Karnataka High Court
K Paramesha vs The State Of Karnataka on 20 September, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.714/2018
BETWEEN:
K. Paramesha
S/o Kantharaju,
Aged about 29 years,
Coolie
R/o Gantekanive
M.C.Halli, Kasaba Hobli,
Tarikere Taluk,
Chikkamagaluru District-577 228
...Appellant
(By Sri. Rahul Rai K., for Aruna Shyam M, Advocate)
AND
The State of Karnataka
Through Tarikere Police Station
Chikkamagaluru.
...Respondent
(By Sri. M. Divakar Maddur, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the judgment and order of
conviction and sentence dated 11.04.2018 passed by the I
Additional Sessions and Special Judge, Chikkamagaluru
2
in Spl.C.(PCSOA) No.27/2016 - Convicting and sentencing
the appellant-accused for the offence punishable under
Section 366A and 376(2)(j) of IPC and Section 5(m) read
with 6 of POCSO Act.
This Criminal Appeal coming on for Hearing, this
day, the Court delivered the following:
JUDGMENT
The present appeal has been preferred by the appellant/accused challenging the legality and correctness of the judgment and order of sentence passed by the I Additional Sessions and Special Judge, Chikkamagaluru in Spl.C. (PCSOA) No. 27/2016 dated 11.04.2018.
2. I have heard the learned counsel for the appellant and learned HCGP for the respondent State.
3. The gist of the complaint as per the case of prosecution is that on 02.04.2016 at about 12.00 noon at Gante Kanive village when victim along with her sister was playing in front of her house accused noticed the victim. By assuring her to give chocolate took her to his rented 3 house and made her to lie on the wooden cot and thereafter forcibly removed her clothes and he also removed his pant. Thereafter, he laid on her pressed her chest, touched and penetrated her vagina and there by he has sexually assaulted the minor girl whose age is about 12 years. Thereafter he sent her out of the house by giving Rs.2.00/-. Her sister saw her coming out of the house of accused by weeping. Later mother of the victim came to the house at about 7.00 p.m. Victim informed the said incident by weeping and thereafter next day the father of the victim filed a complaint. On the basis of the complaint a case has been registered and after investigation the charge sheet was filed. Copy of the charge sheet was furnished to the accused. After hearing the learned PP and the learned counsel for the accused, charge was prepared and read over and explained to the accused. The accused not pleaded guilty and the case was fixed for trial. 4
4. In order to prove the case, the prosecution got examined eleven witnesses and got marked 18 documents and 7 material objects. Thereafter the accused was examined under Section 313 of Cr.P.C. by putting incriminating evidence against him. He denied the same and he did not step into witness box not led any evidence and not got marked any documents. After hearing the parties the trial Court convicted accused for the offences punishable under Section 366A of IPC and Section 5(m) read with Section 6 of Protection of Children from Sexual Offences (hereinafter the same is referred to as 'Act' for brevity) Act, 2012 and also under Section 376(2)(j) of IPC. Challenging the legality and correctness of the judgment of conviction and order of sentence the accused/appellant is before this Court.
5. Main grounds urged by the learned counsel for the appellant is that the complainant in his evidence has deposed that the complaint has been written by one Sri. 5 Shivu S/o. the complainant, and in the cross examination he admitted the fact that what has been written in the complaint is not known to him and he has also admitted about the animosity between the accused and the son of the complainant. Complainant's son has married the sister of the accused. He further submitted that the victim who came to be examined as PW2 in her evidence has not corroborated with the evidence of PW6 -Doctor who examined the victim and has issued the certificate as per Ex.P10. In Ex.P4 -Medical report, the Doctor has clearly opined that there is no recent evidence of sexual intercourse. It is his further submission that as per medical report no injuries were seen on the private part of the victim and even hymen is also intact. That itself goes to show that the accused has not penetrated and a false case has been registered. He further submitted that though there is no concrete evidence to connect the accused to the alleged offence the trial Court has wrongly convicted the accused. It is his further submission that 6 PW2-the victim, in her cross examination has clearly admitted that in pursuance of the tutoring by her mother, she has deposed before the Magistrate. Under such circumstances, her evidence is not acceptable. It is further submitted that PWs-1 to 4 are the interested witnesses and the relatives only with an intention to take revenge on accused a false complaint has been registered as against the accused.
