Karnataka High Court
Sri Ananda Poojari vs State By Chamarajpet Police on 12 July, 2018
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.1179 OF 2016
BETWEEN:
Sri. Ananda Poojari
S/o. Krishna Poojari,
Aged about 40 years,
R/at No.1113, 15th Main,
Onake Obavva Road,
Weavers Colony, Srinagara,
Bangalore-560050. ...Appellant
(By Sri. Chandrahasa Rai, B. Advocate)
AND:
State by Chamarajpet Police,
Represented by State Public Prosecutor,
High Court of Karnataka,
High Court Building,
Bangalore-560001. ...Respondent
(By Sri. S. Vishwamurthy, HCGP)
This Crl.A. is filed under Section 374(2) of Cr.P.C
praying to set aside the judgment/order of conviction
and sentence dated:31.05.2016 passed by the LIII Addl.
City Civil and S.J. at Bengaluru City in Spl. Case
No.188/2015 - Convicting the appellant/accused for
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the offence punishable under Section 9(L)(M)R/w Sec.10
of POCSO Act, 2012. The appellant/accused is
sentenced to undergo R.I. for 5 years and pay fine of
Rs.50,000/- in default of pay fine, he shall undergo R.I.
for one fourth of the period prescribed for the
substantive sentence for the offence punishable under
Section 9(L)(M) R/w Section 10 of POCSO Act, 2012
and etc.,
This appeal coming on for Hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and sentence passed by the LIII Additional City Civil and Sessions Judge at Bangalore in Spl.C.No.188/2015 dated 31.05.2016 by holding conviction against the accused under Section 9(L)(M) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012 and the accused shall undergo imprisonment for a period of five years and sentenced to pay a fine of Rs.50,000/-. The amount shall be payable as a compensation to PW2.
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2. The factual matrix of the appeal are as under:
On 24.12.2014, at about 5.30 pm., wherein CWs.1 and 3 being the parents of the victim CW2 - Disha had been to attend their work and their daughter was alone in the house. Thus, the accused entered into the house of the victim with a pretext of asking newspaper and also made attempt to kiss her, as a result of that he committed sexual abuse on the victim being a minor. When CW2 victim was screamed due to the act of the accused and at that time PWs.4 and 5 had come to the place of crime. By that time accused who was given an apple to her and pleaded apology, but the victim threw that and asked him to got out from the house. In pursuance of the said act, PW1 filed a complaint against the accused by recording the FIR as per Ex.P1 subsequently, case was taken up by the Investigating Officer and laid charge sheet against the accused. Trial 4 Court framed charge against the accused, but he did not plead guilty.
3. In order to establish the guilt against the accused, prosecution in all examined PWs.1 to 9 and several material documents have got marked as Exs.P1 to P14. Subsequently, recorded the incriminating statement as per Section 313 of Cr.P.C and accused has denied the truth of the evidence adduced by the prosecution. Subsequently, accused did not come forward to adduce any evidence.
4. The trial Court heard the arguments advanced by the prosecution and the defence counsel. On appreciation of the evidence putforth by the prosecution, the trial Court has held conviction against the accused under Section 9 (L) (M) r/w Section 10 of the POCSO Act, it is the said judgment which is challenged in this appeal.
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5. Heard the learned counsel for the appellant and learned High Court Government Pleader for the State.
6. Learned counsel taken me through the evidence of PW1 - Madhusudan being the father of the victim who has filed the complaint as per Ex.P1. He narrated the incident said to be committed by the accused to his daughter as per the narration made to him by his daughter PW2 who is said to be the victim; that on 22.12.2014 at about 5.30 pm the accused came to the house of the victim on the pretext of taking newspaper and accused has pressed her breast and made attempt to kiss her. PW3 being the mother of the victim, also got information through her daughter being PW2 as to how the incident has committed by the accused on 22.12.2014 at about 5.30 pm., The trial Court has given credentiality to the evidence of PWs.1 to 3 coupled with the evidence of PW8 who laid the charge 6 sheet against the accused by conducting the spot mahazer in the presence of PWs.1 and 3.
7. PW1 - Madhusudan said to be the father of the victim has stated in his evidence that his daughter PW2 is studying in 6th standard and both his wife PW3 and his daughter PW2 have seen the accused. In the month of December 2014, himself and his wife had been for attending their work and he returned home at about 8.00 pm., and his wife returned to the house around 6.30 pm only. PW2 go to school at 9.00 am and return to home at 5.30 pm., Same has not been narrated in his complaint at Ex.P1. In the cross examination he has specifically stated that he is having the habit of consuming alcohol but he has denied that the accused being a neighbour previously had some altercation and that has given rise to give a complaint against the accused. But PW1 Madhusudhan said to be the father of the victim and PW3 being the mother did not give any 7 consent for her daughter to undergo medical test relating to the sexual abuse made by the accused on her. But, when the victim has not been undergoing any medical test for having suffered in the hands of the accused, that itself is contrary to the averments made in the complaint at Ex.P1.
