Karnataka High Court
Peerappa Harijan S/O. Sangappa vs The State Of Karnataka on 21 June, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
CRIMINAL APPEAL NO.100194/2014
BETWEEN:
PEERAPPA HARIJAN S/O SANGAPPA,
AGE: 23 YEARS, OCC.: DRIVER,
R/O SANGADEVARAKOPPA VILLAGE,
TQ: KALAGHATAGI, DISTRICT: DHARWAD.
- APPELLANT
(BY SRI. D.M. MANJUNATH, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD, THROUGH
KASABAPETH P.S. HUBLI.
- RESPONDENT
(BY SRI. V.M. BANAKAR, S.P.P.)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF CR.P.C. SEEKING TO SET ASIDE
THE JUDGMENT AND CONVICTION OF DISTRICT AND
SESSIONS JUDGE, AT DHARWAD IN SPL. SC. 05/2013
DATED 09.10.2013 & ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, B.M. SHYAM PRASAD J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the accused impugning the judgment dated 09.10.2013 and order of sentence dated 10.10.2013 in Special Case No. 5/2013 on the file of the District and Sessions Judge at Dharwad, and the appellant (Hereinafter referred to as the "accused") is convicted for the offences punishable under Sections 363, 366, 344, 376 (2)(h) & (m) of Indian Penal Code (for short 'IPC') and Sec. 6 of the Protection of Children from Sexual Offences Act,2012 (for short 'POCSO Act'). The accused is sentenced to undergo imprisonment for life for the offence punishable under Sec. 6 of the POCSO Act (no separate sentence is awarded for offence 3 punishable under Section 376 (2)(h) and (m) of IPC because of sentence under Section 6 of the POCSO Act) and terms of simple imprisonment of one year each for offences punishable under Sections 363 and 344 of IPC and five years for offence punishable under Section 366 of IPC. The Sessions Court has also imposed fine and default imprisonment for each of these offences and also directed payment of Rs.10,000/- to the victim under Section 357(1) of Criminal Procedure Code (for short "Cr.P.C.") in addition to awarding Rs.50,000/- as compensation under Section 357A of Cr.P.C., and a fine of Rs.10,000/- is imposed as compensation payable to the victim-P.W.1.
2. The prosecution's case is that the prosecutrix, a girl who had finished her First P.U.C, was visiting her grandmother and when she stepped out to purchase medicines in the evening on 13.03.2013, the accused, who was admittedly acquainted with the prosecutrix, 4 accosted her and compelled her to travel with him in an auto rickshaw until Hubballi Bus stand and later by bus to Gadag and from there on a two wheeler to where she was confined against her wishes in a house for a period of 15 days during which time the accused forced himself on the prosecutrix after many days on couple of occasions. The prosecution's case is also that the prosecutrix's father, upon being informed by the prosecutrix's grandmother about the prosecutrix not returning home even after 9.00 p.m., lodged a missing complaint with the jurisdictional Police, and when one of the Police personnel entrusted with locating the prosecutrix chanced upon the accused and the prosecutrix near a Railway bridge in Hubballi, the accused was apprehended and produced before the senior police personnel and later subjected to medical examination.
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3. After the investigation, charge sheet was filed against the accused for the offences punishable u/s 343, 363, 366, 376 (2)(h) and (m) of IPC and Sec. 6 of the POCSO Act; and upon a charge being framed for the said offences and being read over, the accused pleaded not guilty. The prosecution commenced its evidence and examined in all 22 witnesses, including the prosecutrix - P.W.1, her father - P.W.2, her maternal aunt -P.W.6, doctor who examined the prosecutrix - P.W.14, an Assistant Professor in Forensic Medicine with KIMS - P.W.15 and the police personnel. Amongst different exhibits marked on behalf of the prosecution, the Medical Certificate, Certificate of Birth and Caste issued by the school where the prosecutrix is said to have studied 9th and 10th standard, Prosecutrix's Age Determination Certificate - Ex.P.18 and Medical Examination Reports (Ex.P.13) are marked. These witnesses have been cross-examined on behalf of the 6 accused and his statement is also recorded u/S 313 of Cr.P.C.
4. The accused's defense is that the prosecutrix was in love with him and he tried to dissuade her because they come from two different communities and neither their society nor caste/community persons would permit their relationship, however the prosecutrix persisted and she opposed the matrimonial alliance finalized by her father, allegedly for a sum of Rs.1,00,000/-, which did not materialize. The prosecutrix's father, being politically influential, filed a false complaint to implicate the accused in a false case. The accused denied that he had forced himself on the prosecutrix.
