Karnataka High Court
Shivaling S/O Sharnappa Yarbage vs The State Of Karnataka Through on 18 January, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18 TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.200057/2015
BETWEEN
1. SHIVLING S/O SHARNAPPA YARBAGE
AGE: 22 YEARS.
2. SIDDALING S/ SHARNAPPA YARBAGE
AGE: 26 YEARS, BOTH OCC: COOLI,
BOTH R/O : MAVINAHALLI, TQ : BHALKI,
DIST : BIDAR.
...APPELLANTS
(BY SRI SANJAY A. PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA THROUGH
THE POLICE, KHAATAK CHINCHOLI
POLICE STATION, DIST : BIDAR
REPRESENTED BY ADDL.
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI.
...RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE)
2
THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION DATED 26.05.2015 PASSED BY THE PRL.
DIST & SESSIONS JUDGE AT BIDAR (HOLDING
CONCURRENT CHARGE OF THE COURT OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BIDAR AND SPECIAL
JUDGE (POCSO) BIDAR) IN SPL. CASE NOL.33/2014,
THEREBY CONVICTING THE APPELLANTS FOR THE
OFFENCES P/U/SS. 366/511/R/W SEC. 34 OF IPC AND
R/W SEC. 18 OF POCSO ACT, 2012 AND FURTHER
CONVICTING THE APPELLANTS FOR THE OFFENCES P/U/S
354-B R/W SEC. 34 OF IPC AND FURTHER CONVICTING
THE APPELLANT FOR THE OFFENCES P/U/S. 8 OF POCSO
ACT, AND R/W SEC. 34 OF IPC AND FURTHER APPELLANTS
ARE CONVICTED FOR THE OFFENCES P/U/S. 12 OF POCSO
ACT, R/W SEC. 34 OF IPC AND FURTHER APPELLANTS ARE
CONVICTED FOR THE OFFENCES P/U/S.17 OF POCSO ACT,
AND R/W 34 OF IPC AND FURTHER ACQUIT THE
APPELLANTS OF ALL CHARGES AND ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is by the accused persons, who suffered an order of conviction in Special Case (POCSO) No.33/2014 on the file of Special Judge, Bidar by judgment dated 26.05.2018 and sentenced as under:
"i. Accused no.1 Shivling S/o Sharnappa Yarbage, aged22 years, occupation: coolie, and accused no.2 Siddaling S/o Sharnappa 3 Yarbage, aged 26 years,occupation: coolie, both residents of Mavinahalli, tq.Bhalki, dist. Bidar, shall undergo rigorous imprisonment for a period of 5 years and also pay fine amount of Rs.2,000/- each for the offence punishable under Section 366/511 r/w section 34 of IPC and r/w section 18 of POCSO Act, 2012.
ii. Further, the above accused no.1 and 2 shall undergo rigorous imprisonment for a period of 5 years and also shall pay fine amount of Rs.2000 /- each for the offence punishable under section 354-B r/w section34 of IPC. iii. Further, the above accused no.1 and 2 shall undergo rigorous imprisonment for a period of 5 years and also shall pay fine amount of Rs.2000/- each for the offence punishable under section 8 of the POCSO Act, 2012 r/w section 34 of IPC.
iv. Further, the above accused no.1 and 2 shall undergo rigorous imprisonment for a period of 3 years and also shall pay fine amount of Rs.2000/- each for the offence punishable 4 under section 12 of the POCSO Act, 2012 r/w section 34 of IPC.
v. Further, the above accused no.1 and 2 shall undergo rigorous imprisonment for a period of 3 years and also shall pay fine amount of Rs.2000/- each for the offence punishable under section 17 of the POCSO Act, 2012 r/w section 34 of IPC.
vi. In default to pay fine amount, the accused no.1 and 2shall further undergo simple imprisonment for a period of one year. vii. All the substantive sentences shall run concurrently."
2. The brief facts of the case are as under:
A complaint came to be lodged by the victim girl on 06.06.2013 contending that on 05.06.2013, at about 6.30 p.m. the accused persons tried to kidnap her and therefore sought for action. It is further contended that the victim girl has studied up to 10th standard and thereafter, she discontinued her education and working as a helper in flour 5 mill and she is aged about 17 years as on the date of the complaint. It is further contended that herself, her parents and her uncles are all residing in one and the same home and nearby house. Her house is situated near the flour mill. About one and half months earlier to the incident, when she was alone in the flour mill, accused No.1 came near the flour mill and made an offer to marry her. She refused the offer and despite the same, accused No.1 was following her and renewed the offer. She has informed the same to her father. Her father and one Basavarajesh on 31.05.2013 visited the house of accused No.1 and informed father of accused No.1 that accused No.1 has indulged in harassing the victim girl with an offer to marry her and the victim girl is not interested and told him to advise him properly. Despite the same, accused No.1 visited the flour mill again and renewed the offer.
