Karnataka High Court
Sri Immu @ Imran vs State Of Karnataka on 2 August, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2 N D DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.1739 OF 2018
BETWEEN:
Sri Immu @ Imran
S/o Late Abdul Majid Sab
Aged about 25 years
Car Driver
R/o Sig anamane Villag e
B.R. Project
Bhad ravathi-577 245
Shivamog a Dist.
...Appellant
(By Smt. Haleema Ameen, Advocate)
AND:
State of Karnataka
By Rural Police Station
Bhad ravathi
Rep. by State Public Prosecutor
High Court of Karnataka
Beng aluru-560 001.
...Respondent
(By Sri K. Nag eshwarapp a, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. p raying to set aside the ord er of conviction
and sentence dated 29.06.2018 passed by the
I Additional District and Sessions Judge and Sp ecial
Judge, Shivamog ga, in S.C. No.3/2015 convicting the
app ellant/accused for the offence p/u/s 366, 506 and
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354-A of IPC and Section 9(1), (m) read with Section
10 of POCSO Act.
This Criminal Appeal coming on for final hearing
this d ay, the Court d elivered the following:
ORDER
This appeal is filed by the accused. The I Additional District and Sessions Judge and Special Judge under Protection of Children from Sexual Offences Act, Shivamogga, by her judgment dated 29.6.2018 held the appellant guilty of the offences punishable under sections 366, 506, 354A of IPC and sections 9(l) and (m) read with section 10 of Protection of Children from Sexual Offences Act ('POCSO' for short) and sentenced him to rigorous imprisonment for seven years and fine of Rs.50,000/- with default sentence of eight months for the offence under section 366; rigorous imprisonment for two years for the offence under section 506; and rigorous imprisonment for seven years and fine of Rs.50,000/- with a default sentence of eight months for the offence under :: 3 ::
section 9(l)and (m) read with section 10 of POCSO Act. All the sentences were made to run concurrently. Out of the fine amount, Rs.90,000/- was ordered to be paid to the victim as compensation.
2. FIR was registered on 7.11.2014. The prosecution case is that one month prior to the date of registration of FIR, the appellant enticed PW.2, the victim girl by giving chocolate when she had been to a shop, took her to a dilapidated house and committed sexual assault on her. He repeated the same act several times by taking the girl to the same place and making her unconscious. He threatened to kill her by showing a knife in case she disclosed the same to anybody and that he also caused an injury on her right wrist. The investigation led to filing of charge sheet for the offences under sections 366A, 376(2)(i),(n), 506 of IPC and sections 4,5 (l), (m) :: 4 ::
and 6 of POCSO Act. The trial court in the first instance framed the charges for sections 366A, 376 and 506 IPC and sections 4 and 5(l) and (m) read with section 6 of POCSO Act. Later on the charge was reframed for the offence under section 366 instead of section 366A of IPC.
3. The trial court has recorded findings that the evidence of PW2 is reliable. She being the victim has narrated the incident in her own words.
Minor discrepancies may be there in her evidence, but they do not go to the root of the prosecution case. Her evidence clearly discloses as to how she was sexually abused by the accused continuously. Her testimony finds corroboration from the medical evidence. PW5 is the doctor who examined PW2. Though PW5 has stated that hymen was not ruptured, her further evidence shows that PW2 might have been subjected to intercourse. It is specifically observed by the trial court that in most :: 5 ::
instances, a pre pubertal child will not suffer a full penetrative act into vagina and the penis will be placed sideways into the genital area across the opening of the vagina, leaving no physical evidence of penetration. If full penetration does occur in a very young pre-pubertal child, she will probably suffer severe genital injury. Probably the trial court might have extracted the said observation found somewhere, but what appears is that since PW2 was a girl of 11 years, she might not have attained puberty and the extracted observations might apply to her case. Therefore it is the opinion of the trial court that evidence of PW5 supports the testimony of PW2.
3.1. In regard to the evidence of PW1, it is held by the trial court that as a mother, she has deposed what she came to know from her daughter and how her daughter used to behave before she revealed about sexual assault on her by the :: 6 ::
accused. In this view, evidence of PW1 is also believable. PW6 who was the teacher in the school has also deposed that PW2 fell down due to giddiness when all the students had gathered for prayer and thereafter she sent words for PW1. After PW1 and others came, PW2 revealed about sexual assault on her in the presence of all of them. In this view, PW6 has also supported the prosecution case. With regard to mahazar it is the finding of the trial court that drawing up of spot mahazar as per Ex.P2 is established by PW8. Accused gave confession statement which led to discovery of two material objects MO1 and MO2 at his instance. Therefore for all these reasons the prosecution case has been established.
