Karnataka High Court
Sri. Manohar @ Pamb vs State By on 22 June, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.997 OF 2021
C/w.
CRIMINAL APPEAL No.1996 OF 2019
IN CRL.A. NO.997 OF 2021:
BETWEEN:
DANIEL KUMAR @ DANIEL,
S/O. JAMES,
AGED ABOUT 26 YEARS,
R/AT NO.101, BEERAPPA BUILDING,
7TH CROSS, CHANNASANDRA,
KALKERE MAIN ROAD, KALKERE,
BENGALURU - 560 067. ... APPELLANT
[BY SRI. SREENIVASA KUMAR D.G., AND
SRI. MOHANKUMAR D., ADVOCATES]
AND:
THE STATE OF KARNATAKA
BY PULIKESHI NAGAR POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 01. ... RESPONDENT
[BY SRI. KRISHNA KUMAR K.K., HCGP]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE PASSED BY THE LEARNED LIII ADDITIONAL CITY
CILVIL AND SESSIONS SPECIAL JUDGE, BENGALURU IN SPECIAL
C.C. NO.502/2016 DATED 02.11.2019, WHO HAS CONVICTED THE
APPELLANT FOR THE OFFENCSES PUNISHABLE UNDER SECTION
376 OF IPC, AND SECTION 3 READ WITH 4 OF POCSO ACT, 2012
AND SENTENCED TO RIGOROUS IMPRISONMENT OF 10 YEARS AND
2
FINE OF `10,000/- IS IMPOSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 376 OF IPC AND SENTENCE OF 10 YEARS OF
RIGOROUS IMPRISONMENT AND FINE OF `10,000/- IS IMPOSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 3 R/W 4 OF
POCSO ACT AND TO ACQUIT THE APPELLANT.
***
IN CRL.A. NO.1996 OF 2019:
BETWEEN:
SRI. MANOHAR @ PAMB,
S/O. LATE VENKATESH,
AGED ABOUT 23 YEARS,
R/AT NO.10, 3RD CROSS,
A.K. COLONY, NEAR BUS STOP,
DODDABANASWADI,
BENGALURU - 560 043. ... APPELLANT
[BY SRI. C.H. SRINIVAS, ADVOCATE]
AND:
STATE BY
PULIKESHINAGAR POLICE STATION,
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001. ... RESPONDENT
[BY SRI. KRISHNA KUMAR K.K., HCGP]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED
02.11.2019/04.11.2019 PASSED IN SPL. C.C. No.502/2016 ON THE
FILE OF THE HON'BLE LIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-54) FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366-A OF IPC, PERUSE THE SAME AND SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE AND
SET THE APPELLANT/ACCUSED AT LIBERTY.
***
THESE CRIMINAL APPEALS COMING ON FOR FINAL
DISPOSAL, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
These appeals are directed against the Judgment and Order dated 02.11.2019/04.11.2019 passed by the Court of LIII Additional City Civil and Sessions Special Judge, Bengaluru in Special C.C. No.502/2016.
2. Vide impugned Judgment, the learned Sessions Judge has convicted accused No.1 for offence under Section 376 of IPC r/w Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act' for short] and accused No.2 for offence under Section 366A of IPC.
Accused No.1 has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `10,000/- for offence punishable under Section 376 of IPC, in default, to undergo simple imprisonment for 3 years.
He has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `10,000/- for offence punishable under Sections 3 r/w 4 of the POCSO Act, in default, to undergo imprisonment for 3 years. 4
Accused No.2 has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- for offence punishable under Section 366-A of IPC, in default, to undergo imprisonment for 3 years.
3. Heard the learned counsel for appellants and the learned High Court Government Pleader for respondent/State and perused the evidence and material on record.
4. Brief facts of the prosecution case are that, accused No.1 is a friend of the victim [P.W.3]. On 05.09.2016, the victim had visited the house of her aunt in Frazer Town on the occasion of Ganesha Festival. Accused No.1 invited her to come to his house for celebrating his birthday. When the victim informed him that she has no money for autorickshaw, accused No.1 sent his friend i.e, accused No.2 near St. Aloysius College, Frazer Town and asked the victim to come near the said college. Accused No.2 took the victim on a Pulsor two wheeler bearing reg. No.KA-53/EL-3077 at about 2.30 p.m. and dropped her in the house of accused No.1. At about 5.15 p.m., both 5 accused Nos.1 and 2 brought liquor. Accused No.1 sent back accused No.2. He made the victim to drink liquor and when she was in an intoxication condition, committed rape on her. Thereafter at about 9.15 p.m., accused No.1 secured accused No.2 to his house and both of them dropped the victim near her house in the motorcycle.