Thereafter, the issue was taken to elders in the community by name Shivaraj on 04.06.2013 and father of accused No.1 was summoned and he has been advised properly. When the matter stood thus, on 05.06.2013, when the 6 victim girl had been to fetch the water from nearby the bore well around 6.30 p.m., accused No.1 came there and restrained the free movement of the victim girl and pulled her hand and when she refused the act of accused No.1, he told that he would not leave her and he would elope her and forced her to go with him by pulling her hand again. Accused No.2, who was present in the spot instigated accused No.1 to kidnap the victim girl. In order to rescue herself from the clutches of accused No.1, the victim girl raised alarm by raising hue and cry. On hearing the hue and cry made by the victim girl, the mother of the victim girl came there and she addressed accused No.1 that why he is pulling her hand and leave her. At that juncture, accused No.1 pushed the victim girl down and also his mother and she sustained injury on her knee region and both the accused persons ran away from the spot after Mahananda and Surekha arrived on the scene. The incident was intimated to the father and uncle of the victim girl and after they came, they visited Bhalki village for 7 treatment and then next day morning, they lodged the complaint.
3. The police after registering the case, investigated the matter and laid a charge sheet against the accused persons for the offences punishable under Sections 366, 511, 354-B read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and Sections 7, 11, 12, 16, 17 and 18 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').
4. The learned Special Judge on receipt of the charge sheet, took cognizance of the aforesaid offences and secured the presence of the accused persons. Thereafter, charges were framed. The accused pleaded not guilty and therefore, trial was held.
5. In order to prove the case of the prosecution, ten witnesses have been examined as PWs.1 to 10 and the prosecution relied on six documentary evidence, which were exhibited and marked as Exs.P1 to P6. 8
6. On conclusion of the prosecution evidence, the accused statement as contemplated under Section 313 of Cr.P.C. came to be recorded, wherein, the accused persons denied all the incriminatory materials that were put to them. However, the accused persons did not place their version on record by examining themselves or filing any written submission as is contemplated under Section 313(5) of Cr.P.C.
7. Thereafter, the learned Trial Judge heard the parties in detail and after considering the oral and documentary evidence on record, passed an order of conviction convicting the accused persons for the alleged offences as referred to supra.
8. Being aggrieved by the same, accused persons have preferred this appeal. During the pendency of this appeal, accused No.2/appellant No.2 died and therefore, the proceedings against accused No.2/appellant No.2 stood abated subject to the condition that the dependents of accused No.2 would not claim refund of the fine amount 9 and by following the dictum of the Hon'ble Apex Court in the case of Ramesan (Dead) Through Legal Representative Girija A. vs. State of Kerala reported in (2020) 3 SCC 45. Thereafter, the appeal against accused No.1/appellant No.1 is continued.
9. In the appeal, following grounds have been raised.
o The impugned judgment of conviction passed by the Trial Court is contrary to law and facts of the case.
o The Trail Court has not properly appreicated
the evidence before it and has thus
erroneousely convicted the appellants/accused for the alleged offences.
o The Trial court has totally ignored the fact that there is enormous delay in lodging the complaint, the complainant has not explained the reason for the delay and that being so the very genesis of the complaint is doubtful. And thus the Trial court has wrongly convicted the appellants.
10o The Trial Court ought to have taken into account that, the victim girl is aged more than 17 years as on the date of alleged incident and also that the evidence before the Court are full of contradictions and omissions of the prosecution and hence the entire case is created and concocted one. And thus the Trial Court has wrongly convicted the appellants. o The Trial Court has filed to appreciate the fact that the allegations in so far as accused No.2 is a Omni bus allegation and there are contradiction in the evidence of PW-8 and PW- 9 which effects to credibility of the prosecution case. And thus the Trial court has wrongly convicted the appellants. And thus the Trial court has wrongly convicted the appellants. o The Trial Court has wrongly convicted the appellants basing on the evidence of PW-1, 3 and 4 but on the contrary the evidence of all the witnesses are not trust worthy, and more so they do not speak about the overact of accused No.2 except saying he was instigating accused No.1. and thus the Trial Court has wrongly convicted the appellants.
