevity).
4. In responses to the summons, accused No.1 and 2 have appeared through their respective counsel. The trial Court on being prima facie satisfied of the charge sheet materials, framed the charges against accused for the offences alleged against them. Accused have pleaded not guilty and claimed to be tried. Prosecution to prove the charges leveled against the accused relied on the oral evidence of PWs. 1 to 19 and documents Exhibits P1 to P29, so also got identified MOs. No.1 to 7.
5. On closer of prosecution evidence, statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused have denied all the incriminating material evidence appearing against them and claimed that false case is filed. Accused have examined DWs. 1 to 3 on their behalf and Exhibits D1 to D6 came to be marked during the cross-examination of prosecution witnesses. Exs. C1 and C2 came to be marked which were produced by DW-2. The trial Court after hearing the arguments of -6- CRL.A No.100011/2014 C/W CRL.A.No.100020/2014 both sides and on appreciation of oral and documentary evidence placed on record convicted both the accused for the offences proved against them and imposed sentence as per order of sentence.
6. Appellants/accused No.1 and 2 in both the appeals challenging the judgment of trial Court contented that trial Court has not properly appreciated the evidence placed on record in the light of defence of accused and the evidence of DWs.1 to 3. The oral evidence of material witnesses PW-1 victim, PW-2 Mahadevappa grandfather of victim PW-3 Laxmavva mother of victim is in inconsistent with each other version and there are number of omissions and contradictions in their evidence which would be sufficient to create serious doubt on the charges leveled against accused. Accused No.2 has taken plea of alibi and he was working in Goa at the relevant point of time when the victim was alleged to have been kidnapped from the place as claimed by the prosecution. The evidence placed on record in the form of DWs. 2 and 3 coupled with the documents Exs.D4 to D6 has not been properly -7- CRL.A No.100011/2014 C/W CRL.A.No.100020/2014 appreciated by the trial Court and as a result recorded improper findings in holding accused No.2 guilty for the offence under Section 17 of the POCSO Act. There is no any evidence against accused No.2 that he has abetted accused No.1 for committing sexual assault on victim. Therefore, the trial Court has committed serious error in convicting accused No.2 with the aid of Section 17 of the said Act for the alleged act of accused No.1 in committing penetrative sexual assault on victim. There is no any evidence placed on record by the prosecution to prove that accused No.1 has committed penetrative sexual assault on victim PW-1 and her evidence is totally unreliable to prove the allegations made against accused No.1. The Auto or Four Wheeler, Motorcycle alleged to have been used by accused No.1 and 2 for kidnapping the victim PW-1 have not been seized in this case and the prosecution has offered no any valid reason for non-seizer of the vehicles. The age of victim PW-1 has not been proved out of the evidence placed on record by the prosecution. The age determination test of victim PW-1 conducted by the PW-19 -8- CRL.A No.100011/2014 C/W CRL.A.No.100020/2014 Dr. Sunil Kumar and the certificate Ex-P24 and document produced by PW-18 Hanamantappa, Tahsildar of Kundagol with reference to the birth register Ex-P28 stands contrary to the one given by PW-11 Mahadev, Principal of Government Girls High School, Saunshi on the basis of records of the school Ex-P13. The prosecution has failed to fix the age of victim PW-1 to hold that she was minor as on the date of incident. The approach and appreciation of oral and documentary evidence by Trial Court and the finding recorded in holding both the accused guilty are contrary to the evidence on record and the same cannot be legally sustained. Therefore, prayed for allowing both the appeals and to set aside the judgment of conviction and order of sentence passed by trial Court, consequently to acquit accused No.1 and 2 from the charges levelled against them.
7. In response to the notice of both appeals, the learned HCGP has appeared for the State in both the appeals. The trial Court records have been secured.
8. Heard the arguments of both sides.
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9. After hearing arguments of both sides and on perusal of trial Court records, so also the judgment, the following points would arise for consideration:
1. Whether the trial Court has not properly appreciated the evidence on record and committed serious error in convicting both the accused for the offences alleged against them?
