Karnataka High Court
Shivanand @ Pappu vs State Of Karnataka, on 4 July, 2019
Author: A.S Ju Stice Bellunke
Bench: A.S Ju Stice Bellunke
1
IN THE HIGH COURT OF K ARNAT AKA
DHARWAD BENCH
DATED THIS THE 04 T H DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JU STICE BELLUNKE A.S.
CRL.A.NO.100130/2017
BETWEEN:
SHIVANAND @ PAPPU
BABU MALI @ MALAGAR,
AGE : 28 YEARS, OCC: COOLI E,
R/O BAD VILLA GE, TQ: HUKKERI ,
DIST: BELA GAVI.
... A PPELLANT
(BY SRI MAHESH WODEYAR, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH SNAKES HWAR POLI CE,
REPRES ENTED BY ADDITIONAL
STATE PUBLIC PROSECUTOR,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH, DHARWAD.
... RES POND ENT
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL APPEAL IS F ILED UNDER
SECTION 374 ( 2) OF CRL.P.C., PRAY ING TO SET ASIDE
THE JUDGMENT A ND ORDER OF CONVICTION DATED
01.04.2017 PASS ED BY THE LEA RNED III ADDL.
DISTRICT AND SESSIONS JUDGE, BELAGAVI IN
S.C.NO.360/2013 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 376 AND 307 OF IPC READ WIT H
SECTION 4, 6 & 10 OF POCS O ACT, 2012 AND
2
CONSEQUENTLY ACQUIT THE APPELLANT FOR THE
OFFENCES PUNISHABLE UNDER S ECT ION 376 AND 307
OF IPC R/W SECTION 4, 6 AND 10 OF POCSO ACT ,
2012, IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMI NG ON F OR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been preferred by the accused - appellant, being aggrieved by the judgment and order of conviction and sentence dated 01.04.2017, imposed on him by the learned III Additional District and Sessions Judge, Belagavi in S.C.No.360/2013, for the offences punishable under sections 376 and 307 of the Indian Penal Code (for short "IPC") and sections 4, 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act").
2. By the impugned judgment the accused has been sentenced for the aforesaid offences and he has been handed over punishment as stated below:
3
The accused shall undergo simple imprisonment for 10 years and to pay fine of Rs.5,000/- for the offence punishable under Section 376(1) of the Indian Penal Code, in default to pay fine, accused shall undergo simple imprisonment for 6 months.
The accused shall undergo simple imprisonment for 7 years and to pay fine of Rs.5,000/- for the offence punishable under Section 307 of the Indian Penal Code, in default to pay fine, accused shall undergo simple imprisonment for 6 months.
The accused shall undergo simple imprisonment for 7 years and to pay fine of Rs.5,000/- for the offence punishable under Section 4 of POCSO Act, in default to pay fine, accused shall undergo simple imprisonment for 6 months.
The accused shall undergo rigorous imprisonment for 10 years and to pay fine of Rs.5,000/- for the offence punishable under Section 6 of POCSO Act, in default to pay fine, accused shall undergo rigorous imprisonment for 6 months.
4
The accused shall undergo simple imprisonment for 5 years and to pay fine of Rs.5,000/- for the offence punishable under Section 10 of POCSO Act, in default to pay fine, accused shall undergo rigorous imprisonment for 6 months.
3. In nutshell the facts are that on 23.09.2013 at about 20.30 p.m., the minor daughter of the complainant was taken away by the accused by making some attraction of an eatable. She was taken to an open space near a temple and at about 9.00 p.m., he is alleged to have committed penetrative sexual assault on the child aged about 4 years and raped her and also attempted to kill her.
4. The father of the victim on noticing that her child did not return to the house went in search of her child. Then a witness, who saw the accused and the victim girl together, informed him that the accused had taken away the child and he 5 brought back and left her under a tractor trailer. On tracing the child, the father found that his daughter was in serious condition. Therefore, she was taken to the hospital, where she was admitted and treated. On examination, the doctor found that the child has been sexually abused and also found evidence of rape on the child.