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o It is submitted that, viewed at any angel the impugned judgment of conviction suffers from serious infirmities and question of law and misconception in appreciating evidence of prosecution witnesses.
o It is submitted by the appellants that this Hon'ble Court be pleased to permit his counsel to urge other some more grounds at the time of argument.
o It is submitted that no other appeal is pending or filed by the appellants before any court of law for the same cause of action except the present appeal.
10. Reiterating the above grounds, the learned counsel for the appellant vehemently contended that a trivial incident has been blown out of proportion by the prosecution and age of the victim girl has not been properly proved by the prosecution and therefore, provisions of the POCSO Act have not been proved by the prosecution by placing cogent and convincing evidence on record. He also pointed out that even assuming that the 12 case of the prosecution is to be accepted, no offence has been made out by the prosecution for which the conviction has been recorded by the trial Judge and sought for allowing of the appeal.
11. Per contra, the learned High Court Government Pleader supports the impugned judgment. He pointed out that the material evidence on record especially the wound certificate at Ex.P4 makes it very clear that the victim girl is aged about 17 years. Further, in the cross examination of PW.1, there is no challenge to the age of the victim girl and thus, prayed for dismissal of the appeal. He also pointed out that there is no previous ill-will nurtured by the complainant party to falsely implicate the accused persons and the victim girl has tolerated the harassment of accused No.1 on earlier occasions in order to maintain her dignity in the society and when the harassment continued, ultimately complaint came to be lodged and therefore, sought for dismissal of the appeal.
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12. In view of the rival contentions, following points would arise for consideration:
1. Whether the prosecution has successfully established the offences alleged against the accused/appellants beyond all reasonable doubt?
2. Whether the impugned judgment is suffering from legal infirmity, perversity and thus calls for interference?
3. If so, what is the appropriate sentence to be passed?
4. What order?
13. In the case on hand, acquaintance of complainant/victim girl and the accused persons is not in dispute. The victim girl is aged about 17 years. In the entire cross examination of the victim girl, there is no challenge made to the age of the victim girl. Therefore, the victim girl is to be considered as a child as per the definition of the POCSO Act and therefore, invoking of provision of the POCSO Act by the prosecution is justified. 14
14. The victim girl is examined as PW.1 before the trial Court. She has deposed before the Court in line with the complaint averments and has narrated the incident with graphic details. Detailed cross examination of the victim girl did not yield any result for the accused to hold that the victim girl deposing falsely against the accused persons and there is a false implication of the accused persons in the case.
15. PW.2 is the panch witness and he has supported the case of the prosecution having participated in spot mahazar - Ex.P2.
16. PW.3 is the mother of the victim girl. She has deposed in line with the examination-in-chief of PW.1 and she is also injured in the incident. Ex.P4 is the wound certificate pertaining to the mother of the victim girl, which shows that on the day of the incident because of the push made by the accused, she also sustained simple injuries. In her cross examination also, there is no material elicited by the defence so as to disbelieve the version of PW.3. 15
17. Smt.Surekhas is the neighbour of PW.3, who arrived at the scene after hearing the hue and cry raised by the victim girl and her mother and she pacified the incident. She has also supported the case of the prosecution. In her cross examination also, no useful material is elicited by the defence so as to disbelieve her version.
18. Dr.Kallappa examined the victim girl and her mother and issued Exs.P3 and P4. His evidence is formal in nature. In his cross examination also, except suggesting that the injuries noted by him could be caused otherwise than by a push is accepted by the witness. No other useful material is elicited.
19. One Jayadeep is examined as PW.6. He is the teacher, who has given the school certificate as per Ex.P5. In his cross examination also, no useful material is elicited.
20. Father of the victim girl is PW.7. He has deposed about the earlier incident and incident that 16 occurred on 05.06.2013. In his cross examination also, no useful material is elicited.
21. One Shivaraj is examined as PW.8. He deposed that he has advised the accused No.1 and his father about the incident that has been complained by the victim girl and her father on earlier occasions. In his cross examination also, no useful material is elicited so as to disbelieve his version.
22. One Basavaraj is the Police Sub-Inspector , who registered the case and Gundurao is the further Investigation Officer. They have supported the case of the prosecution.