8. PW2 stated in her evidence that at about 11 pm., in the night on 22.12.2014 when the accused has returned to the house, her father has assaulted on his person. But, PW2 who has heard the screaming sound due to the assault on the person of the accused, but she did not saw the assault made by PW1 on the accused and the same has been reflected in her evidence. She has stated in her evidence that incident has occurred on 22.12.2014, but even prior to that incident, accused made attempts to give kiss and pressed her chest but no complaint has been filed by her parents. She has specifically stated in her evidence that even though the 8 accused said to be doing the said act on her, by fondering her as well as made attempt to kiss, she did not disclose the said act made by the accused to her parents. While she was screaming Sahana and Sujay came but she did not disclose the said fact to them. This aspect is contrary to the evidence of PWs.4, 5 and 6 as per the version of their statements as per Exs.P3, 4 and 5 said to be recorded by PW8 who is the Investigating Officer who has laid charge sheet against the accused.
9. PWs.4, 5 and 6 said to be examined by the prosecution in order to prove the guilt against the accused but they did not support the case of the prosecution to any extent.
10. These are all the evidences of the prosecution which appears to be controverted to each other. The same requires to be re-appreciated by the trial Court. Therefore, this appeal requires re- 9 appreciation of evidence on record. Trial Court has misread the evidence erroneously and came to the conclusion that the prosecution has proved the guilt against the accused under Section 9 Clause L and M r/w Section 10 of the POCSO Act. Though the prosecution did not placed cogent, consistent and acceptable evidence to probabalise that the accused has committed the sexual abuse on PW2 said to the victim also being the daughter of PWs.1 and 3. But, PW1 - Madhusudhan assaulted the accused and also caused injuries on his lips as a result of which the accused took treatment and caused suture wound. Same has been sufficient as per the evidence of PW8, who has investigated the case and filed charge sheet against the accused.
11. PW3 - mother of the victim has stated in her evidence that her husband has assaulted the accused at about 11.00 pm on 22.12.2014, as a result of which the 10 accused had sustained injuries on his lips. But she has specifically stated that her daughter PW2 said to be the victim did not sustain any injuries, not even a physical injury, therefore did not give any consent for medical test for her daughter. She has further specifically stated in her evidence that they did not give consent to their daughter because she should not go under any trauma.
12. PW8 being the Investigating Officer has laid charge sheet against the accused. On 24.12.2014, the complainant who had come to the police station and given a written complaint at Ex.P1 based upon that he has recorded FIR as per Ex.P6. Subsequently, he visited scene of crime and conducted spot mahazar at Ex.P2 on the same day he recorded statement of PWs.2 and 3. He recorded the statement of PW4 as per Ex.P3, PW5 as per Ex.P4 and PW6 as per Ex.P5, but these witnesses do not support the case. Therefore, the theory has to be set up by the prosecution only to rope 11 the accused. All these evidences require to be appreciated by the trial Court. Same has not been done. Therefore, seeking for re-appreciation of the entire evidence on record in this appeal.
13. The trial Court has erroneously come to the conclusion that the prosecution has proved the guilt against the accused with beyond all reasonable doubts. The conviction held under Section 9 Clause L and M r/w Section 10 of POCSO Act, there is no ingredients for the prosecution to prove the guilt relating to the aggravated sexual assault on the victim, but wrongly imposed the provisions under Section 10 of the POCSO Act against the accused. This aspect is also require to be considered in this appeal, keeping in view the evidence of PWs.1 and 2 as they are material witnesses.
14. On all these grounds the appellant is seeking for allowing the appeal, setting aside the judgment in SPl.C.No188/2015 in its order dated 31st May 2016. 12
15. On controverter to the arguments advanced by the learned counsel for the appellant, learned High Court Government Pleader has taken me through the evidence of PW2 said to be the victim in the hands of the accused that is on 22.12.2014 at about 5.30 pm., accused has come to the house of the victim on the pretext of taking newspaper and the accused has pressed her breast and made attempt to kiss her. Father of the victim has filed a complaint and based on the complaint FIR came to be registered and so also conducted spot mahazar at Ex.P2 in the presence of PW1. Prosecution has placed reliance on the evidences of PWs.1, 2 and 3. Accused committed sexual abuse on the victim on 22.12.2014, but the same has been appreciated by the trial Court, and rightly come to the conclusion that the prosecution has proved the guilt against the accused beyond reasonable doubt. Therefore, in this appeal, it does not arise for calling 13 interference of the impugned judgment and conviction and sentence held by the trial Court under Section 9 (L) and (M) r/w Section 10 of the POCSO Act. It is further contended that he has supported by the impugned judgment wherein the trial Court has given sound reason to prove the guilt against the accused.