3.2. Appreciating the evidence, the conclusion of the trial court is that the offences under section 366 and 506 IPC and the offence under section 9 (l) and (m) read with section 10 of :: 7 ::
the POCSO Act are established. The trial court has also drawn presumption according to section 29 of the POCSO Act.
4. Assailing the findings of the trial court, learned counsel for the appellant argued that the trial court has committed a serious error in holding the accused guilty of the offences when there is serious infirmity in the testimonies of PW1, 2 and
6. PW2 has clearly admitted that she was tutored to give evidence in the court. This itself is sufficient to draw an inference that her evidence is untrustworthy. If according to her she was feeling giddiness everyday for about a month, PW6 has given evidence that PW2 fell down during prayer on 6.11.2014 due to giddiness. PW1 has stated that she came to know that her daughter had fallen down during prayer time in the school.
Therefore in this regard the evidence is inconsistent.
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4.1. She further argued that with regard to the injury found on the wrist of PW2, PW1 has stated that accused had inflicted an injury with a wire, but PW2 has stated that accused caused injury using a knife. PW5, the doctor, has stated that according to the history given by PW2 the injury was caused when the accused kept a hot stick on her hand. Therefore the evidence is so inconsistent and thereby the testimony of PW2 does not find corroboration neither by PW1 nor PW2. With regard to allegation of sexual assault, the clear evidence of PW5 is that hymen of PW2 was intact, and it ruled out possibility of accused committing rape on PW2. There were no injuries near the genital organ and this is another important aspect which makes the testimony of PW2 unbelievable. With regard to seizure of MO1 and MO2, the evidence of the panch witness, i.e. PW3 cannot be believed because he was a person :: 9 ::
known to the family of PW1. In view of all these inconsistencies and discrepancies in the evidence, the trial court should not have convicted the accused. Therefore she argued that this appeal deserves to be allowed.
5. Learned Government Pleader argued that PW2 was a minor girl of 11 years at the time of incident. She has fully established the prosecution case. Her evidence finds corroboration from the medical evidence given by PW5. Though PW5 has stated that hymen was intact, she has also given evidence that possibly PW2 might have been sexually abused. The fact of PW2 feeling dizziness is proved, it does not matter even if there is some inconsistency in the evidence in this regard. It is not material to shake the entire prosecution case.
Added to this, accused himself led the investigation officer to the place where he had hidden the knife and handkerchief as per MO1 and :: 10 ::
MO2 respectively and produced the same in presence of the independent witness, PW3. Seizure is established by PW3. PW1 and 5 have also given evidence, their evidence cannot be disbelieved. Since the trial court has properly appreciated the evidence for holding the accused guilty, the appeal deserves to be dismissed.
6. I have perused the entire evidence and considered the arguments. If the evidence is re-
appreciated, it may be stated that the trial court has not fallen in error in appreciating the evidence. The evidence of PW2, the victim girl, shows that, she being a girl of tender age gave evidence in her own words. Her evidence clearly discloses as to how she used to be lured by the accused whenever she went to a shop situated nearby her uncle's house and what he did by taking her to a dilapidated house. She did not reveal the incident for about a month because of :: 11 ::
threat given to her by the accused. Of course she might have stated that she used to fall down every day during prayer time and the same is not corroborated by PW6. According to PW6, it was on 6.11.2014 that she saw PW2 having fallen down due to giddiness during prayer time. The discrepancy pointed out by the appellant's counsel is not so significant. The fact remains that only when PW2 fell down in the school, the teacher could notice and send a word to the mother of PW2. It was in the presence of PW1, PW6 and other teachers that PW2 revealed as to how she was subjected to sexual assault by the accused.
Therefore to this extent there is corroboration to the testimony of PW2 by PW1 and 6.
7. In Ex.P11, the report given by PW5 after examining PW2, it is written that there was a scar mark on the medial aspect of wrist and that according to the patient, i.e., PW2, after the :: 12 ::
intercourse, in order to threaten her, the accused touched her wrist with a burning stick. But PW2 has stated in her evidence that the accused caused that injury using a knife and PW1 has stated that she came to know from her daughter that the accused had caused that injury with a wire. No doubt with regard to manner of causing injury on the wrist, the evidence is some what shaky, but it is not so significant to doubt the entire prosecution case. Whether the injury was caused using a hot stick or a wire or a knife, it is not important. The doctor noticed the injury and that both PW1 and PW2 speak about the same. This is sufficient to believe the testimony of PW2.