6. Alternatively it is his further submission that in order to convict the accused under Section 376(2)(j) of IPC there must be penetration, as per the evidence of PW6 and Ex.P4 they clearly goes to show that there is no penetration. Under such circumstances, the Court below ought not to have convicted the accused for the offence punishable under Section 376(2)(j) of IPC. He further submitted that even in order to convict the accused under Section 5(m) of the Act also penetration is very much necessary. But when Ex.P4 and evidence of PW6 clearly 7 goes to show that there is no penetration, then under such circumstances, the Court below ought to have convicted the accused under Section 7 of the Act "Only the sexual assault not a penetrative sexual assault." He further submitted that the accused is liable to be convicted under Section 8 of the Act for the period which he was in custody. He further submitted that the accused has been there in custody for a period of 3 years, 5 months and 17 days and the same may be given a set-off. On these grounds, he prayed to allow the appeal and set aside the impugned order.
7. Per contra, learned High Court Government Pleader vehemently argued by substantiating the judgment of the trial Court, he further submitted that the evidence of PW2-the victim clearly goes to show that the accused eloped the minor girl to his house without the consent of lawful authority of parents and thereafter he has sexually assaulted including penetrating sexual 8 assault. The said evidence is corroborated with the evidence of PW3- sister of the victim who also clearly deposed before the Court that she saw PW2 coming out of the house of accused. Immediately, victim has disclosed the act of the accused when PW4-mother of the victim came. Thereafter, the complaint has been registered by PW1. He further submitted that there is nothing to discard the evidence of PW2. When substantive evidence is there, then under such circumstances, the Court below has rightly analysed the evidence and has come to the right conclusion and rightly convicted the accused.
8. He further submitted that there is a strong presumption under Section 29 of POCSO Act, then the accused has to rebut the said presumption. On going through the cross examination, no such evidence has been brought on record to rebut the presumption including the statement of the accused under Section 313 of Cr.P.C. The accused also has not made out any good 9 grounds to interfere with the judgment of conviction and order of sentence passed by the trial Court. Hence, the judgment of the trial Court deserves to be confirmed. On these grounds he prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties perused the records and paper book.
10. In order to prove the case of the prosecution, prosecution has got examined in all 11 witnesses. PW1 is the complainant-the father of the victim. In his evidence he has deposed that on 02.04.2016 he went in the early morning at about 6.00 a.m. to coolie work and he came back at about 6.00 p.m. along with PW4-his wife. At that time his first daughter-victim was weeping and she told that about 2.00 p.m. accused came to the house and took her towards his house and thereafter made her to lie on the cot and disrobed her and sexually assaulted. The said fact has also been deposed by PW3. He further submitted 10 that he went to the Police Station and filed a complaint as per Ex.P1.
11. During the course of cross examination he has deposed that the complaint has been written near the Police Station and he does not know what has been written in the complaint. He has admitted the fact that the accused belongs to Huli Thimmapura Village. It is at a distance of 35 km. from his place. He has also admitted the fact that his son Ranganatha was in love with sister of Murugesha and he got married her and the other suggestion with regard to demand of dowry has been denied.
12. PW2 is the victim girl. She has deposed that when herself and her sister were playing infront of the house, Paramesha came. By offering the chocolate he took her to the house of Murugesha and a wooden cot was there in the house. He made her to lie on the cot and disrobed her. Thereafter he pressed her breast and 11 penetrated sexually and there was a pain on her private part. After sometime she worn her clothes and came to her house and while going accused gave her Rs.2.00/- to purchase chocolate. When she came out of the house of accused her sister asked her why she was weeping. On that she explained what has been done to her by the accused.
