Karnataka High Court
State Of Karnataka vs Noor Ahammed Fakeersab on 17 February, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.100041/2016
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR
KUMTA POLICE STATION
THROUGH ADDL. STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI. PRAVEEN K.UPPAR, HCGP )
AND:
NOOR AHAMMED FAKEERSAB
AGED ABOUT: 23 YEARS,
OCC: DRIVER, KEERTHIGADDE,
SANTEGULI, KUMTA, KARWAR,
UTTARA KANNADA DISTRICT.
... RESPONDENT
(BY SRI. S.L.MATTI, ADVOCATE )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF
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ACQUITTAL DATED 27.06.2015 PASSED IN
SPL.C.NO.21/2013 BY THE COURT OF THE DISTRICT AND
SESSIONS JUDGE, UTTARA KANNADA, KARWAR AND TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 27.06.2015 PASSED BY THE COURT OF THE
DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA,
KARWAR, IN SPL.C.NO.21/2013 AND CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.
354(A) OF IPC AND SECTION 8 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment and order of acquittal dated 27.06.2015 passed by the learned District and Sessions Judge, Uttara Kannada, Karwar, in S.C.No.21/2013 for the offence punishable under Sections 354(A) of IPC and 8 of The Protection of Children From Sexual Offences Act, 2012 ( hereinafter referred to as "POCSO" Act.
2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court.
3. The complaint is lodged by the victim minor girl who is aged about 14 years. She is the daughter of Satish Naik. She was studying in 8th standard in :3: Government High School at Santeguli, at the time of the incident, There is forest area after some distance from her house. On 14.03.2013 at about 16.45 hours, when the victim after attending the classes in the school returning to her village and after getting down from the vehicle on the road, she was proceeding towards her house through path way and at that point of time, the accused with sexual intention, touched right breast of the victim from his right hand and molested her by squeezing her right breast. However, she was able to get rid of him and ran away and went to her house and informed her father on phone as at that time who was then in Goa and he informed Rajendra Naik, Ganapati Naik, Janardhan and Jattappa Naik and they immediately went to the house of the victim and ascertained what had happened and then they took her to the police station, where she lodged a complaint as per Ex.P3. Thereafter, the complaint came to be registered in Kumta Police Station in Crime No.75/2013 for the offences punishable under Sections 354(A) of IPC :4: and 8 of Protection of Children From Sexual Offences Act, 2012, against the respondent/accused.
4. The matter was investigated and final report was submitted by the Investigating Officer and the accused was charge sheeted for the aforesaid offences.
5. The prosecution has examined 8 witnesses as PWs.1 to 8, got marked 7 documents as Exs.P-1 to P-7 and there are no material objects. The respondent/accused was examined under Section 313 of Cr.P.C., he denied the allegations in total and did not chose to lead evidence but filed statements of defence. The learned Judge came to the conclusion that the prosecution failed to establish the case against the accused beyond reasonable doubt and acquitted the accused for the offences punishable under Sections 354(A) of IPC and 8 of Protection of Children From Sexual Offences Act, 2012, as stated supra. The same is challenged in this appeal.
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6. I have heard arguments of learned High Court Government Pleader appearing for the appellant and the learned counsel appearing for respondent/accused.
7. The case of the appellants state is that the trial Judge was not justified in acquitting the accused for the offences punishable under Sections 354(A) of IPC and 8 of POCSO Act.
8. It is the case of the prosecution that the accused abruptly came in the way of victim held her and started pressing or squeezing her right breast by his right hand ensuring that it was no man's area. The victim girl mentions the overt acts.
9. In this connection PWs.1 to 3 were examined. PW.1/Dr. Mahesh Shetty is the Senior Specialist attached to the General Hospital, Kumta. He has stated that on 14.03.2013, at about 8.00 p.m., the victim was produced before him by Head Constable 527 with a requisition and had examined her. The witness has :6: stated that the victim complained pain in the right side of her chest, but no visible injury was found.
10. PW.2/Smt. Shakuntala is the Headmistress of the school, where the victim is studying and she has issued a certificate with regard to the date of birth entered in the School Register.
PW.3/the victim girl, PW.4 is the witness for the spot mahazar. PW.5 is the then ASI, who is said to have received the written complaint from the victim and registered a case based on it and arranged to sent the FIR to the Court. PWs.6 and 7 are the two witnesses who had taken the victim on that day to the Police Station in a vehicle. PW.8 is the Investigating Officer who has completed the investigation and submitted the final report.
11. Learned counsel for the respondent/accused would submit that the medical examination said to have been conducted on the victim girl is not proper and it is :7: against the mandate of Section 27 of POCSO Act, which is as under;
27. Medical Examination of a child. -
(1) The medial examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) In case the victim is a girl child, the medical examination shall be conduced by a woman doctor.
(3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
(4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution.:8:
Thus, the medical examination of the victim girl as provided under Section 27(2) of POCSO Act, has to be conducted by woman doctor.
12. He further submits that violation of the procedure prescribed by the section, the said provision of law regarding medical examination is a substantial lapse and the entire trial is vitiated.
13. Insofar as medical examination is concerned, the learned counsel for respondent suggested a question to the doctor, as to whether a person presses on breast or squeezes as stated by the complainant, injuries are possible. The doctor answers that it is a case of simple injury. I do not appreciate the nature of question or the kind of answer.
14. He further submits that there was no occasion for the accused to commit the offences. Moreover, the place is a traffic area wherein the people will be moving and it :9: cannot be stated that in the amidst crowd any one can outrage the modesty.