5. The Sessions Court upon appreciation of evidence placed on record has convicted the accused for the offences and imposed sentence as stated supra. The Sessions Court placing reliance on the decision of the 7 Hon'ble Supreme Court, and despite observing that the evidence available on record as regards the age of the prosecutrix is not categorical because it is stated that the prosecutrix was aged between 17 and 19, has concluded that the marginal benefit of the prosecutrix being one year younger ought to be given and has held that the prosecutrix was aged below 18 years. Insofar as the discrepancies emphasized on behalf of the accused, the Sessions Court has perfunctorily considered such discrepancies and concluded that such infirmities do not go to the core of the prosecution's case. The Sessions Court has essentially relied upon the evidence of the prosecutrix, her father and maternal uncle, and convicted the accused/appellant holding that even if the prosecutrix had consented, such consent would not be valid because she was below the age of 18 years.
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6. The learned counsel for the appellant argued in support of the appeal emphasizing the discrepancies in the evidence tendered by the prosecution's witnesses in the context of the accused's statement under Section 313 of Cr.P.C., and he laid emphasis on the evidence of the prosecutrix (P.W.1) to contend that even her evidence established that she had on her own volition joined the accused on 30.03.2013 and stayed with him and that both accused and the prosecutrix had voluntarily appeared before the Police when the accused's uncle called him over his mobile and informed him about the police making enquiries. The learned counsel also argued that because the prosecutrix was above the age of 18 years and she was capable of consenting to physical intimacy being above the age of 18 years, the accused could not have been found guilty of offence under Section 376 of IPC or any other offence under IPC, and much less under the provisions of POCSO Act.
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7. In the facts and circumstances of the case, and the grounds urged by the learned counsel for the appellant, the questions that arise for consideration in this appeal are: whether, in the facts and circumstances of the case, the Sessions Court was justified in holding that the prosecutrix was aged below '18' years and whether the Sessions Court's judgment and order on sentence even otherwise calls for any interference.
8. The conviction of the accused is fulcrumed on the finding that the prosecutrix was aged below 18 years, and if indeed it could be held that the prosecutrix was aged below 18 years, because of the provisions of Section 375 of IPC and the sixth description thereto and provisions of POCSO Act, a higher degree punishment as contemplated under the provisions of Section 42 of the POCSO Act must necessarily follow. The POCSO Act defines a 'child' as a person who is below the age of 18 years, and in view of the recent decision of the 10 Hon'ble Supreme Court1 if sexual intercourse with a girl below 18 years is established (irrespective of the consent) conviction and punishment under the provisions of the POCSO Act and IPC will have to necessarily follow.
9. The defense is that the prosecutrix was aged 18 years, that the accused did not force himself on the prosecutrix, that the prosecutrix had persuaded the accused professing her love for him and that the prosecutrix was never detained against her will; therefore, it is important to examine the prosecution's case as regards the age of the prosecutrix.
10. The Doctor's evidence as regards the age of the prosecutrix is based on the entry in Ex - P 18 -
"Proforma for Age Determination" which is an opinion based on the physical, dental and radiological examination of the prosecutrix. The prosecutrix's age is 1 EERA vs. State (NCT of Delhi) and another, (2017) 15 SCC Page 133 11 mentioned in Ex. P 18 as being 'above 17 and below 19 years' age and the same is reiterated by the doctor (PW
15) in his evidence. The doctor has referred to eruption of the third molar and such eruption would be after the age of 17 years, and his opinion about the age of the prosecutrix is also based on this. This evidence is inconclusive.
11. The next evidence is the Certificate of Age and Caste issued by the school in which the prosecutrix studied 9th and 10th standard. It is no doubt true that as held by the Hon'ble Supreme Court2, a Certificate issued by the school in which the girl studied should be relied upon to decide on the age of the victim. However, a school certificate could be accepted subject to the condition that such certificate is issued by the school which the victim first attended. This will ensure that the best evidence is placed as regards the age of the 2 Mahadeo S/o kerba Maske vs. State of Maharashtra and another (2013) 14 SCC page 637 and Ashwani Kumar Saxena vs. State of M . P. (2012) 9 SCC Page 750 12 victim. Ex.P.20 is not issued by the school in which the prosecutrix began her studies but is issued by a school which recorded the prosecutrix's age during the year 2010 as related by her and when she took admission for the 9th standard. In the facts and circumstances of the case and when the other evidence as regards the age of the prosecutrix is also inconclusive, this School Certificate (Ex. P 20) will have to be seen distinctly from a School Certificate issued by the first school. In the considered opinion of this Court, for these reasons even Ex. P 20 is inconclusive.