5. Consequently on the complaint filed as per Ex.P.1 by the father of the victim - PW.1 and a crime came to be registered by the Police. The Investigation Officer took up investigation. Spot panchanama and seizure panchanama was conducted. The statement of the victim was recorded. Medical reports were collected. Report from DNA Center and other experts' reports were taken. The statements of witnesses were also recorded. Based on the evidence collected by the Investigating Officer, charge sheet came to be filed before the jurisdictional magistrate for the 6 offences punishable under sections 376 and 307 of the Indian Penal Code and sections 4, 6 and 10 of the POCSO Act.
6. During the course of investigation, the accused has been arrested. He was also subjected to medical test and report pertaining to the accused had been obtained.
7. The learned Sessions Judge took cognizance of the offences alleged against the accused and registered a case against him in S.C.No.360/2013. After securing the presence of accused and after hearing both side charge came to be framed against the accused for the aforesaid offences. Accused pleaded not guilty and claims to be tried.
8. After holding trial, the learned Sessions Judge found that the prosecution has proved the guilt of the accused beyond any reasonable doubt and accordingly convicted him for the offences 7 punishable under sections 376(1), 307 of IPC and sections 4, 6 and 10 of POSCO Act. Consequently the learned Sessions Judge sentenced the accused for the aforesaid offences with various sentence of imprisonment, fine and default sentence. Further the learned Sessions Judge to send the records to the District Legal Service Authority, Belagavi to award additional compensation apart from compensation awarded out of fine imposed on the accused. The said judgment of the trial court has been challenged by the appellant - accused on the following grounds.
9. It is contended that the trial court has not appreciated the oral and documentary evidence on record and thereby has resulted in erroneous finding. The Trial Court has not considered the ingredients of alleged offences. The finding of the victim near a field of a village or near a gutter outside the public toilet is a 8 contradiction appearing in the case of prosecution. The doctor was informed that the child was found outside the toilet in a gutter. That fact is contrary to the evidence adduced by the witnesses who had alleged to have seen the accused and the victim.
10. The Trial Court has not considered the contradiction appearing in the evidence of PWs.11 and 12. The Trial Court wrongly believed the evidence of PWs.7 and 8, their evidence is not trustworthy. The trial Court has overlooked the contradiction and omissions appearing in the evidence on record. The Trial court has not properly appreciated the medical evidence on record. There were no injuries on the accused. Therefore, there was no penetrative sexual assault on the child in question by the accused. The Trial court could not have convicted the accused for the aforesaid offences. No blood stains were noticed on the private part of the accused. No 9 eyewitnesses are there for the alleged incident, the child witness has tutored one. Therefore, the trial court ought not to have believed her evidence.
11. Against this, Sri Raja Raghavendra Naik, High Court Government Pleader submitted that absolutely there are no grounds to disbelieve the evidence of PWs.1 to 3 and medical evidence on record. Further the statement of the victim also proved the identity of the accused and as well as ghastly act committed by him on 4 years aged girl.
12. The girl was found in a very serious condition. The injuries attempted to have been caused by the accused were sufficient to constitute offence under section 307 of IPC also. Committing an act of intercourse by an adult person on a tender aged child of 4 years could have caused death, having regard to the nature of injuries suffered by the victim on her private part. 10 Further the learned Government Pleader submitted that the medical evidence on recoded has fully corroborated the case of the prosecution. There are no reasons to disbelieve the evidence of prosecution witnesses. Merely because there are some lapse on the part of the medical officer in not noting the consent of parents of the victim would not be a ground to acquit the accused. Exact time of incident need not be proved. The victim was traced few hours after the incident in serious condition. She was immediately taken to hospital. Even the medical evidence on record she was in serious condition, therefore, the learned Government Pleader submitted that the prosecution has proved the guilt of the accused beyond any reasonable doubt. Hence supporting the judgment of the trial court, he prayed to dismiss the appeal.
