Karnataka High Court
State Of Karnataka vs Bharamappa S/O Nagappa on 30 August, 2021
Equivalent citations: AIRONLINE 2021 KAR 2798
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.100172 OF 2014
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE POLICE SUB INSPECTOR
GANGAVATHI RURAL POLICE STATION,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD.
...APPELLANT
(BY SRI. RAMESH B CHIGARI, HCGP)
AND
BHARAMAPPA S/O NAGAPPA
AGE: 22 YEARS, OCC: AUTO COOLIE,
R/O. AGALAKERA HALIVASTI HEBBAL,
TQ: GANGAVATHI, DIST:KOPPAL
...RESPONDENT
(BY SRI. SANTOSH B MALAGOUDAR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
30.04.2014 PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
KOPPAL IN POSCO S.C.NO.6/2013 AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 30.04.2014
PASSED BY THE PRL. DIST. & SESSIONS JUDGE, KOPPAL IN
POSCO S.C.NO.6/2013 AND CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 363, 366 OF
IPC AND U/S 8 OF THE POSCO ACT, 2012.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
16.08.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State under section 378(1) and (3) of Cr.P.C., challenging the judgment of acquittal dated 30.04.2014 passed by the Principal District and Sessions Judge, Koppal in POCSO S.C.No.6/2013 and prayed for setting aside the judgment of acquittal by convicting the respondent-accused.
2. For the sake of convenience, parties herein are referred as per the original ranks occupied by them before the Trial Court.
3. The case of the prosecution is that the accused was staying in the house of his uncle, i.e. CW12 since six months by running an auto on hire basis and the said house is near the house of the complainant. That the complainant had a minor daughter aged about 15 years and accused used to follow her whenever she used to go to -3- bring water and he also used to molest her by holding her hands and touching her chin. When the victim brought it to the notice of the complainant, the complainant warned the accused in this regard on 2 to 3 occasions. In spite of the same, the accused continued his attitude. That on 13.09.2013, in Hebbal village, the victim was alone in the house and all other family members went to see Ganesh festival, then the accused came to the house of the complainant and asked the victim to join him so that they can marry each other but the victim denied. Then, the accused threatened her that if she does not accompany him, he is going to die. Then, the victim joined him and accused took her in auto bearing No.KA-37/A2260 and they went to Ayodhya cross and from there they went to Bengaluru. In the meanwhile, the complainant has lodged a complaint after coming to know that the accused took his daughter with him in auto and after getting the knowledge of the same, the accused brought the victim back from Bangalore to Hospete and on 15.09.2013, the accused was apprehended in Hospete bus stand along with victim girl. -4- The investigating officer has subjected both of them to medical examination and submitted charge sheet against the accused for the offence punishable under Sections 363, 366 of IPC and Section 8 of the POCSO Act. It is the specific allegation of the prosecution that the accused kidnapped a minor victim girl from the lawful guardianship of complainant against the consent of complainant/ guardian, inducing the victim girl to go with him under the pretext of marrying her, that too having knowledge of she being minor aged about 14 years only.
4. On the basis of submission of charge sheet, the learned Sessions Judge has taken cognizance of the offence and the presence of the accused was secured. The accusation under Section 363, 366 of IPC and Section 8 of the POCSO Act was framed against the accused and same was read over and explained to him. Accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution has examined in all 14 witnesses as PW1 to PW14 and placed reliance on 11 documents -5- marked at Ex.P1 to Ex.P11 and also one material object marked at M.O.1. After conclusion of the evidence of prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appeared against him in the case of the prosecution. The case of the accused is of total denial and he did not choose to lead any defence evidence. Having heard the arguments, the learned Sessions Judge has framed the following points for consideration.
1) DgÉÆæ ¢£ÁAPÀ 13.09.2013 gÀAzÀÄ C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á¢üvÀ¼À£ÀÄß ¥ÀĸÀ¯Á¬Ä¹ ªÀÄzÀĪÉAiÀiÁUÀĪÀ D«ÄµÀ vÉÆÃj¹ vÀ£ÉÆßA¢UÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV C¥ÀºÀgÀt ªÀiÁr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 363, 366 gÀr zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀªÉ¸ÀVzÁÝ£ÉAzÀÄ C©üAiÉÆÃd£É ¸ÀA±ÁAiÀÄwÃvÀªÁV ¹zÀÝ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?