12. The other evidence is the evidence of the father, the maternal uncle and the prosecutrix herself. Neither the father (PW 2) nor the Prosecutrix's aunt (PW3) has spoken about the age of the prosecutrix, and no effort is made to place the age of the prosecutrix's siblings (it is admitted that she has an elder sister and a younger brother) or any other document which would 13 establish the prosecutrix's age. Therefore, the evidence is also rather inconclusive as regards the age of the prosecutrix; and only because the witnesses have said that the prosecutrix had completed her first P.U.C. Examination, it cannot be held that the prosecutrix would be aged below 18 years. Under these circumstances, it would have to be necessarily concluded that the prosecution has failed to establish the age of the prosecutrix as being below 18 years, a condition precedent to bring in culpability of the accused/appellant, without examining the question of consent, for punishment under the provisions of the POCSO Act. The Sessions Court's conclusion that the benefit of margin of one year must be given, in the facts and circumstances as brought by the evidence, is ill founded and incorrect.
13. On the charge of wrongful confinement and the appellant forcing himself on the prosecutrix or the 14 prosecutrix's consent, the best evidence could be by the prosecutrix herself; and sum of the prosecutrix's evidence is that she was compelled by the accused to accompany him and another (whom she is able to identify by name) in an auto rickshaw, without any restrictions, she traveled by an auto-rickshaw with the accused to Hubballi Bus stand, from there by bus to Gadag and from there she travels to the place where she was allegedly wrongfully restrained on the pillion of the accused who was riding his friends motorcycle. It must be noted that the distance between Dharwad and Gadag is a travel distance of about hour and a half by any estimate. The prosecutrix has also deposed that she was confined in one room accommodation in a place which had many tenements in the vicinity, that this place did not have a toilet and therefore she had to travel out of the house for about a KM to answer nature's call, that the neighbors in the adjoining tenements could be easily alerted by calls of help, and 15 importantly, that the accused could often leave her alone in this place though she says that it was under
lock.
14. As regards the prosecutrix's acquaintance with the accused, the prosecutrix states that the accused and she knew each other, and when confronted in cross examination about the greeting card which she had supposedly to write to the appellant, the prosecutrix identifies the greeting card but states that it was in the hand writing of a friend by name Vidya. If the prosecutrix and the accused were not to be acquainted and there were to be no other association between them, the prosecutrix would not have known about a greeting card sent by her friend to the accused, and this is also an important circumstance to be considered in the light of the other circumstances of the case.
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15. Even as regards the arrest of the accused, there are serious contradictions which create doubt about the prosecution case against the accused. The prosecutrix herself has stated that the accused and she appeared before the police on 28.3.2013 when the accused's uncle called the accused over telephone and informed about the complaint lodged by her father with the jurisdictional Police and the Police being on the look out for both of them. On the contrary, the Police personnel-P.W.19, has stated that he was entrusted with locating the prosecutrix and accused and he was on beat looking out for them when he saw them near the Railway Bridge near new Railway Station, Hubballi, and he apprehended the accused on 30.3.2013 and produced before the Police personnel. Further, the prosecution's case is that the accused was arrested on 30.03.2013 while the prosecutrix herself has stated that she and accused went to the Police Station on 17 28.03.2013. These, and the other circumstances discussed, are serious discrepancies going to the root of the prosecution's case.
16. The Sessions Court has not considered these very material circumstances, which when considered in its entirety and general tenor in coming to its conclusion that the prosecution had proved its case. This Court is of the considered opinion that the prosecution, which is required to prove every strand of its case so as to bring about the culpability of the accused, has failed in establishing its case that the prosecutrix was aged below 18 years and that the accused had forced himself on the prosecutrix.
17. In the aforementioned circumstances, it will have to be concluded that the prosecution has not been able to bring a case against the accused/ appellant to secure a conviction of the accused-appellant either for 18 the offence punishable under Section under Section 363, 366, 344, 376 (2) (h) & (m) of Indian Penal Code and Sec. 6 of the Protection of Children from Sexual Offences Act, and the vital ingredient of consent being predominantly borne out by the evidence on record.
18. Therefore, we proceed to pass the following operative Order:
Appeal is allowed, and consequentially, the judgment of conviction and sentence passed by the learned Prl. District & Sessions Judge, Dharwad dated 09.10.2013 in Spl. S.C. No. 5/2013 is set aside. The accused is acquitted of the charges laid against him.
Accordingly, the accused-appellant who has been in custody after the bail that was granted earlier by this Court, is cancelled vide order dated 26.02.2018 shall be released forthwith, if not required in any other case. 19
Registry is directed to forthwith communicate the operative portion of the order to the concerned jail authorities.
Sd/-
JUDGE Sd/-
JUDGE bvv*