11
13. Learned counsel for the appellant replied that identity of the accused is not proved. No test identification pared has been conducted. It is a case of political motivated. The accused and father of the victim belong to two different factions in the village. Having allegiance to political parties, by tutoring the child a false case was made out against the accused. There are three different types of versions with regard to finding of the victim immediately after the incident. There is no eyewitness. The evidence on record is totally unbelievable particularly PWs.7 to
9. The case is based on the tutored evidence, therefore relying on certain citations, the learned counsel prayed to allow the appeal and acquit the accused.
14. Based on the above said pleadings of the parties, the following points would arise for consideration of this Court.
12
1. Whether the prosecution had proved before the trial court beyond any reasonable doubt that the accused had committed offences punishable under sections 376(1) and 307 of IPC and sections 4, 6 and 10 of POCSO Act?
2. Whether the appellant proves that the impugned judgment and order of conviction and sentence passed by the trial court is perverse, capricious and against the facts and circumstances and evidence on record and it is liable to be set aside?
3. What Order?
15. At the very outset, at the time of arguments I have ascertained from the counsel for the appellant as to what are the strong reasons for the complainant and his witnesses to implicate the accused falsely in such a case involving a child of 4 years old. Learned counsel reiterated that, it is only on account of political rivalry in the village, 13 the accused has been falsely implicated in this case.
16. On perusal of the explanation given by the accused in his statement recorded under section 313 of the Crl.P.C., it is found that except denial of incriminating circumstances put to him, no possible or believable explanation, as such, is made out. In addition to that no semblance of a kind of suspicion is pointed in case of the prosecution so as to hold that the case is not proved beyond any reasonable doubt. No circumstances, as such, are pointed out from the evidence on record to show that there are sufficient grounds to raise reasonable doubt in the mind of the Court. The defence of the accused is that he has been falsely implicated is not based on any material fact. However, it is bounden duty of the Appellate Court to examine the entire evidence on record to find out whether the finding given by 14 the Trial Court is supported by the medical evidence on record and find out whether the guilt of the accused has been proved beyond any reasonable doubt.
17. On perusal of the complaint at Ex.P.1 filed by the father of the victim it is found that there is specific allegation against the accused himself taking away the 4 years girl on the date of incident at about 8.30 p.m. The wife of the complainant on finding that her daughter has not returned, she contacted her husband who was somewhere near the bus-stand of the village. He was informed that this accused had come to the house and had taken the child on the pretext of getting chocolate and thereafter he has not returned. Therefore, there is direct evidence in the statement of the mother of the victim who has seen this minor girl being taken away from her custody on the pretext of getting eatable to the 15 child. Thereafter the complainant and other witnesses started searching for the accused. When they were coming near a kirana shop in the village, the witness Sri Basavaraj on seeing them came and told that the accused brought a child on his shoulder and has alighted her below a vehicle and ran away. On seeing, they found that the victim was in serious condition and in pain. There were injures on her cheek as well as on her private part. Immediately they took her to the hospital at Sankeshwar. The father of the victim filed a complaint in the intervening night on 24.09.2013. Therefore absolutely there is no delay in filing the complaint. That has been spoken by the complainant - PW.1 in his version.
18. According to the version of PW.1, the girl was in the hospital for nearly about 8 months and she was in ICU for 43 days. He also speaks about showing the place of the incident to the 16 police. In the cross-examination, it is elicited that on the date of incident there was Ganapati Visarjane Karyakram. There were people around the temple and the place of incident is not a secured place etc. He admitted in the cross- examination that, his daughter was lying near the gutter outside the public toilet, but he denied that he had stated before the doctor that somebody in the village had committed the said act. It is suggested that the accused was not at all in the village on the date of incident. The defence is that of a plea of alibi. If the plea of alibi is not proved, then the presence of accused stands admitted and proved.
19. PW.2 said to a panch witness to the mahazar at Ex.P.2 he is said to be the friend of father of the victim. That cannot be a ground to disbelieve his version. PW.3 another panch 17 witnesses to seizure mahazar of cloths of the victim marked at Ex.P.4.