15. Insofar as the injury is concerned, the medical examination under Section 27 of the said Act, ought to have been conducted by a woman medical officer. " Yes when sexual offence of the highest order, in order to prevent errors, negligence mal or nonhandling of substances lady medical officers are notified. But in the present case the emotionally disturbed victim because of ghastly gesture of the accused it was necessary to get inspected to know her position both from the point of her health and the ends of equity, justice and law.
Further examination by a lady doctor would induct more fearness in the victim and she has not complained on the medical examination.
16. He further submits that in order to hush-up the evidence, the medical examination was conducted by a male doctor.
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17. Learned counsel for the respondent further submits that there existed election and family rivalry between the families and that prompted the complainant to make a false allegation against the accused.
18. In the circumstances, it is necessary to make mention of Section 7 of the said Act, which is as under;
7. Sexual Assault. - 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. The said section mentions the intention regarding committing the sexual assault. It is an act in furtherance of his desire for sex for the sake of satisfying the lust, touches the private parts like vagina, penis, anus, breast of other persons, if the sexual intention is there it completes the offence. : 11 :
19. The relevant point would be as to whether the accused therein was in know of the victim girl who is aged about 14 years and by misusing the covered area of forest at Santeguli Village, while she was returning from the school took her by surprise and held her and pressed her breast knowing that she was a minor girl.
20. 'Injury is not a condition or requirement' for an offence under Section 7 of the said Act.
21. I have perused Ex.P5-Mahazar, which is said to be the place of offence and the victim girl being present at that time of mahazar on 14.03.2013. The place is not a regular road, may be width of 8 - 10 feet with turns taking the shape of English letter 'Y'. Insofar as topography is concerned, it is not a residential area. The place is surrounded by trees, leaves and having all the features of secluded area and way is mud road. In this connection, submission made by the learned counsel for respondent/accused that it is a traffic area : 12 : or crowded area cannot be accepted and accordingly it is rejected.
22. It is to be noted that, if any sexual assault like the present one was committed, a girl who is studying 8th standard being aged 14 years, from the rural side would hesitate to reveal before the doctor if he is a male doctor. Thus, the submission made by the learned counsel for respondent cannot be accepted and it is rejected. Moreover, there is no prescribed minimum number of page or pages of complaint or the oral evidence regarding the offence of the present kind.
23. Darkness and place bring beast in a man. The accused gets his lust ignited and he relished the circumstance after holding, pressing and squeezing the right breast of the victim girl. He never bothered to release her despite her screaming, Thus there were two misuses committed by the accused (1) the time and location (2) the girl aged 14 years who did not possess over powering force. Further regarding collecting : 13 : telephone details by the victim girl, the prosecution has not collected the call details. So far as the provision of law is concerned, the allegation is, the commission of offence punishable under Section 7 of the POCSO Act and Section 354-A of IPC, as a matter of fact, in substance both will give the same ingredients. However, if it is on a child as defined under Section 7 of POCSO Act, the punishment should not be less than three years.
24. Section 354-A of IPC is as under;
354A. Sexual harassment and
punishment for sexual harassment. - (1) A
man committing any of the following acts -
(i) physical contact and advances
involving unwelcome and explicit
sexual overtures; or
(ii) a demand or request for sexual
favours; or
(iii) showing pornography against the
will of a woman; or
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(iv) making sexually coloured remarks,
shall be guilty of the offence of
sexual harassment.
(2) Any man who commits the
offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both).
25. Thus, substantially both 354-A of IPC and 8 of POCSO Act, possess the same substance. However, in terms of the nature of offence differs as in case of a child. It becomes offence defined under Section 7 punishable under Section 8 of POCSO Act, 2012.
26. Thus, in the circumstances, the girl was studying 8th standard as on the date of offence. The school : 15 : certificate is issued by the school authorities and the same was got marked as Ex.P2. But there is another document which is a laminated document i.e. Birth Certificate of the victim girl and date of birth of victim is shown as 17.01.2000. The trial Judge has not bothered to read it or note it or discuss it and even has not marked the document. The offence is committed by the accused because of family or electoral rivalry. It is the lust with beastly lacing in the accused that has been made the reason for his beastly act.
27. In the context and circumstances, the learned Judge has focused on the family rivalry or other rivalries and concludes that acts of that a false complaint is given. There is no proper appreciation of evidence and there is no logical answer to the discussions. The learned Judge has forgotten the whole aspect and object of the case in the circumstance and the importance of the Special Act. Thus, the order of acquittal is liable to be set aside. Hence, the : 16 : appellant/State has made out the substantial grounds to allow the appeal.
28. In the circumstances of the case, the appeal preferred by the appellant/State against the judgment and order of acquittal dated 27.06.2015 passed in Spl. C.No.21/2013 by the Court of the District and Sessions Judge, Uttara Kannda, Karwar, is hereby set aside and the accused found guilty of the offence punishable under Sections 354-A of IPC and 8 of POCSO Act.
29. Learned counsel for the respondent/accused would submit insofar as the sentence aspect for the aforesaid offence is concerned, he leaves it to the Court.
Hence, the following:
ORDER The appeal is allowed.
The judgment and order of acquitting the accused dated 27.06.2015 passed in Special C.No.21/2013 by the learned District and Sessions Judge, Uttara : 17 : Kannada, Karwar is set aside for the offences punishable under Sections 354-A of IPC and 8 of POCSO Act.
The learned counsel for accused/respondent was heard on the sentence.
The respondent accused-Noor Ahammed fakeersab sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.9,000/- in default simple imprisonment for six months.
The trial Court is directed to secure the presence of accused and issue necessary warrant to lodge him in the jail for the purpose of serving the sentence.
Send a copy of this judgment along with records to the trial Court forthwith.
Sd/-
JUDGE msr