2. Whether the judgment of trial Court requires any interference by this Court?
10. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would reveal that prosecution alleges that accused No.1 knowing fully well that PW-1 victim is minor and on the pretext of loving her, used to tease and accused No.2 was abetting the such act of accused No.1. About 20 days prior to 24.12.2012 accused have kidnapped the victim PW-1 from Bannur Village of Shiggaon Taluk from lawful custody of her parents and carried her to Aihole and then to Bengaluru under threat of killing her, if she scream for help. Accused No.1 kept PW-1 victim in the shed of CW-23
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 Ganesh Muniraju and during the stay in the said shed, committed penetrative sexual assault on PW-1 victim in spite of resistance and against her will. Thereafter, accused No.1 has left the victim in Bannur Village and she informed about the incident to her mother. The mother of victim to avoid any unforeseen events in future kept her daughter in Saunshi Village, where her father was residing. After some time while the grandfather of victim Mahadevappa and victim were proceeding to their land, at that time accused No.1 and 2 by force have taken away the victim PW-1 in the vehicle brought by them by closing her mouth and pushing her grandfather to the ground. The victim was carried to Bengaluru and accused No.1 kept the victim in the shed of CW-23 Ganesh Muniraju where they stayed for more than a month and during the said period, accused No.1 has committed penetrative sexual assault on victim against her will and in spite of resistance. Thereafter, police had come to Bengaluru on the information received by them and brought PW-1 victim and accused No.1 to Kundagol.
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014
11. The prosecution to prove the allegations made against accused No.1 and 2 mainly relies on the oral testimony of PW-1 victim, PW-2 Mahadevappa grand father of victim and PW-3 Laxmavva the mother of victim. The prosecution to prove the age of victim relies on the oral testimony of PW-11 Mahadev headmaster of the school, PW-18 Hanamanth Tashildar of Kundagol and PW-19 Dr. Sunil Kumar. The prosecution also seek to rely on the evidence PW-9 Dr.Drakshayini and PW-10 Dr. Nachiket to prove the sexual assault on PW-1 victim and her age. The evidence of above referred witnesses is sought to be corroborated by the evidence of PW-15 Mahadevappa, ASI Kundgol police station and PW-16 Gurulingappa Maribashetty. Whether the said evidence placed on record by the prosecution is sufficient to bring home the guilt of accused or not is to be decided by appreciating the evidence placed on record.
12. In a case of sexual assault on a minor victim for the offence under Sections 376, 363 of IPC and Section 6 of the POCSO Act, the prosecution has to prove by placing
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 requisite evidence regarding the age of victim. The trial Court has referred the judgment of Hon'ble Apex Court in Ashwini Kumar Vs. State of Madhya Pradesh reported in (2013) 1 SCC (Cri) 594, wherein it has been observed and held as under:
"Age determination inquiry" contemplated under Section 7-A of the JJ Act read with Rule 12 of the 2007 rules enables the Court to seek evidence and in that process, the Court can obtain matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, does the Court need to obtain the date of birth certificated from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or date of birth certificate from the school first attended, the Court needs to obtain the birth certificate given by the corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are un available. In case exact assessment of the age cannot be done, then the Court, for reasons
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to be recorded, may, if considered necessary give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year".
In view of the principle enunciated in this judgment by Hon'ble Apex Court, it is evident that the documents referred as above in order will have to be taken into consideration while determining the age of victim. As per the JJ Rules, the matriculation or equivalent certificate or in its absence, the date of birth certificate from the school first attended or the birth certificate given by the Corporation of the Municipality or Panchayat can be relied. In the absence of these documents, the medical opinion has to be sought from the duly constituted Medical Board which will declare the age of the juvenile or the child. The Hon'ble Apex Court in another judgment in Mahadeo v/s State of Maharashtra and Another reported in (2013)14 SCC 637 wherein in paragraph 14 has held as under:
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"In every case concerning a child or juvenile, the age determination enquiry shall be conducted by the Court or the Board as the case may be, by securing the records of the school first attended by the child, next matriculation or equivalent certificate, next the date of birth certificate of the school and in the absence where of, the birth certificate given by the corporation or municipal authority or a panchayat and only in the absence of such documents can rely on medical documents determining the age of child or juvenile".