20. PW.4 is an important witness who has seen the scene of offence which is shown by the accused, where a small piece of undergarments was also found. According to PW.4, accused told him that he has made the child to sleep near the temple as it has fallen down and sustained injury and he has also laid her below a four wheeler and that spot was shown and panchanama was taken and photographs were also taken at Ex.P.5. Noting is elicited in the cross-examination to disbelieve his version.
21. PW.5 has not supported the case of prosecution, but he has categorically stated that the accused and victim girl had come to his shop and they took a papdi pocket. In the cross- examination he admits the suggestion made by the prosecutor and admitted that he has given 18 statement before the police as per Ex.P.7. He admitted that he has given statement about commission of the act of that accused coming to his shop along with a child and purchased papdi pocket and accused had committed rape for the first time. Apart from that nothing is elicited. He admits, what he had stated before the police. He has deposed that what has been stated before Court is for the first time. He was giving evidence before the Court for the first time. That Court be taken to argument he has not stated before the Investigating Officer anything. Therefore the witness stated that what he has said before the Court is that he is stating for the first time.
22. Next important witness is PW.6 - the victim child, which has stated what acts of the accused was committed. She was thrown near a temple. Admitted that she thrown near the gutter. She has clearly stated that what acts were 19 committed by the accused on her and she was given papdi etc. However, in one sentence she admitted that her parents have told her to what they say. Having regard to the tender age of the child, the statement is quite natural. Therefore, that alone should not be taken to disbelieve her evidence having regard to the age of the victim, I find that not much importance can be given to one line stray sentence. Moreover, her statement is corroborated by other material evidence on record i.e., medical evidence and statement of other witnesses.
23. PW.7 is the neighbor of the complainant. Admittedly she has not seen girl being brought from the place of incident. She had only seen the wife of PW.1 in searching for her daughter as she was not found, rest of the evidence is what she has heard, she has stated. But the fact that the mother of the victim was searching for the girl 20 stands corroborated by her evidence. Remaining partition of the evidence is that of hearsay. Therefore, she had stated certain facts for the first time would not be a ground to discard her evidence in toto.
24. PW.8 is another most important person who had seen the victim being carried on the shoulder of the accused and he had kept her below a pickup van at about 9.00 p.m. Then he went there and saw that the victim was unconscious and she suffering from injuries. Meanwhile he also found the parents searching for her daughter and all of them took the injured to the hospital. Therefore, they came to know that, the victim girl has been raped. Except suggestions nothing is much elicited in the cross-examination to disbelieve his version.
25. Then comes to the evidence of PWs.9, 11 and 12 the medical officers. Their evidence 21 clearly proves that the child was of penetrative aggravated sexual assault.
26. PW.9 has also opined that the injuries sustained by the victim are serious in nature. Ex.P.9 is the wound certificate. The injury Nos.1 to 4 i.e., on the left cheek, rupture of hymen, Perineal tear of two places near the vagina would certainly prove that an act of rape was committed on the minor girl. The seizure of cloths pertaining to the accused is under Ex.P.10 mahazar. Photographs at Ex.P.11. Except suggestion, nothing is elicited. For the purpose of further examination, the doctor PW.11 has not collected vaginal smear and hairs etc. She had also affirmed that there were injuries on the victim. Her report is at Ex.p.12. Non-mentioning of name of the accused in the case sheet would not be a ground to discard her evidence. The information given by the mother that the girl was found near the public 22 toilet is admitted. She has not mentioned age of the wound and colour of the same etc. There is no note in the case sheet for having taken the consent of the mother. There was possibility of sustaining injury by the person also who tried to rape on the child. Therefore, the learned counsel for the defence had submitted that in the absence of injuries on the accused, the act of rape cannot be held to have been proved.
27. It is important to note that the accused has made penetrative sexual intercourse. He was an adult person therefore the injuries have been more cause to the victim. PW.12 doctor who had seen the girl at 10.20 p.m., on that date with history of sexual assault, she found that the girl was unconscious. She was gasping for air and she was in a very serious condition. The injuries found on the girl have been noted and report is at Ex.P.14. Thereafter the victim girl was referred to 23 major hospital at Belagavi. She admits that nail clipping of the victim are not collected she has given only first aid and sent the victim girl to the major hospital. Therefore, question of collections of certain material objects would itself make the evidence unbelievable.