2) F ªÉÆzÀ®Ä ¨Á¢üvÀ¼ÀÄ ¤ÃgÀÄ vÀgÀ®Ä ºÉÆÃzÁUÀ, QgÁt ¸ÁªÀiÁ£ÀÄ vÀgÀ®Ä ºÉÆÃzÁUÀ CªÀ¼À ªÉÄÊ PÉÊ, UÀ®è ªÀÄÄnÖ DgÉÆæAiÀÄÄ PÀ®A 8 ¯ÉÊAVPÀ ºÀ¯ÉèUÀ½AzÀ aPÀÌ ªÀÄPÀ̼À gÀPÀëuÉ PÁ£ÀÆ£ÀÄ 2012 gÀr zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀªÉ¸ÀVzÁÝ£ÉAzÀÄ C©üAiÉÆÃd£É ¸ÀA±ÁAiÀÄwÃvÀªÁV ¹zÀÝ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?-6-
5. Then, after appreciating the arguments and perusing the oral and documentary evidence, he has acquitted the accused from the alleged charges by extending the benefit of doubt. Being aggrieved by this judgment of acquittal, the state has preferred this appeal.
6. Heard the arguments advanced by the learned HCGP and the learned counsel for respondent-accused. The records of the Trial Court are also secured and I have perused the records in detail.
7. The learned HCGP has argued that all the material witnesses including complainant, victim girl and eyewitnesses have supported the case of the prosecution and the Trial Court has failed to appreciate the evidence. He would also contend that the medical evidence would clarify that the victim was aged about 15 to 16 years only at the time of the incident, and on the contrary the unchallenged document discloses that she was aged about 14 years, but however the learned Sessions Judge has come to a wrong conclusion that there is discrepancy in -7- the evidence and extended the benefit in favour of the accused. Though the evidence is clear regarding the age of the victim, he has failed to appreciate the evidence of PW8 and there is no material placed by the accused to show that the victim was aged more than 18 years at the time of the alleged incident and under such circumstances the observation of the learned Sessions Judge that the victim was matured and capable of understanding, holds no water. Hence, he would contend that the judgment of the Trial Court is illegal, erroneous and capricious, and as such, calls for interference. Hence, he would seek for allowing the appeal.
8. Learned counsel for respondent-accused has contended that there is no evidence to prove the offence under Section 8 of the POCSO Act as ingredients are not attracted. He would also contend that the victim had followed the accused all along and she did not raise any objections all along. He would contend that considering the age of the victim, she was capable of understanding the -8- things and hence, he would submit that the learned Sessions Judge is justified in extending the benefit of doubt to the accused. Hence, he would seek for dismissal of the appeal.
9. Having heard the arguments and perusing the records, now the following point would arise for my consideration.
"Whether the Trial Court has committed an error in acquitting the accused-respondent and the judgment suffers from infirmity and illegality so as to call for interference?"
10. This is a state appeal against the acquittal. The offences alleged are punishable under Section 363, 366 of IPC and Section 8 of the POCSO Act. The alleged date of incident is 13.09.2013 at around 8.30 p.m. and complaint came to be lodged on 14.09.2013 at 9.00 p.m. The accused and victim were apprehended on 15.09.2013 at 6.45 a.m., in Hospete bus station. The prosecution has examined in all 14 witnesses but is relying mainly on the evidence of PW1, PW3-victim girl and PW4. Further, the -9- prosecution has also relied on the evidence of PW8, who issued Ex.P2 and Ex.P6. The complainant is examined as PW1 and he is father of the victim girl. He has specifically deposed that his daughter (victim girl) is aged about 14 years and studying in higher secondary school at Dhanapur. He further deposed that the accused used to chase his daughter regularly and when it was brought to his notice by the victim, he had warned the accused. His further evidence discloses that on 13.09.2013, they had been to Ganesh festival in the night and when he returned, his daughter was not found in the house as she was left alone in the house. He has also deposed that he searched her everywhere and on the next day he enquired with PW4, who disclosed that he had seen the victim girl proceeding with accused in auto on earlier night. Hence, he claims that he lodged the complaint as per Ex.P1. His further evidence discloses that thereafter, police brought his daughter and accused and his daughter disclosed that accused took her by threatening that he is going to die if she doesn't accompany him. Though this witness was -10- cross-examined at length, nothing was elicited so as to impeach his evidence.