13. It is further deposed that about 6.00 p.m. her parents came and she explained the incident. Thereafter she has taken to Tarikere Hospital and there the Doctor has examined her and she has given her another dress. During the course of cross examination, though several suggestions have been made the said suggestions have been denied. At para 10 she has deposed that she has deposed before the Magistrate as per the say of her mother, except that nothing has been elicited. Sister of the victim has also deposed by reiterating the evidence of PW2 and even during the course of her cross examination she 12 has admitted the fact that there was a quarrel between the accused and Murugesha and his wife and her parents and other suggestions have been denied. PW4 is the mother of the victim. She has also deposed by reiterating the evidence of PW1. During the course of cross examination, the suggestions which have been made have been denied. PW5 is the Mahazar witness to Exs.P2 to P5. He has not supported the case of the prosecution and he has been treated as hostile. Even during the course of cross examination learned Public Prosecutor has not elicited anything.
14. PW6 is the Doctor who examined the victim. She has deposed that the victim was brought by Assistant Sub Inspector with a history of sexual assault along with her mother and she examined the victim. The victim had physical developments as per her age and when she examined the private part, she did not find any injuries but there was a white discharge. Victim was talking well 13 and she has collected the clothes of the victim and handed over the same to the Police Constable. Thereafter, she has given her report as per Ex.P4 and has given her opinion after FSL report as per Ex.P10, FSL report and the clothes which have been sent for Medical Examination does not support the case of prosecution. No seminal stains were found on the clothes except on item No.5, which is the underwear of the accused. It supports the case of the accused.
15. During the course of cross examination nothing has been elicited to discard the said evidence. PW7 is another Doctor who examined the accused and has given the report as per Ex.P11. PW8 is the Police Constable who went in search of accused and he apprehended the accused on 03.04.2016 and produced before the Court. PW9 is the Head Constable who received the complaint as per Ex.P1 and registered the case and issued an FIR as per Ex.P13. PW10 is the seizure mahazar 14 pancha to Exs.P14 and P15. In his cross examination nothing has been elicited to disagree with his evidence. PW11 is Circle Inspector who filed the charge sheet against the accused.
16. It is the contention of the learned counsel for the accused that there is no incriminating material in the statement of victim recorded under Section 164 of Cr.P.C. and even the evidence of PW2 is not trustworthy, reliable and not corroborative with the evidence of Doctor -PW6 and Ex.P4. As could be seen from the evidence of PW2 victim, no doubt she was a minor at the time when she came to be examined before the Court. It is well proposed proposition of law by the Hon'ble Apex Court that evidence of a child witness is not required to be rejected per se; but the Courts as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based on the evidence of the minor victim. This proposition of 15 law had been laid down in the case of Golla Yelagu Govindu Vs. State of Andhra Pradesh reported in AIR 2008 SC 1842.
17. Keeping in view the above said proposition of law, if the evidence of PW2 is perused it discloses the fact that when herself and PW3 were playing in front of their house accused took her to his rented house, made her to lie on the cot and disrobed her. Thereafter he touched her vagina pressed her breast and he laid down on her. She has further deposed that she has been sexually assaulted. Thereafter, she worn the clothes and came out. At that time PW3 saw PW2. PW3 has also corroborated the evidence of PW2. During the course of cross examination, though she has admitted the fact before the Magistrate that she has deposed as per the say of the mother about the nature of the acts which accused has done on her. Even as could be seen from the statement of the victim recorded under Section 161 of Cr.P.C., she has clearly 16 deposed that after taking her to the house, accused removed his pant and pressed her chest and thereafter he slept on her. She has specifically stated that a penetrative sexual assault has been committed on her. This evidence of PW2 is not corroborated with the evidence of PW6 and Ex.P4. In Ex.P4 the Doctor who examined the victim has opined that there are no recent evidence to suggest that sexual intercourse has been taken place. Under such circumstances, the contention of the learned counsel for the appellant/accused that there is no material evidence to convict the accused for the alleged offences is not acceptable. But however, there is some force in the contention of the learned counsel for the accused that there is no penetrative sexual assault. When there is no penetrative sexual assault as contended by the prosecution, then the provisions of Section 376 of IPC and Section 5(m) of the Act are not attracted. For the purpose of brevity I quote Section 375 of IPC which reads as under:
"375. Rape - A man is said to commit "rape" if he- 17
(a) penetrates his penis, or any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, Under the circumstances falling under any of the following seven descriptions:-
First - Against her will. Secondly - Without her consent. Thirdly - With her consent, when her consent
has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.18
Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under eighteen years of age.