8. PW2 has stated that accused committed rape, but the evidence of PW5 is that hymen was intact. Hymen being intact may no doubt lead to an inference that probably sexual intercourse might not have taken place, but it is not a :: 13 ::
deciding factor always. It is also the evidence of PW5 that hymen was thick and elastic and it easily admitted index finger without pain. Her evidence is that PW2 might have been subjected to sexual assault. If the testimony of PW2 is again subjected to scrutiny, it appears that she has given a vivid account of the incident. She has clearly stated as to how the accused enticed her and abused her sexually. Ex.P15 is the statement given by the girl before the Magistrate under section 164 Cr.P.C. At that time also she clearly revealed the incident. Cross-examination of PW2 is not effective, she has not been discredited at all.
9. It was much argued by learned counsel for the appellant that PW2 had been tutored as is evident from her admission in the cross- examination. Indeed her one answer in the cross- examination gives an impression that probably she :: 14 ::
might have been tutored before she was asked to depose in the court. But, if a tender aged girl is trained to depose in the court about the incident to which she was the victim, it is not tutoring rather it is aiding a witness to recollect the facts. It is a ground reality that every witness who is conversant with the facts requires a certain degree of training before he is put to witness box. Training is necessary irrespective of age, and it is more required when the witnesses are illiterates. In fact every seasoned advocate trains the witnesses before they are examined in the court. Tutoring takes a different meaning, it means training a witness to speak to the facts which he does not know, or sometimes training a witness to speak more than what he actually knows. Planted witnesses are tutored. But training a witness to recollect what he is aware of relating to the facts of a particular case does not amount to tutoring.
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10. In this case PW2 is the victim and she is aware of the facts. If she had been trained to depose by recollecting her memory, it cannot be called tutoring.
11. Defence is that there existed enmity between the family of PW1 and the accused. This is just a defence without any basis. Moreover on the basis of confession statement given by accused, the investigation officer was able to recover a knife and handkerchief by drawing mahazar as per Ex.P3. Ex.P13 is a part of confession statement leading to discovery of MO1 and MO2. Seizure of MO1 and MO2 is proved by PW3 and he has not been impeached in the cross- examination. In this view, the inconsistency in evidence that the learned counsel pointed out during arguments does not shake the prosecution :: 16 ::
case in any way. The witnesses cannot be expected to have a photographic memory. Discrepancy is bound to occur. Minor discrepancies cannot be given importance. Therefore I do not find any infirmity in the findings of the trial court.
12. In the light of the medical evidence and the testimony of PW2, the trial court's conclusion to convict the accused for the offences under section 9 (l) and (m) read with section 10 of POCSO Act instead of the offence under sections 4 and 5(l) and (m) read with section 6 of POCSO Act, along with offences under sections 366 and 506 IPC is proper in all respects. I do not find any ground to reverse the judgment of conviction.
13. However, I find a case to reduce the sentence. Learned counsel for the appellant argued that in case this court would come to conclusion that the judgment of the trial court :: 17 ::
cannot be set aside, the imprisonment period imposed on him be reduced to the minimum prescribed under the statute. On the date of incident his age was 25 years and he was earning livelihood for the family. Still he is young. His family needs his support and therefore the sentence is required to be modified.
14. I am of the opinion that having regard to the circumstances pleaded by the learned counsel for the appellant, the sentence may be modified. The trial court has imposed imprisonment for seven years for each of the offences under section 366 IPC and sections 9(l) and (m) read with section 10 of POCSO Act. For the offence under section 366 IPC, the maximum sentence of imprisonment may extend up to ten years, and according to section 10 of POCSO Act, the minimum sentence of imprisonment should not be less than five years. In view of the sentencing :: 18 ::
structures found in these two sections, as the appellant has already spent more than five years in the jail, for the offences under section 366 IPC and section 9 (l) and (m) of POCSO Act, the sentence of imprisonment is reduced to five years by retaining the fine imposed by the trial court for these two offences. The sentence imposed by the trial court for the offence under section 506 IPC is not altered, it remains the same. The sentence for all these offences is made to run concurrently. Sentence of fine imposed by the trial court for all the offences and default sentence periods are also not modified. As directed by the trial court, PW2 is entitled to be compensated from the fine amount. The accused shall be set at liberty in connection with this case if he has already served sentence of five years including the period of pre- conviction imprisonment period and if he has also served default sentence imprisonment for all the :: 19 ::
offences in case of his failure to pay the fine amount.
Sd/-
JUDGE ckl