11. PW2 is the spot mahazar witness and he has deposed regarding drawing of spot mahazar in his presence.
12. PW3 is the victim girl and she deposed that she is studying in 9th standard in Danapur Higher secondary school and her primary education was completed in Hebbal government school. She has also deposed that the accused was residing in a nearby house and he used to drive auto of one Dyamappa. She has also deposed that the accused used to tease her, follow her and molest her asserting that he wants to marry her on the ground that he loves her. She has further deposed that she brought it to the notice of her father (complainant) and her father warned the accused twice. She has also deposed that thereafter, four months prior to she giving her evidence, night at 8.30 p.m., she was alone in house since all the family members went for Ganesh procession -11- and at that time, accused came there and asked her to accompany him so that they can run away and marry each other, but she denied it. She further deposed that then the accused threatened her that if she doesn't accompany him, he is going to die and hence, she accompanied him in auto and from there they went to Ayodhya Cross, and then Kampli and Hospete and went to Bengaluru. She further deposed that after having knowledge of lodging complaint, the accused brought her morning at 6.00 a.m. to Hospete wherein police have taken them into custody. She has also identified the auto wherein she was taken by the accused. This witness was cross examined at length but nothing was elicited. A suggestion was made to this witness that whether the fact of accused loving her was brought to the notice of her friends and others, she claimed that she had brought it to the notice of her father. Interestingly, during the course of cross-examination, a suggestion was made on behalf of the accused that the accused was warned by her father, she has admitted the said suggestion and it is the case of the prosecution that when she brought the -12- incident to the notice of her father, he has warned the accused. Further, it is elicited in the cross-examination that she has not raised any objection while she was accompanying the accused and she did not make hue and cry or galata and did not complain to the passengers, co- passengers etc.,
13. PW4 Gangappa has also deposed that on 13.09.2013 at 9.00 p.m. in the night, he was returning to Hebbal from Gangavathi and near Hebbal he has seen the accused and victim girl traveling in auto and on the next day evening when complainant enquired about whether he has seen his daughter, he disclosed that he had seen the accused and victim traveling in auto. He has also identified the auto and in the cross-examination he has specifically stated that he has seen them when the auto came from opposite direction since both the vehicles were moving slowly, and his evidence disclose that he has seen the accused and victim from a distance of 50 ft. Except formal denial, his evidence is not impeached.
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14. PW5 and PW6 have deposed regarding seizure of the auto.
15. PW7 is the owner of the auto and he has turned hostile but he never denied that the accused was staying in his house.
16. PW8-Shivamma has deposed regarding issuing of Ex.P2. In the cross examination of this witness, it is elicited that she does not have personal knowledge about the contents of Ex.P2 and a suggestion was made that Ex.P2 was recently fabricated, but she denied the said suggestion.
17. PW9 is a dentist. He deposed regarding he examining the victim.
18. PW10/Dr.Jubed Ahmed deposed that the accused is capable of participating in sexual activities.
19. PW11 has deposed regarding submitting of FIR to the Court.
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20. PW12/Dr.Sujata has deposed regarding she examining the victim, while PW13 has deposed about apprehending the accused and the victim on 15.09.2013 morning at 6.00 a.m. when they alighted from bus.
21. PW14 is the investigating officer and he deposed regarding the investigation done by him.
22. On perusal of entire evidence, it is to be noted here that the evidence of PW1, PW3 and PW4 is consistent and it discloses that the accused had took away the victim girl along with him by inducing her. Now the defence counsel has raised certain concern only about exact date of birth. Ex.P2 is an application submitted by the complainant when the victim was being admitted to school. It is dated 17.06.2005. The date of birth of the victim was declared as 01.06.1999. Ex.P6 is the certificate issued on the basis of school records and it also discloses that the date of birth of the victim as 01.06.1999.
23. The argument of the learned counsel for respondent-accused is that the dentist/PW9, who -15- examined the victim has issued Ex.P8 and he was unable to identify the age of the victim. On perusal of Ex.P8, it is evident that the medical officer has stated that the victim is aged more than 14 years but exact date cannot be estimated as the third molar teeth are missing. On the basis of this document, the age is attacked. It is to be noted here that the victim was studying in 9th standard and her date of birth was entered in 2005 itself. The date of birth was entered well prior to the alleged date of incident and there is no other material to show that the victim is aged more than 18 years. Section 361 of IPC deals with kidnap from legal guardianship, which reads as under:
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.-16-
Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.-This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
24. Hence, as per Section 361 of IPC, a girl below age of 18 years if taken away from the lawful guardianship without consent by any person, is said to have kidnapped. The penal Section is 363 of IPC.
25. It is also important to note here that there is no material evidence to show that the victim is more than 18 years. The medical evidence simply disclose that she is above 14 years but the school documents disclose that she is aged about 14 years as her date of birth disclosed as 01.06.1999. These documents came into existence on -17- undisputed point of time and under Section 35 of the Evidence Act, they have got relevancy. Unless the contrary document is produced by the accused, this material evidence cannot be ignored. Interestingly, the accused has nowhere specifically denied the age of the victim. During the cross-examination, no specific denial is forthcoming on the part of the accused. A simple assertion is being made but no contrary documents are produced by the accused. Even there is no suggestion made to complainant that his daughter is aged more than 18 years. This material suggestion is also missing. The learned Sessions Judge ignored all these aspects, especially Ex.P2 and Ex.P6 coupled with non-denial of the age and has presumed that the victim is aged about 18 years and voluntarily went with accused. This observation of the learned Sessions Judge is unfounded. The evidence on record clearly establishes that victim was a minor girl. The documents support this aspect. When victim was minor, her consent does not have relevancy and the specific allegation is that the accused under the pretext of marriage by inducing the victim, who -18- was minor, took her away from the custody of lawful guardian. Hence, the ingredients of Section 361 are directly applicable to the case in hand.