It is also profitable to refer another judgment of Hon'ble Apex Court in State of Madhya Pradesh v/s Anoop Singh reported in (2015)7 SCC Page No.773 has reiterated the principles in Mahadeo case referred supra. In view of the principles enunciated in the aforementioned judgments of Hon'ble Apex Court, the evidence placed on record has to be appreciated in determining the age of victim PW-1.
13. PW-11 Mahadev Malladad, Principal of Government Girls High School Saunshi has issued the birth
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 certificate of PW-1 victim Ex-P13 while admitting her to 8th standard in the school on the basis of transfer certificate issued by the earlier school authorities, where victim has studied 7th standard and the age of PW-1 victim is shown as on 02.06.1998. It has been elicited in the cross- examination of PW-11 Mahadev Mallad that PW-1 victim studied in Bannur High School up to 7th standard and the entries in the said school record will be made regarding the age of PW-1 victim and such school records will be maintained by them and witness has admitted the said suggestion of counsel for accused No.1. This witness has been recalled by the prosecution for further evidence and during course of further evidence, admission register form is produced at Ex-P13 (C) while admitting PW-1 victim in Saunshi Girls High School and also transfer certificate of Bannur Government High School Ex-13 (D) and original file brought by witness from the school has been returned to him. The said further evidence of PW-1 would meet the requirement as suggested in the cross-examination of accused No.1 regarding the basis on which the entries in
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 the school record Ex-P13 came to be entered as the date of birth of PW-1 victim 02.06.1998. On the basis of Transfer Certificate Bannur Government High School Ex-P13(D), the entries in Ex.P.13 were made. There is nothing worth material that has been brought on record in his further cross-examination to discredit his evidence regarding the recording of date of birth of PW-1 victim as on 02.06.1998. The learned counsel for accused has argued that papers in the file looking to be fresh and the concoction of entries to suit the purpose cannot be ruled out. The witness is a third person who has nothing to do with the allegations made against accused and he has given evidence before the Court on the basis of records maintained in the school. Therefore, no any motive can attributed to this witness for having deposed before the Court in favor of the prosecution.
14. The evidence of PW-18 Hanamanthappa, Tashildar Kundagol was summons by the Court to produce the documents relating to the date of birth of PW-1 victim. During the course of his evidence has produced the extract
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 of the register Ex-P28 and copy of the relevant register at Ex-P28(A) and at serial No.133, the name of father of victim is recorded as Ningappa Naganur and the date of birth of PW-1 victim is recorded as 20.08.1998. On the basis of it, the birth certificate was issued by the Tashildar Ex-P29. In these two documents Ex-P28 and P29, the date of birth of PW-1 victim is recorded as 20.08.1998. It is true that there is variation in recording the date of birth of PW-1 victim in the school records as 02.06.1998, whereas in the birth extract register maintained by the Tashildar office, Kundagol the date of birth of PW-1 victim is recorded as 20.08.1998. There is difference of two months and odd days in the date of birth recorded by the Tashildar office as on 20.08.1998. The name of father and mother of PW-1 victim is not disputed by the accused, therefore, it can be taken that the birth certificate Ex-P29 pertains to the prosecutrix. The date of incident is on 24.12.2012. If the age of PW-1 victim is calculated on the basis of date of birth of PW-1 victim recorded in the school record Ex-P13, as 02.06.1998 and the one recorded on the basis of
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 register of birth maintained in the office of Tashildar, Kundagol as 20.08.1998, then in both the circumstances also the age of PW-1 victim would be 14 plus as on the date of incident and the victim was minor as on the date of incident.