In order to bring home the guilt of the accused, the prosecution got examined P.Ws.1 to 13 and got marked Exs.P1 to 20 and M.Os.1 to 7.
The trial Court after appreciating the oral and documentary evidence on record, convicted and sentenced the accused for the charged offences. Hence, these appeals.
5. P.Ws.1 and 2 are the witnesses to the spot mahazar-Ex.P1. Both the witnesses have turned hostile.
6. P.W.3 is the victim who lodged complaint as per Ex.P5. P.Ws.4 and 5 are the parents and P.W.6 is the brother-in-law of the victim girl. The said witnesses have 6 not supported the case of prosecution and they have turned hostile.
7. P.W.7 is the doctor, who examined the victim and issued the report as per Ex.P9.
8. P.W.8 is the panch-witness to the seizure of motorcycle under a mahazar-Ex.P10, but he has not supported the case of prosecution. P.W.9 is another panch-witness for the seizure of motorcycle. Exs.P11 to 14 are the photographs of the motorcycle.
9. P.W.10 is another doctor at St. Philomena's Hospital. He has issued a letter to the Police as per Ex.P17. He has sent the victim girl to the hospital for further examination.
10. P.W.11 is the Investigation Officer. He has filed the charge-sheet on completion of investigation.
11. P.W.12 is the PSI of Pulikeshinagara Police Station. After the case was transferred from Viveknagara Police Station on the point of jurisdiction, he registered a case.
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12. P.W.13 is the Police Inspector at Viveknagara Police Station, who received the complaint Ex.P5 from the victim on 06.09.2016 at about 7.30 a.m. on the point of jurisdiction, he transferred the case to Pulikeshinagara Police Station.
13. The prosecution has mainly relied on the evidence of the victim [P.W.3], her parents and brother-in- law namely P.Ws.4 to 6 as well as the medical evidence. In the chief-examination, the victim has reiterated the complaint averments stating that on 05.09.2016 she had visited the house of her aunt on the occasion of Ganesha Festival. When she was in the said house, at about 1.00 p.m., accused No.1 called her to come to his house to celebrate his birthday telling that even her friend by name Anusha is also coming to his house. She has stated that accused No.1 informed her that accused No.2 will pickup her and asked her to come near St. Aloysius College. As accused No.1 insisted to accompany accused No.2, she went along with accused No.2 on his two wheeler to the house of accused No.1. After dropping her, accused No.2 8 went away. Thereafter, accused Nos.1 and 2 and another person came to the house and they had brought drinks. She has further stated that accused No.1 mixed rum in wine and made her to drink. After drinking, she had giddiness and at about 6.00 p.m., when she gained consciousness, she was naked. When she started weeping, accused No.1 kicked her and also burnt with a cigarette butt on her left hand. Thereafter, accused No.1 brought her to the bus stand in the motorcycle and left her, from where few persons took her to her house.
14. The learned counsel appearing for accused No.1 would vehemently contend that the victim girl had given a complete go by to the prosecution case in the cross- examination and therefore her evidence cannot be accepted as trustworthy. He has contended that merely on the basis of the chief-examination, the accused cannot be convicted since in the cross-examination the victim has denied the incident. He has also contended that the evidence of the victim [P.W.3] is not corroborated by any 9 other witnesses and therefore submits that accused No.1 is entitled for benefit of doubt.
15. The learned counsel appearing for accused No.2 has contended that even if the evidence of victim [P.W.3] in the chief-examination is accepted, then it cannot be said that accused No.2 had any knowledge that by dropping her to the house of accused No.1, he would subject her to any sort of sexual assault. He contends that there is no inducement on the part of accused No.2 and the ingredients of Section 366-A of IPC are not made out and therefore contends that the trial Court was not proper in convicting him for the said offence.
16. The learned High Court Government Pleader has contended that the victim in her chief-examination has corroborated the complaint averments and she has also admitted that she has given her statement under Section 164 of Cr.P.C. as per Ex.P4. He contends that merely because she has turned hostile in the cross-examination, but in the facts and circumstances of the case, wherein the victim's evidence is corroborated by medical evidence, the 10 trial Court has rightly believed the prosecution case. He therefore contends that there is no illegality committed by the trial Court and accordingly, seeks to dismiss the appeals.