26. The prosecution has also prosecuted the accused for the offence punishable under Section 366 of IPC. But the provisions of Section 366 of IPC cannot be made applicable as there is no forceful act to take away the victim, but she was induced. However, she was minor and as such, the provisions of Section 366 of IPC cannot be made applicable and the provisions of Section 363 are applicable to the case in hand.
27. Further, the evidence of the prosecution itself establishes that accused has not at all committed any sexual assault on the victim girl. The medical evidence of PW12 further discloses that there were no marks of any injury on her body and hymen was intact. Hence, there was no sexual assault. The prosecution has prosecuted the accused for the offence punishable under Section 8 of the POCSO Act. Section 8 of the POCSO Act deals with -19- reference to sexual assault and sexual assault itself is depending on section 7 of the Act, which reads as under:
"7. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
28. In the instant case, no such case is made out regarding sexual assault and as such, question of punishing the accused under Section 8 of the Act, does not arise at all.
29. Mere following a minor girl does not fall under the definition of Section 7 of the Act and it also falls short of sexual harassment as defined under Section 11 of the Act. Under such circumstances, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 8 of the POCSO Act, as victim was not subjected to any sexual -20- assault by the accused. Further, the intention of the accused as can be evidenced that he never took the victim with sexual intention and he did not touch her private parts at any point of time by taking advantage of her position, even though he induced her away. Hence, it is evident that the first intention of the accused was to marry her but since she was minor, he did commit serious blunder in this regard. Under such circumstances, the ingredients of offence punishable under section 8 of the POCSO Act are not attracted. Further, the offence under Section 366 of IPC is also not attracted. However, the evidence on record clearly establishes that the offence under Section 363 of IPC is attracted. The learned Sessions Judge is justified in acquitting the accused for the offences punishable under Sections 366 of IPC and Section 8 of the POCSO Act, though he has not given any convincing reasons in this regard. However, the reasons offered by him in acquitting the accused for the offence punishable under Section 363 of IPC are not worthy of appreciation. The learned Sessions Judge committed an -21- error in acquitting the accused for the offence punishable under Section 363 of IPC. The judgment in this regard is erroneous and illegal and suffers from infirmity. Hence, the accused needs to be convicted for the offence punishable under Section 363 of IPC. Accordingly, I answer the point under consideration partly in affirmative and accused is required to be convicted for the offence punishable under Section 363 of IPC. The offence under Section 363 of IPC is punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine and it is necessary to hear on sentence. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part.
The judgment of acquittal dated 30.04.2014 passed by the Principal District and Sessions Judge, Koppal in POCSO S.C.No.6/2013 so far as it relates to offences under Section 366 of IPC and under section 8 of the POCSO Act is confirmed.-22-
However, the judgment of acquittal dated 30.04.2014 passed by the Principal District and Sessions Judge, Koppal in POCSO S.C.No.6/2013 insofar as it relates to Section 363 of IPC is set aside and the accused is found guilty of the offence punishable under Section 363 of IPC and accordingly, he is convicted for the said offence.
To hear on sentence.
(RAJENDRA BADAMIKAR) JUDGE yan -23- ORDER ON SENTENCE Heard the learned HCGP and the leaned counsel appearing for respondent-accused on sentence.
Learned counsel for respondent-accused submits that the period of imprisonment undergone by the accused may be set off as against the proposed sentence.
Learned HCGP would submit that considering the gravity of the offence, the minimum sentence of three years of imprisonment with fine may be imposed.
The offence under Section 363 of IPC is punishable with imprisonment for a term which may extend to seven years and also fine. Hence, sentence of imprisonment along with fine is mandatory and there is no minimum sentence or fine prescribed for offence under Section 363 of IPC. However, maximum sentence is seven years. The accused had enticed the minor victim girl and took away her from the legal guardianship of the complainant and thereby committed offence under Section 363 of IPC. -24- However, the evidence does establish that he had not committed any sexual assault on victim girl and immediately brought her back to the place. Looking to these facts and circumstances, in my considered opinion, the period of custody undergone by the accused can be set off as against the proposed sentence of imprisonment. However, as regards fine is concerned, in my considered opinion, the accused/respondent herein can be imposed fine of Rs.10,000/-. Hence, I proceed to pass the following:
ORDER The accused is convicted for the offence punishable under Section 363 of IPC and sentenced for imprisonment for a period of detention in judicial custody, which he has already undergone and also to pay a fine of Rs.10,000/- for the offence punishable under Section 363 of IPC and in default to pay the said fine amount, he shall undergo simple imprisonment for a period of three months.-25-
The Trial Court shall secure the accused and collect the fine.
Sd/-
JUDGE yan