15. Learned counsel for accused have contended that the nurse midwife (ANM) who has given the information for entering the date of birth of PW-1 victim in the register extract Ex-P28 and based on it birth certificate of Ex.P29 came to issued has not been examined. PW-18 Hanamanthappa, Tashildar Kundagol has deposed in his evidence that nurses of ANM Hospital furnishes information regarding the date of birth of child born in the said hospital to the Village Accountant, who records the same in the Register of Birth maintained with him. After one year the Register will be sent to the office of Tashildar Kundagol. It is on the basis of the Register received in the office of Kundagol, Tahsildar Ex-P28, the birth certificate of PW-1 victim was issued Ex-P29. The birth register Ex- P28 will be maintained in the public office by the village
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 accountant in discharge of his official duty. The said village accountant and PW-18 Hanamantappa, Tashildar cannot have any motive to make false entry in the birth register maintained in the office of village accountant during regular course which he was duty bound to maintain in the ordinary course of his work. There is nothing worth material that has been brought on record to disbelieve the evidence of PW-18 Hanamantappa, Tashildar Kundagol who has issued birth certificate Ex-P29 based on the entries made in the register of birth Ex-P28. Therefore, in spite of their being variation of more than two months in the birth certificate maintained by the school authorities Ex-P13 and the birth certificate issued by Tashildar office, Kundgol Ex-P29 cannot take way the case of prosecution. If the date of incident is taken into consideration on 24.12.2012 and calculated to the age of PW-1 victim shown in Ex-P13 in the school records as 02.06.1998 and the one recorded in the birth certificate issued by Tashildar office Kundagol dated 20.08.1998 then also the fact remains that PW-1 victim was 14 plus age as on the date
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 on incident and she was minor further she was below 16 years as on the date of alleged incident 24.12.2012. Therefore, considering the evidence of Dr. Sunil Kumar who has determined age of victim PW-1 between 16 to 18 years and the average age of PW-1 victim is 17 years on the basis of physical, dental and radiological examination, further issuance certificate Ex-P24, there is no need to refer his evidence, in view of the evidence of PW-11 Mahadevappa and the documents Exs-P13, 13 (b), 13 (c), 13 (d) and the one issued by the Tashildar Kundagol Ex- P29. The trial Court has rightly appreciated the above referred evidence on record and justified in holding that PW-1 victim was below 16 years as on the date of incident.
16. PW-1 victim has deposed to the effect that she knows both of the accused before court and she was residing in Bannur Village of Shiggaon Taluk with her parents and brothers. She had studied up to 9th standard and left the school. She further deposed to the effect that her parents got her admitted to school in Saunshi and she
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 used to come to her parents house during the holidays. During 12th month while she was in Bannur, both the accused by force while she was going to attend nature call, took her on the motor cycle driven by accused No.1 and she was pillion rider, accused No.2 sat on the motor cycle next to her, then they took PW-1 victim to the new bus stand of Shiggaon. They proceeded in a bus to Badami, Aihole, Pattadakallu and then Kodipalya of Bengaluru. While they were in Aihole accused No.1 committed sexual assault on her in spite of resistance and against her will. Thereafter, they moved to Pattadakallu and then to Bengaluru. PW-1 victim and accused No.1 stayed in the shed near Nelamangala at Kodipalya, they were in the said shed for about 8 days. Thereafter, accused No.1 left PW-1 victim near stream of Bannur. She went to the house and informed about the incident to her mother.
16(a) PW-1 victim has further deposed that her mother brought her to Saunshi and left in the house of her grandfather. While herself and her grandfather were proceeding to their land for getting fire wood, at that time
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 both the accused by pulling her grand father forcibly took PW-1 victim in the vehicle brought by them and in spite of her resistance, she was not left by the accused. Accused took PW-1 victim to the Saunshi railway station and then they proceeded through railway to Bengaluru and accused No.1 kept her in the said shed. Accused No.2 left the place by saying that he has work and went to Goa. Accused No.1 during their stay in the shed for about one and half month repeatedly committed sexual assault on her under threat. She further deposed to the effect accused No.1 has taken her gold ear stud and gold chain, when she refused for the same, accused No.1 abused her. Thereafter, Kundagol police brought them to Kundagol and she has given her statement, she was subjected to medical examination and showed the house, further she has identified the photograph shown to her Ex-P1 and P2.
17. PW-2 Mahadevappa grandfather of PW-1 victim has deposed to the effect that about 6 months back while himself and PW-1 victim were proceeding to their land for getting fire wood, at that time both the accused on the
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 way came and pushed him to the ground. They forcibly taken his grand daughter PW-1 victim in the vehicle brought by them. He has informed over phone about the incident to his daughter PW-3 Laxmavva who is the mother of PW-1 victim. Thereafter, his daughter filed complaint and police traced PW-1 victim and accused No.1 in Bengaluru and brought them to Kundagol. Police have visited his house and he has given statement before the police.