28. PWs.13 and 14 are the PDO of Bad Gram Panchayath and KEB officials respectively who have affirmed that there was power supply in the village on the date of incident.
29. PW.15 who had examined the accused and had given his report at Ex.P.17. He has specifically stated that the accused was indulged in an act of sexual intercourse. It is also found that on the left cheek there was an abrasion caused by the nails. The skin of the penis was moving easily both front and back i.e., the reason he had committed rape on a very tender age girl, no injuries have caused to his penis. He was found 24 to be capable of act of sexual. The report is at Ex.P.17. Nothing much is elicited in the cross examination to disbelieve the version of the doctor.
30. PW.17 is the Investigating Officer who had conducted investigation. In his cross- examination noting is elicited to show that he had any reason to implicate the accused falsely. It is elicited that PW.7 has not stated that a local doctor in the village had admitted the victim and she was taken to clinic of one Mastolli Matt then rest of the statement alleged to have not been given by the witness is denied and affirmed that he had given such statement.
31. PW.18 is another investigating officer. The blood samples of the victim and as well as the accused were got collected from the medical officer. The seized articles were sent for FSL examination. Nail scratch mark was also found on 25 the accused. After finding that the victim was capable of giving statement, he got recorded her statement before the learned Magistrate. He also speaks about obtaining of certificate from the concerned authority about power supply at Ex.P.16. After completing investigation he filed charge sheet against the accused. Then the DNA report issued at Ex.P.20. He has been cross- examined at length. Nothing is elicited to show that he has any reason to implicate the accused falsely.
32. PW.19 is another police officer who had apprehended the accused and recorded his voluntary statement at Ex.P.23. The place of incident was shown to him. He conducted panchanama and spot mahazar at Ex.P.10. The articles produced by the accused under M.Os.4 to 6 seized under Ex.P.10. Photographs taken by him marked at Ex.P.11 and conducted mahazar of the 26 scene of offence at Ex.P.5. Sketch of scene of offence is at Ex.P.24. The pieces of papdi alleged to have been given by the accused to the victim were taken from them were at M.O.3. Then he had also taken a step to collect DNA samples etc. Suggestions are made that are denied. He admits that blood stains are not found in the photograph at Ex.P.6. He has conducted the investigation after the arrest of the accused on 25.09.2013. Therefore, the said stains might not have remained there due to passage of time. Therefore, on appreciation of the evidence on record I find that the prosecution has proved the guilt of the accused.
33. The learned defence counsel has relined on the following authorities.
1. 2014 Crl.L.J. 4789 (Pool Chand V. State of Madhya Pradesh) 27
2. 1999 Crl.L.J. 3976 (Jogendra Nahak and others vs. State of Orrissa and others)
3. LAWS (SC) 2015 10 39 (Ram Sunder Sen and others Vs. Narender)
4. LAWs (Pat) 2015 4 59 ( Mukesh Paswan Vs. State of Bihar)
34. I have carefully and cautiously gone through the said authorities. In the authority relined on by the learned counsel for the appellant reported in 2014 Crl.L.J. 4789 (Pool Chand V. State of Madhya Pradesh), the prosecutrix was found to be in habitual to sexual intercourse. Therefore, the prosecutrix was under the influence of her mother possibility of tutoring cannot be denied. In this case, the girl is of a tender age of 4 years therefore, the principle laid down based on the above referred fact would not applicable to the case in hand.
35. In the another decision relied on by the learned counsel for the appellant reported in 1999 28 Crl.L.J. 3976 (Jogendra Nahak and others vs. State of Orrissa and others), where the Hon'ble Apex Court has held that section 164 of Cr.P.C., does not empower the magistrate to record statement of witness on his request even though not ask for by the investigating agency. The said authority in question would not be applicable to the case in hand because in this case accused has been prosecuted under the provisions of POCSO Act. Section 25 of POCSO Act specifically provides for recording the statement of a child by magistrate and it is a mandatory provision. Therefore the said authority would not come to the aid of the appellant.