17. It is the specific case of the prosecution that the victim and accused No.1 were friends. On 05.09.2016, the victim had gone to the house of her aunt in Frazer Town to celebrate Ganesha Festival. Accused No.1 asked her to visit his house and sent accused No.2 to pick her up. Thereafter, accused No.2 took the victim to the house of accused No.1 on a motorcycle. Further, both accused Nos.1 and 2 brought liquor/drinks to the house of accused No.1. Accused No.1 made the victim to consume liquor and when she became unconscious, he committed rape on her.
18. The incident has taken place on 05.09.2016 between 5.00 p.m. and 9.00 p.m. P.W.1 in her complaint has stated that after the incident, accused Nos.1 and 2 dropped her at the bus stand near her house at about 11 10.15 p.m. She then narrated the entire incident to her mother and sister and thereafter, lodged the complaint.
19. P.W.13 is the Police Inspector, who received the complaint-Ex.P5 from P.W.3 on 06.09.2016 at 7.30 a.m. and registered a case. Thereafter, he went to the house of accused No.1 and prepared spot-mahazar as per Ex.P3. The victim was sent for medical examination.
20. P.W.10 has deposed that on 06.09.2016, the victim had come to the hospital with the history of sexual assault. She was examined by a Lady Medical Officer and for further examination, she was sent to Government Hospital.
21. P.W.7 examined the victim on 06.09.2016 and he has issued the certificate which is marked as Ex.P9.
22. P.W.11, the Investigation Officer has stated that on 21.09.2016, he requested the learned Magistrate to record the statement of the victim. On 24.09.2016, the victim was produced before the Court wherein her statement was recorded under Section 164 of Cr.P.C. 12 Further, he has stated that he collected the Age Certificate of the victim from the school, which is marked as Ex.P18.
23. In her evidence, the victim [P.W.3] has stated that when she asked accused No.1 as to who will take her to his house, at that time accused No.1 informed her that he will send accused No.2. Thereafter, accused No.2 came on a two wheeler near St. Aloysius College from where she was taken to the house of accused No.1. She has further stated that after dropping her to the house of accused No.1, accused No.2 went away. Thereafter, once again accused Nos.1 and 2 came along with another person and they had brought drinks. Once again, accused No.1 sent accused No.2 to bring chips and thereafter accused No.2 and another person went away.
24. A careful perusal of the evidence of P.W.3 would disclose that only after she asked accused No.1 as to who will drop her to his house, accused No.1 told her that he will send accused No.2. Thereafter, she went near St. Aloysius College, from where accused No.2 picked her and dropped her to the house of accused No.1. This evidence 13 of P.W.3 has to be appreciated in the light of her statement made in the complaint that she informed accused No.1 that she has no money for the autorickshaw to come to his house. From the above evidence itself it cannot be said that there was any inducement on the part of accused No.2 to take the victim to the house of accused No.1. From the material on record, this Court cannot come to a conclusion that accused No.2 had any knowledge that by dropping the victim to the house of accused No.1, she would be forced to illicit intercourse. Admittedly, when the alleged sexual assault took place, accused No.2 was not present in the house. The victim has specifically stated that after she was dropped in the house of accused No.1, the said accused No.1 sent away accused No.2 and another person. Though it is stated in Ex.P5-complaint that after the incident, both accused Nos.1 and 2 dropped the victim near her house, perusal of her deposition before the Court shows that it was accused No.1 who dropped the victim near the bus stand on a two wheeler. The victim has not specifically stated before the Court that even accused No.2 was also present after the incident and she was dropped by both 14 accused Nos.1 and 2 near her house. Hence, it cannot be held that prosecution has established the guilt of accused No.2 beyond reasonable doubt for an offence punishable under Section 366-A of IPC.
25. The learned counsel for the appellants has contended that the evidence of the victim [P.W.3] is not corroborated by other witnesses and that she has completely denied the prosecution case in her cross- examination and therefore her evidence is incomplete and the same cannot be relied upon to convict the accused.
26. P.W.4 is the victim's father. Though he has turned hostile, in the cross-examination conducted by the Public Prosecutor he has admitted that on 05.09.2016, his daughter went to the house of one Smt. Manju and her phone was switched off and she returned at about 10.15 p.m. He has stated that his daughter was given treatment at St. Philomena's Hospital.
27. From the cross-examination of P.W.4, it can be gathered that on 05.09.2016 his daughter had gone to the 15 house of Smt. Manju and she returned about 10.15 p.m., which would corroborate the version of P.W.1 that she had gone to the house of her aunt on 05.09.2016 and thereafter, she was dropped near her house by accused No.1 at about 10.00 p.m.