18. PW-3 Laxmavva has deposed to the defect that she has got 3 children and PW-1 victim is her daughter who is now aged 15 years and she do not know the date of birth of her daughter. About 6 months back in Bannur village her daughter PW-1 victim was proceeding to attend nature call, accused by closing the mouth of her daughter by force took her to Badami Banshankari. PW-1 victim has disclosed the said fact to her when she came back to the house after 8 days. She further deposed to the effect that in spite of her search, PW-1 victim was not traced in Bannur village. There was rumor in the village that mother
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 of PW-1 victim is going to file the complaint, her daughter was brought and left in Bannur village. In order to avoid such incident in future, she has left her daughter PW-1 victim in Saunshi, where her father was residing.
18(a) She further deposed to the effect that her daughter was admitted in Saunshi school. After 8 days of leaving her daughter PW-1 victim in Saunshi, while her father and daughter PW-1 victim were proceeding to get fire wood from their land, the accused came to the said place and by force after closing her mouth carried PW-1 victim in the vehicle brought by them. Thereafter, her father PW-2 Mahadevappa has informed her over phone about the incident. She searched her daughter PW-1 victim for about 8 days and she was not traced, she filed the complaint Ex-P3. After 1 month of filing said complaint Ex-P3, Kundagol police have brought her daughter PW-1 victim and accused No.1 from Bengaluru. On enquiry with her daughter, she disclosed that she was kept in Bengaluru and was not allowed to leave the said place and
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 accused No.1 has spoiled her life. She accordingly given statement before the police.
19. On careful perusal of the above referred evidence of PW-1 victim, PW-2 Mahadevappa, grand father of PW-1 victim and PW-3 Laxmavva, mother of PW-1 victim, it would go to show that she is not an eye witness to the incident of kidnapping her daughter from Bannur or from Saunshi. Her evidence is based on the revelation made by her daughter PW-1 victim with regard to the incident of kidnapping from Bannur village and with regard to the kidnapping incident from Saunshi through the phone call of her father PW-2 Mahadevappa. Her evidence can be relied only to the extent of her daughter PW-1 victim was out of the custody of lawful guardian ship when the first incident took place in Bannur village. Thereafter, she left her daughter in the house of her father PW-2 Mahadevappa in Saunshi village and she was admitted to the school in Saunshi.
20. The tenor of cross-examination of PW-1 victim and also PW-2 Mahadevappa and PW-3 Laxmavva would
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 go to show that accused have not denied of PW-1 victim being in the company of accused No.1 and 2 when both the incident of kidnapping from Bannur and Saunshi took place. PW-1 victim has categorically stated that accused No.2 has done nothing to her. The defence counsel representing accused No.1 during the cross-examination suggested that PW-1 victim was in love with accused No.1 and she has denied the same. It is further suggested to victim that she herself forced accused No.1 to take her out of the village and same is denied by the victim. In paragraph 23 of cross-examination of PW-1, it has been suggested to her that she herself came to Bengaluru and asked accused No.1 not to leave her. However, accused No.1 told her that she has not yet completed 18 years and advised her, but she threatened of committing suicide and started crying. Due to which, on mercy he allowed PW-1 victim to reside in the house with him as friends and the same is denied by the victim. She stayed in the house with him for about one and half months on her own volition and he has not committed any sexual assault on her. If the
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 above referred cross-examination is perused, then it would go to show that accused No.1 has taken inconsistent stand regarding PW.1 victim herself joined to him at Bengaluru. Therefore, without there being any corroboration to the above referred defence of accused No.1, the contention of accused No.1 that PW.1 victim herself joined to him cannot be accepted in the given facts and circumstances of the case and the evidence on record. It has been suggested to PW-2 Mahadevappa that his wife herself has sent PW-1 victim to the railway station with cash and cloths and the witness has denied the same. However, PW-3, the mother of victim has admitted in her cross- examination that accused No.1 was loving her daughter.