16. Having regard to these strenuous contentions as taken by the learned counsel for the appellant relating to the evidence of PWs.1 to 3, insofar as the allegations made against the accused that on 22.12.2014 accused came to the house of the victim on the pretext of taking newspaper and the accused has pressed her breast and made attempt to kiss her. Same has been narrated before her parents ie., PWs.1 and 3. The accused has returned to the house after attending his work and PW1 made assault on his person as a result, accused sustained injuries on his lips and 14 caused suture wound. Same has been narrated in the evidence of PW3 said to be the mother of the victim.
17. PWs.4, 5 and 6 said to be examined by the prosecution did not support the case of the prosecution. Ex.P2 spot mahazar said to be conducted by PW8 in the presence of PW1, the fulcrum of the said mahazar has not been established by the prosecution despite it, the trial Court has held conviction against the accused who said to be committed sexual abuse of PW2 minor child. Trial Court has held conviction under Section 9 (L) and (M) r/w Section 10 of the POCSO Act.
18. Section 10 of the POCSO Act, reads as under:
"10. Punishment for aggravated sexual assault- Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend 15 to seven years, and shall also be liable to fine."
19. Section 12 of the POCSO Act held against the accused that the prosecution has to prove the guilt against the accused under Section 9 (L) and (M) of the POCSO Act.
20. Section 12 of the POCSO reads as under:
12. Punishment for Sexual harassment -
Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
21. The trial Court has held conviction against the accused as under Section 10 of the POCSO Act which says that whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five 16 years but which may extend to seven years, and shall also be liable to fine. Keeping in view the evidence of PW1 who is father of the victim who has filed a complaint as per Ex.P1 and PW3 said to be the mother of the victim who has given the statement as narrated by her daughter PW2 on 22.12.2014, but for the complaint allegation made that the accused who made an attempt to sexual abuse and the accused has pressed her breast and kissed her. Therefore, Section 12 of the POCSO Act which reveals as whoever itself commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
22. Therefore, keeping in view the scope and object of Section 12 as well as Section 10 of the POCSO Act, it is said that the trial Court has erroneously come to the conclusion that the prosecution has proved the 17 guilt against the accused under Section 9 (L) and (M) r/w Section 10 of the POCSO Act. Therefore, it requires to be re-appreciation of the entire evidence on record as well as intervention in the impugned judgment which has challenged in this appeal.
23. Learned counsel for the appellant during the course of his argument has taken the contention that this accused was in judicial custody for a period of 2 years 2 months 24 days. Therefore, keeping in view the evidences of PWs.1, 2 and 3, the same requires to be interfered with the impugned judgment relating to the offences held against the accused.
Though the prosecution has placed much reliance on the evidence of PW-1, PW-2 and PW-3, but on a cursory glance of the evidence of these witnesses relating to the offences levelled against the accused, I find that the prosecution has not established the guilt of the accused by putting forth cogent, consistent and 18 corroborative evidence to probabilise that the accused has committed the offences. Therefore, the impugned judgment passed by the court below convicting the accused requires to be interfered with. The accused is said to have undergone imprisonment for a period of 2 years 2 months and 24 days during the course of his trial after being apprehended by the police. The aforesaid period of imprisonment undergone by him shall be treated as 'service of sentence', which would meet the ends of justice.
24. The trial Court has appreciated the entire evidence on record and also assigning justifiable reasons for having held conviction under Section 9 Clauses (L) and (M) r/w Section 10 of the POCSO Act but wrongly held Section 10 of the aforesaid Act instead of Section 12 of the POCSO Act. Therefore, this appeal requires intervention to the extent of sentence held against the accused in terms of the aforesaid reasons. 19
25. For the foregoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 31.05.2016, passed by the LIII Additional City Civil and Sessions Judge at Bangalore in Spl.C.No.188/2015 convicting and sentencing the accused / appellant herein for the offence punishable under Section 9(L)(M) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012 is hereby modified to the extent that the period of 02 years, 02 months and 24 days imprisonment undergone by the appellant is hereby treated as service of sentence for the aforesaid offence. The sentence is further modified directing the accused to pay a fine of Rs. 10,000/- instead of Rs.50,000/- as imposed by the Trial Court. The said amount shall be paid as compensation to P.W.2, being the victim.
The accused shall be set at liberty forthwith, if he is not required in any other case.
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The Registry to communicate this order to the concerned Superintendent of Jail Authorities where the accused are lodged, for compliance.
Sd/-
JUDGE GH