28. In the cross-examination, the victim has denied the case of the prosecution stating that she do not know accused Nos.1 and 2 and on 05.09.2016, she had not gone to the house of her aunt. She has denied the entire incident in question.
29. In the case of Rajesh Yadav and Another Vs. State of U.P. reported in 2022 SCC OnLine SC 150, the Hon'ble Apex Court in Para No.21 has held that:
"21. The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first 16 category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the Court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
30. The victim has supported the case of prosecution in her chief-examination conducted on 19.12.2017. Thereafter, on 29.12.2017, when she was again examined and in the cross-examination she has turned hostile and resiled from her previous statement. In the said circumstances, to arrive at a correct conclusion, it is necessary to look into other evidence.
31. The victim was subjected to medical examination on the very next day by P.W.7. He has stated that the victim narrated to him about the incident and when he examined her, he found that there was certain 17 injuries on her private part and hymen was not intact. Further, nail marks were also seen on her chest and in this regard, he has issued report as per Ex.P9. It is also relevant to see that the victim's statement under Section 164 of Cr.P.C. was recorded as per Ex.P4 by the learned Magistrate. When the said statement was confronted to the victim, she has admitted that she had given such a statement before the Court and admitted her signature. In view of the same and having assessed the evidence and material on record, this Court is of the considered view that the case of the prosecution in so far as accused No.1 is concerned cannot be doubted.
32. The prosecution has got marked Ex.P18 i.e., Study Certificate of the victim, wherein her date of birth is mentioned as 27.06.2000. The defence has not seriously disputed the age of the victim. In the cross-examination, the victim has stated that in the year 2016, she was studying in X Standard and then she did Diploma at St. Joseph's College. If the date of birth of the victim 18 mentioned in Ex.P.18 is taken into consideration, the victim was a minor as on the date of commission of offence.
33. From the evidence and material on record, the prosecution has been able to establish the guilt of the accused for the charged offence against accused No.1. However, the evidence and material on record is not sufficient to establish the guilt of accused No.2 beyond reasonable doubt.
34. The trial Court has convicted accused No.1 for the offence punishable under Section 376 of IPC as well as under Sections 3 r/w 4 of the POCSO Act. In view of Section 42 of the POCSO Act, sentencing the accused for both the offence would not be proper. However, the trial Court has ordered the sentence to run concurrently.
35. The trial Court has sentenced the accused to undergo rigorous imprisonment for 10 years with fine and default sentence. The learned Sessions Judge has proceeded to pass sentence of 10 years rigorous imprisonment observing that the punishment prescribed 19 for offence punishable under Section 376 of IPC and Sections 3 r/w 4 of the POCSO Act is for a term which shall not be less than 10 years. It is relevant to mention that the incident took place on 05.09.2016. As on the date of commission of the offence, minimum sentence for offence punishable under Section 376 of IPC as well as under
Section 4 of the POCSO Act was 7 years.
36. Accused No.1 was aged about 21 years at the time of incident. He was arrested on 14.09.2016 and since then he is in custody. The learned counsel for accused No.1 submits that the victim is already married. Considering the overall facts and circumstances of the case, the sentence imposed against accused No.1 can be modified. Hence, the following:
ORDER Criminal Appeal No.997/2021 filed by accused No.1 is partly allowed.
The conviction of accused No.1 for offence punishable under Section 376 of IPC and Sections 3 r/w 4 20 of the POCSO Act passed by the Court of the LII Additional City Civil and Sessions Special Judge, Bengaluru in Special C.C. No.502/2016 dated 02.11.2019/04.11.2019 is hereby confirmed.
The sentence imposed is hereby modified.
Accused No.1 is sentenced to undergo rigorous imprisonment for a period of 7 [seven] years and to pay a fine of `10,000/- [Rupees Ten Thousand Only] for offence punishable under Sections 3 r/w 4 of the POCSO Act and in default of payment of fine, to further undergo imprisonment for 3 [years] years. No separate sentence is passed for the offence under Section 376 of IPC.
Accused No.1 is entitled for set off under Section 428 of Cr.P.C for the period of detention he has already undergone in judicial custody.
Criminal Appeal No.1996/2019 filed by accused No.2 is allowed.21
The Judgment and Order of conviction and sentence dated 02.11.2019/04.11.2019 passed against accused No.2 for offence punishable under Section 366-A of IPC is set aside. His bail bond stands cancelled.
Sd/-
JUDGE Ksm*