21. During the cross-examination of PW-1 victim, some contradictions have been elicited and such contradictions have been marked as Ex-D1, Ex-D1(a), Ex-D1(b) which pertains to the fact that PW-1 victim was loving accused No.1 and in turn accused No.1 was also loving her, further, she was expressing her desire to marry accused No.1 and living peacefully. The said
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 contradictions are related to the alleged love affair between prosecutrix and accused No.1. These contradictions in the evidence of PW-1 victim could have been appreciated if PW-1 victim was minor as on the date incident. In view of the reasons recorded above, it is held that the prosecution has proved that PW-1 victim was below the age of 15 years as on the date of incident. Therefore, the above referred contradictions and the admission of PW-3-Laxmavva, mother of victim that accused No.1 was loving PW-1 victim cannot affect the case of prosecution. If for the sake of arguments, even if it is to be accepted that PW-1 victim has moved with accused No.1 at different places and they were living together in the shed at Kodipalya, Bengaluru without their being any resistance from PW-1 victim and she was residing with accused No.1 in the shed, then such consent of minor is no consent at all in eye of law.
22. The trial Court in para 39 and 40 of its judgment with reference to judgment of Hon'ble Apex Court in State of Haryana vs. Basti Ram reported in
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 2013(2) SCC 200 and another judgment in O.M.BABY v/s State of Kerala reported in (2013)1 SCC (Cri) 658 with respect to appreciation of medical evidence has recorded finding that principles enunciated in both the aforementioned judgments of Hon'ble Apex Court would clear that the absence of any injuries or marks of violence on the person of prosecutrix may not be decisive factor, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
23. PW-1 victim is the prime witness in this case and in the nature of incident like on hand, independent witnesses cannot be expected. If the evidence of PW-1 victim is found trust worthy, the same has be accepted. PW-1 victim during the course of her evidence is firm and certain about accused No.1 having committed sexual assault on her while they stayed in Aihole and in the shed of Kodipalya of Bengaluru. There is nothing worth material evidence that has been brought on record to discredit her evidence. The evidence of PW-3 Laxmavva, mother of victim PW-1 has narrated about the incident revealed by
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 her daughter and filing of the complaint Ex-P3. The evidence on record would also suggest that PW-1 victim was out of lawful custody of her parents and she was in the company of accused No.1 in the shed at Kodipalya of Bengaluru. The evidence of PW-2 Mahadevappa, grand father of PW-1 victim would go to show that he is the eye witness to the incident of kidnapping PW-1 victim in Saunshi village while himself and PW-1 victim were proceeding to their land for getting fire wood. He has deposed to the effect that both the accused by force took PW-1 victim by pulling him to the ground in the vehicle brought by them. There are absolutely no any valid reason to discard the evidence of PW-2 Mahadevappa, grandfather of PW-1 victim that both the accused have kidnapped victim PW-1 from Saunshi village and took her in the vehicle brought by them by pushing him to the ground. The evidence of PW-1 victim is consistent regarding she being kidnapped by both the accused from Bannur and Saunshi village. The contention of accused No.1 that PW-1 victim on her own volition came to
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 Bengaluru and he allowed PW-1 victim to reside in the shed with him on mercy cannot be legally sustained, since PW-1 victim was below the age of 15 years as on the date of incident. The fact of PW.1 victim being minor was within the knowledge of accused No.1, since even according to him, he has advised PW.1 victim that she has not yet completed 18 years.
24. PW-1 victim is firm and consistent in her statement during the course of her evidence that accused No.1 has committed penetrative sexual assault on her in Aihole and also repeated penetrative sexual assault in the shed while they were residing together in the said shed. The contention of accused No.1 that PW-1 victim herself came to Bengaluru and asked him not to leave her, though he advised PW-1 victim that she has still not completed the age of 18 years. However, PW.1 victim was not amenable to such advice and threatened of she committing suicide, therefore he allowed PW-1 victim to reside with him on mercy. It means that accused No.1 wants to claim that PW-1 victim was consenting party to
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 all the acts of accused No.1. Such consent of PW-1 victim is no consent at all in the eye of law. Therefore the contention of accused No.1 that PW-1 victim was consenting to the acts of accused No.1 cannot be legally sustained.
25. The evidence of PW-8 Yogananda, would go to show that he has examined accused No.1 and issued the certificate Ex-P9 on the basis of FSL report of the articles sent for FSL examination MO Nos.1 to 7 and also stated that there is nothing to suggest that the person cannot perform sexual act. The said evidence of PW.8 Yogananda would go to show that accused No.1 is capable of performing sex.