Seventhly - When she is unable to communicate consent.
Explanation 1 - For the purposes of this section, "vagina" shall also include labia majora. Explanation 2 - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal of non-verbal communication, communicates willingness to participate in the specific sexual act:
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Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1 - A medical procedure or intervention shall not constitution rape.
Exception 2 - Sexual procedure or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
So also I am quoting Section 5(m) of the Act which also reads as under:
"5(m) whoever commits penetrative sexual assault on a child below twelve years"
18. Even close reading of Section 5(m) of the Act, it indicates that 'penetrative sexual assault on a minor child who is below 12 years' is essential to attract the said section.
19. On close reading of these two Sections, in order to attract Section 375 of IPC there must be 20 penetrative sexual assault so also under Section 5(m) of the Act. Then only the accused can be convicted for the alleged offence. On close reading of the evidence of PW2 victim, though the evidence is reliable, as could be seen from the statement of PW2 which has been recorded before the Magistrate, she has not specifically stated about the penetration. It also corroborated with Ex.P3 and Ex.P4.
20. In that light, the conviction and sentence passed by the trial Court for the offence punishable under Section 366A, 376 (2)(j) of IPC and Section 5(m) of the Act is not correct. But however, there is evidence to show that the accused/appellant has sexually assaulted minor PW2- the victim, and in that light Section 7 of the Act is going to be attracted. For the purpose of brevity I quote Section 7 of the Act which reads as under:
"7. Sexual Assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch 21 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."
21. As could be seen from the above said Section, if any person sexually assaults and involves physically in contact, without penetration, then he is said to have committed a sexual assault and the said act must be with sexual intention. By going through the evidence of PW2 it clearly goes to show that the accused has touched her vagina, pressed her breast and also he disrobed the victim, removed his clothes and laid on her. That itself is sufficient to attract the provisions of Section 7 of the Act. The trial Court without looking into the said fact has wrongly convicted the accused under Section 376 (2)(j) of IPC and Section 5(m) of the Act. In that light the judgment of the trial Court requires to be modified. But there is evidence to show that accused eloped minor PW-2 from 22 lawful custody of the guardian and committed the offence under Section 7 of the Act.
22. Keeping in view the above said facts and circumstances the appeal is partly allowed. Judgment of conviction and order of sentence passed by the I Additional Sessions and Special Judge, Chikkamagaluru in Spl.C.(PCSOA). No.27/2016 dated 11.04.2018 is set- aside and conviction and sentence is modified as mentioned below:-
Accused is convicted for the offence punishable under Sections 366A of IPC and sentenced to undergo SI for a period of two years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand Only) in default, he shall undergo SI for six months is confirmed. He is also convicted for the offence punishable under Section 8 of Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo imprisonment for a period of 3 years 5 months and 17 days. i.e., the period which he has already 23 undergone and he is also to pay a fine of Rs.30,000/- as ordered by the trial Court, in default of payment of the fine amount, he shall undergo SI for a period of one year. Out of the fine amount, an amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) is ordered to be paid to the victim girl. Trial Court is directed to keep the amount in Fixed Deposit in the name of the victim girl till she attains majority.
Accordingly, sentence is modified to the above extent. The concerned Jail authorities are hereby directed to release the accused forthwith if he is not required in any other case. Sentence must run concurrently and accused is also entitled for set off as per Section 428 of Cr.P.C.
Registry is directed to communicate the operative portion of the judgment to the concerned Jail authorities to release the accused-appellant forthwith, if he is not required in any other case.24
As the main appeal is disposed I.A No. 1/2018 does not survive for consideration. Hence the same is disposed.
Sd/-
JUDGE BVK