36. Learned counsel for the appellant has also relied a decision reported LAWS (SC) 2015 10 39 (Ram Sunder Sen and others Vs. Narender) it is purely based on circumstantial evidence where the victim was not only raped but 29 also murdered. Therefore, the chain circumstantial evidence was not proved in the form of a chain without there being any delink which was held that the prosecution had failed to prove the guilt of the accused. Moreover in the said case the defence witness were also examined to prove the defence of the accused. But in this case there is direct evidence against the accused who has been seen takeaway the victim and dropping her after commission of the ghastly act therefore the appellant cannot be relied on the above said authority.
37. He has further relied upon another decision reported LAWs (Pat) 2015 4 59 (Mukesh Paswan Vs. State of Bihar). It was the case where the minor girl was raped. The evidence on record was grossly insufficient to hold that the accused was guilty of the offence of rape and attempted to commit murder. There the allegation 30 was that the child was taken away by accused, there was no credible and convincing evidence that the accused appellant found at the place, where the child was found lying. But in this case there is direct evidence that the accused who had taken the child on the pretext of giving some eatables. Therefore, the said authority would not be applicable to the case in hand.
38. The learned High Court Government Pleader also relied on a decision reported in AIR 2019 Supreme Court 1120 (State of Madhya Pradesh Vs. Harjeet Singh and another) and argued that there is no requirement that, if any injuries should be there on the vital part of the body to constitute an offence under section 307 of IPC. If the hurt is caused with an intention or knowledge of causing death is sufficient to attract section 307 of IPC. In this case the accused must have been having an intention or knowledge that 31 his act would have been caused death of the injured committing a ghastly act on 4 years child would definitely import knowledge on the part of the accused and his intention also made out by biting the cheek and chest portion of the victim. The act could have resulted in the death of the injured having regard to the tenderness of the age. The learned High Court Government Pleader has also relied on the following decision.
1. AIR 2005 Supreme Court 3570 ( State of MP Vs. Dayal Sahu)
2. AIR 1983 Supreme Court 759 = 1983 Cri.L.J 1102 ( National Textile Workers' Union, Vs. P.R.Ramakrishnan and others.
3. (1983) 4 Supreme Court Cases 10 (Sheikh Zakir Vs. State of Bihar)
39. Having regard to the facts and circumstances of the case and the lacuna regarding non-production of doctors' report was held to be only fatal to the case of prosecution. 32 While appreciating the evidence on record, much importance cannot be given to minor discrepancies and how the testimony of the prosecutrix is to be appreciated is also explained. Merely because the witnesses are related to the prosecutrix would not ordinarily subscribe the false story of rape on his daughter and thereby inviting ignominy. In this case it cannot be believed that for the political rivalry a father or mother would not use their 4 years tender aged daughter as a bait to prosecute the case.
40. Even in the absence of medical examination the testimony of prosecutrix if corroborated can be believed to base a conviction on the accused for the offences punishable under Section 376 that is what relied on by the Hon'ble Apex Court reported in (1983) 4 Supreme Court Cases 10 (Sheikh Zakir Vs. State of Bihar). Therefore on careful appreciation of 33 evidence on record, I find that the prosecution had proved the guilt of the accused beyond any reasonable doubt. The appellant has failed to prove that the impugned judgment of the trial court is perverse, capricious and against the evidence on record and facts and circumstances of the case. Hence the point No.1 is answered in the affirmative and point No.2 in the negative. Hence I proceed to pass the following:
ORDER
1) Appeal filed by the accused is dismissed.
2) The judgment and order of conviction and sentence dated 01.04.2017 imposed on the accused - appellant by the III Additional District and Sessions Judge, Belagavi in S.C.No.360/2013 is hereby confirmed.
3) Send back the records to the Trial Court for further needful action.
Sd/-
JUDGE EM