26. PW-9 Dr. Drakshayani Patil, has examined the victim girl on 01.02.2013 at 4.10 p.m. She only deposed to the effect that on examination of vagina, foul smell was emanating and the hymen admitted two fingers easily. The victim has informed her that she had changed her cloths after taking bath. PW-1 victim was referred to KIMS Hospital, Hubli for further examination.
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014
27. PW-10 Dr.Nachiketh has examined PW-1 victim on 01.02.2013 at KIMS, Hubli and there were no external injuries on the body of PW-1 victim and there were also no evidence of fresh sexual intercourse and the victim is used to act like that of sexual intercourse and accordingly he issued certificate Ex-P12. The witness has offered explanation regarding fresh injuries means sexual intercourse within 5 hours from the time of examination.
28. On critical analysis of the evidence of PW-9 Dr.Drakshayani Patil and PW-10 Dr.Nachiketh, it would go to show that there is material evidence that the victim is used to act like that of sexual intercourse. The incident in question took place on 24.12.2012 and PW-1 victim was examined on 01.02.2013. There is sufficient time gap in between the period, therefore nothing could be traced out about PW-1 victim being subjected to sexual intercourse while she was in the company of accused No.1 in the shed at Kodipalya, Bengaluru. The medical evidence relied by the prosecution would not be conclusive to hold that victim was not subjected to penetrative sexual assault recently.
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 The evidence of PW-1 victim is firm and consistent regarding accused No.1 having committed penetrative sexual assault on her by force in spite of her resistance. The trial Court with reference to the judgment of Hon'ble Apex Court in O.M.Baby v/s State of Kerala supra has appreciated the evidence of PW-1 victim and held that the evidence of PW-1 victim is reliable to prove the fact that accused No.1 has committed penetrative sexual assault on her. The fact that PW-1 victim and accused No.1 were traced in Kodipalya, Bengaluru by police and brought them to Kundagol has not been denied by accused No.1. There is nothing worth material that has been brought on record during the cross-examination of PW-1 victim that she has reason to falsely implicate accused No.1 having committed penetrative sexual assault on her by putting her character at stake. The defence of accused also assumes much importance while appreciating the evidence of PW-1 victim. The contention of accused No.1 that himself and victim were in love and though they intended to marry, the caste matter of PW-1 victim and the accused No.1
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 came in the way of their further proceeding in the marriage and his further contention that he allowed PW-1 victim to live in his house with him on mercy cannot be legally sustained, since PW-1 victim is below the age of 15 years.
29. The evidence of PW-15-Mahadevappa-ASI and PW-16 Gurulingappa Maribashetti who are the investigating officers of the case have deposed about the investigation carried out by them after criminal law was set into motion. The evidence of PWs. 4 to 7 and 17 is with respect to panchanama prepared in their presence Exs. P4, P6, P7 and P17 and the said evidence has not been seriously disputed by the defence.
30. The learned counsel for accused in both the appeals have argued that Auto or Four Wheeler, Motor Cycle said to have been used by accused for kidnapping PW-1 victim have not been seized in this case. The non seizer of the vehicle used by accused for kidnapping PW-1 victim cannot be fatal to the case of prosecution which
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 would be sufficient enough to discard the oral testimony of PW-1 victim about accused No.1 having committed penetrative sexual assault on PW-1 victim. The above referred evidence placed on record by the prosecution would go to show that PW-1 victim was kidnapped for the first time by the accused Nos.1 and 2 from Bannur village and on the second occasion from Saunshi village. PW-1 victim was subjected to penetrative sexual assault in spite of her resistance against her will.