23. On re-assessment of the above evidence on record, the following facts would emerge:
x The victim girl is resident of Mavinhalli village, Bhalki taluka and working as helper in flour mill. x The victim girl is a school drop out and was indulged in flour mill work.17
x The accused persons were acquainted with the victim girl.
x Accused No.1/appellant No.1 had made an offer to the victim girl to marry him, which was refused by her. But, accused No.1 repeatedly renewed the offer despite the advise made by the panchayatdars and the father of accused No.1.
24. The incident that occurred on 05.06.2013 is deposed by the victim girl with graphic details. On hearing the hue and cry raised by the victim girl, mother of the victim girl (PW.3) arrived on the scene and told accused No.1 to leave her daughter who was holding her hand. At that juncture, accused No.1 pushed the victim girl as well as her mother, whereby, they fell down and sustained simple injuries as is mentioned in Exs.P3 and P4. On hearing the hue and cry, Smt. Surekha and Smt.Mahananda arrived on the scene and on seeing them, the accused persons ran away from the spot. Allegation against the accused No.2 from the complaint averments 18 and as per the charge sheet materials is that he actively supported the actions of accused No.1. Since accused No.2 is dead and appeal is abated as against him, the further overt acts of accused No.2 is unnecessary to be discussed in this appeal further.
25. Fact remains that there is no previous ill-will, enmity or animosity between accused No.1/appellant No.1 and the complainant party. Under such circumstances, pledging her dignity and vanity, why victim girl would falsely implicate the accused in a matter of this nature is a question that remains unanswered. Further, in a matter of this nature, the oral testimony of the victim girl needs to be accepted as sacrosanct as is held in catena of judgments, if it inspires the confidence of the Court. If an unnatural events are deposed by the victim girl, which raises some suspicion about the conduct of the victim girl, the Court has to look for corroborations. In the case on hand, no such material is elicited. Further, since there is no challenge as to the age of the victim girl and her age is 19 mentioned in Exs.P3 and P5 as 17 years, this Court is of the considered opinion that version of PW.1 has been rightly appreciated by the trial Judge by holding that accused No.1/appellant No.1 has pulled the hands of the victim girl on the day of incident in furtherance of his intention to marry her. It is found from the records that repeatedly victim girl has refused the offer made by appellant No.1 to marry her. Under such circumstances, repeatedly following the victim girl wherever she has moved and harassing her to marry her, would be an action that would be punishable under Section 354-D of IPC and Section 18 of the POCSO Act.
26. Accordingly, this Court is of the considered opinion that the action attributable to appellant No.1 could be traced one under Section 18 of the POCSO Act and Section 354-D of IPC. Further, there is no question of kidnapping, the trial Court ought not to have convicted the appellant No.1 for the offence punishable under Sections 366 and 511 of IPC as he was only trying to pull her 20 hands. In other words, ingredients to attract the offences under Sections 366 and 511 of IPC are not available and therefore, to that extent, the finding recorded by the trial Court needs to be interfered. Hence, point Nos.1 and 2 are answered partly in the affirmative.
27. This Court having scaled down the offence punishable to appellant No.1 from what he has been convicted and his action is now liable to be punished only under Section 18 of the POCSO Act and Section 354-D of IPC, the sentence ordered by the trial Court also needs to be interfered and if accused No.1/appellant No.1 is convicted for the offence punishable under Section 18 of the POCSO Act and ordered to undergo simple imprisonment for a period of three years and fine already imposed is maintained and also for the offence under Section 354-D of IPC, the ends of justice would be met. Accordingly, point Nos.3 and 4 are answered and pass the following:
ORDER The appeal is allowed in part.21
The conviction and sentence ordered by the trial Court in Special Case No.33/2014 is modified. The accused No.1/appellant No.1 is convicted for the offence punishable under Section 18 of the POCSO Act and under Section 354-D of IPC and ordered to undergo simple imprisonment for a period of three years and to pay fine of Rs.20,000/-. Both the sentences shall run concurrently.
The appellant No.1 is entitled for the benefit of set off under Section 428 of Cr.P.C.
The appellant No.1 is granted time till 15.02.2022 to surrender before the trial Court for serving the remaining part of the sentence.
Office is directed to sent the trial Court records along with a copy of this judgment forthwith.
Ordered accordingly.
Sd/-
JUDGE Srt