31. Accused No.2 has taken specific defence of plea of alibi. It is his contention that he was working in Goa as on 24.12.2012 and not present with accused No.1 as alleged by PW-1 victim. In support of such contention relied on the evidence of DW-2-Shobha and got examined DW-3, who is his uncle. DW-2 and DW-3 during the course of their evidence have deposed about accused No.2 was working under DW-2-Shobha and wages are paid to accused No.2. DW-2 has produced Exs.D4, D5 and D6. The witness has also produced Exs. C1 and C2 muster roll and wage register respectively. DWs. 2 and 3 have been
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 subjected to cross-examination by the learned Spl. Public Prosecutor. The evidence of both the witnesses DWs. 2 and 3 has been meticulously examined by the trial Court and in view of the discrepancies found in Exs. D4 and D5 and the over writing, further muster roll before August 2012 was kept blank and two separate registers are maintained for two separate work by the same Company, the trial Court rightly disbelieved the evidence of DWs. 2 and 3 as against the consistent evidence of PW-1 victim about the presence of accused No.2 on both the occasions of kidnapping PW-1 victim from Bannur and Saunshi. The said evidence is also further corroborated by evidence of PW-2-Mahadevappa, who is the eye witness to the kidnapping incident that took place in Saunshi village while himself and PW-1 victim were proceeding to their land to collect the fire wood.
32. The trial Court has rightly acquitted the accused No.2 for the reasons recorded in Para No.65 of it's judgment for the offence punishable under Section 366A of IPC. On the basis of evidence placed on record, the trial
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 Court has convicted the accused No.1 for the offences punishable under Sections 366, 506 and 376 of IPC and Section 6 of POCSO Act. Accused No.1 and 2 both were convicted for the offence under Section 363 R/w Section 34 of IPC. Accused No.2 is held to be guilty for the offence under Section 17 of POCSO Act. The trial Court has rejected the contention of counsel for accused No.2 that if any abetment is caused, then it is only with reference to offence under Section 363 R/w Section 34 of IPC. On going through Section 17 of POCSO Act, it would go to show that whoever abets any offence under this Act, if the act abetted is committed in consequence of abetment, shall be punished with imprisonment provided for that offence. Section 17 of POCSO Act is only enabling provision and not independent penal action. If accused No.2 is to be convicted for the offence under Section 17 of POCSO Act, then the act complained must be committed under the provisions of POCSO Act. Looking to the evidence placed on record by the prosecution, it is evident that the role of this accused No.2 along with accused No.1
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 is related for the offence under Section 363 of IPC alone. PW-1 victim herself has categorically admitted in her evidence that accused No.2 has not done anything to her. PW-1 victim evidence is silent about accused No.2 having any knowledge or has instigated accused No.1 to commit penetrative sexual assault on PW-1 victim while they were in Aihole. According to the evidence of PW-1 victim also, accused No.2 after leaving PW-1 victim and accused No.1 at Kodigepalya in Bengaluru left for his work to Goa. Therefore, there is no question of accused No.2 abetting accused No.1 for committing sexual assault on her. There is also no evidence on record in the form of evidence of PW-1 victim that accused No.2 at any point of time again came to Kodigepalya village in Bengaluru and at his instance accused No.1 committed penetrative sexual assault on her. Therefore, under these circumstances, the conviction of accused No.2 for the offence under Section 6 R/w Section 17 of POCSO Act cannot be legally sustained.
33. The trial Court has rightly convicted accused No.1 based on the evidence on record for the offences
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CRL.A No.100011/2014C/W CRL.A.No.100020/2014 punishable under Section 363 R/w Section 34 of IPC, 366, 376, 506 of IPC and Section 6 of POCSO Act and also in convicted accused No.2 for the offence under Section 363 R/w Section 34 of IPC. On the question of imposition of sentence, the trial Court on rightly appreciating the facts and circumstances of the case imposed appropriate punishment for the proved offences against accused Nos.1 and 2 for the offence under Section 363 R/w. Section 34 of IPC and the same does not call for any interference by this Court. Consequently, proceed to pass the following :
ORDER Appeal filed by appellant-accused No.1 in Crl.A No.100020/2014 is hereby dismissed as devoid of merits.
Appeal filed by appellant-accused No.2 in Crl.A No.100011/2014 is hereby partly allowed.
The judgment of conviction passed by trial Court against accused No.2 for the offence under Section 6 R/w Section 17 of POCSO Act is hereby set aside.
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The judgment of trial Court for the offences against accused No.2 for the offence under Section 363 R/w Section 34 of IPC stands confirmed.
The Registry is directed to transmit the records of trial Court with copy of this judgment.
Sd/-
JUDGE AMA