Karnataka High Court
Sundara vs State Of Karnataka on 23 November, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.795/2015
BETWEEN:
SUNDARA
S/O LATE KARIYA
AGED 52 YEARS,
RESIDING AT
KALLADI HOUSE, KUPPEPADAVU POST,
KELINJAR VILLAGE,MANGALORE TALUK,
D.K. DISTRICT-574201.
...APPELLANT
(BY SRI N. R. KRISHNAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY
POLICE INSPECTOR
BAJPE POLICE STATION
BAJPE, MANGALORE,
DK DISTRICT-574201.
....RESPONDENT
(BY SRI S. RACHAIAH, HIGH COURT GOVERNMENT PLEADER)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
21.11.2014 PASSED IN S.C. No.63/2013 ON THE FILE OF THE
PRINCIPAL SESSIONS JUDGE/SPECIAL JUDGE, D.K. MANGALORE
AND ACQUIT THE APPELLANT FROM THE ALLEGED CHARGE, IN THE
INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-accused filed the present Criminal Appeal against the impugned judgment and order of conviction dated 21.11.2014 made in Special Case No.63/2013 on the file of the Principal Sessions Judge/ Special Judge, Dakshina Kannada, Mangaluru, sentencing the accused to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- in default to pay the fine, to undergo simple imprisonment for one month for the offence punishable under Section 448 of the Indian Penal Code; to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/- and in default to pay the fine, to undergo simple imprisonment for three months for the offence punishable under Section 366-A of the Indian Penal Code; and to undergo 3 imprisonment for life and to pay fine of Rs.50,000/-, and in default to pay the fine, to undergo simple imprisonment for one year for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
2. It is the case of the prosecution that, on 11.06.2013, 12.06.2013 and 13.06.2013 the accused has committed criminal trespass by entering into the dwelling house of the victim girl aged about 16 years, situated in a place called Kalladi, Kuppepadavu of Kelinjar village, Mangaluru Taluk, after her family members left the house for coolie work, with an intent to commit rape on the said minor girl. Again on 10.07.2013 and 11.07.2013, the accused induced the victim girl to go from her house to the house of the accused situated in Kalladi, Kuppepadavu of Kelinjar village with an intent to force or seduce her to have illicit intercourse with him and thereafter, he had sexual intercourse with her in the bath room of his house. On the aforesaid dates, the accused forcibly had sexual intercourse with the victim and committed an offence of rape by which she became pregnant and thereby committed an offence of 'aggravated penetrative sexual assault' and by such acts, the 4 accused has committed offences punishable under Sections 448, 366-A and 376 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012.
3. The learned Sessions Judge/Special Judge, framed the Charge, read over and explained it to the accused who pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined sixteen witnesses as P.Ws.1 to 16 and got marked Exs.P.1 to P.13 and identified the material objects-M.Os.1 to 7.
5. After completion of the evidence of prosecution witnesses, the statement of the accused was recorded by the learned Sessions Judge as contemplated under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating evidence adduced against him. The accused also filed additional statement under Section 313(5) of the Code of Criminal Procedure, stating that, "the parents of the victim girl were not in good terms with him and they were having ill will against him, as he had constructed a new house about two years back after obtaining grant from the 5 Government. There was dispute between the parents of the victim girl and the accused in connection with construction of a wall by the accused near the house of parents of victim girl. The prosecution witnesses viz., C.W.5-Vinod, C.W.6-Jayashree, C.W.7-Vijaya and some others who are the members of Hindu Seva Samithi were having ill will against him as he had not permitted them to perform Sathyanarayana Pooja in the school ground when he was the Chairman of Kalladi Higher Primary School Development Committee. Due to the ill will, he was falsely implicated in the matter, even though he had not committed any offence as alleged". He has further stated that, "P.W.1 is mentally ill, and the members of the Hindu Seva Samithi in collusion with P.Ws.2 and 3 filed false complaint against him taking advantage of the mental condition of P.W.1".
6. Based on the oral and documentary evidence on record, the learned Sessions Judge, formulated five points for consideration. After consideration, the learned Sessions Judge recorded a finding that, the prosecution proved beyond reasonable doubt that on 11.06.2013, 12.06.2013 and 13.06.2013 the accused committed 6 criminal trespass by entering into the dwelling house of the victim girl situated at Kalladi of Kelinjar village when her family members left the house for work, with an intent to commit rape on the minor girl and thereby committed an offence punishable under Section 448 of the Indian Penal Code; the prosecution proved beyond reasonable doubt that during the aforesaid dates in the house of the victim girl, and on 10.07.2013 and 11.07.2013 in his house at Kalladi of Kelinjar village, the accused forcibly had sexual intercourse with the victim minor girl aged 16 years and thereby committed an offence of rape punishable under Section 376 of the Indian Penal Code; that on 10.07.2013 and 11.07.2013, the accused induced the victim minor girl to go from her house to his house with an intent to force or seduce her to have illicit intercourse with him and thereafter he had sexual intercourse with her in the bathroom of his house and thereby committed an offence punishable under Section 366-A of the Indian Penal Code; that on the aforesaid dates, the accused forcibly committed rape of the minor girl aged 16 years and thereby committed an offence of 'penetrative sexual assault' punishable under Section 4 of the 7 Protection of Children from Sexual Offences Act, 2012; and further the prosecution proved beyond reasonable doubt that on the aforesaid dates and places, the accused, taking advantage of mental and physical disability of the minor girl committed penetrative sexual assault and as a result of such sexual assault, the victim girl became pregnant and thereby, the accused has committed an offence of 'aggravated penetrative sexual assault' punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment and order convicting the accused for the offences stated supra. Therefore, the present Criminal Appeal is filed by the accused/appellant.
7. We have heard the learned counsel for the parties.
8. Sri N.R.Krishnappa, learned counsel for the appellant-accused contended with vehemence that the impugned judgment and order of conviction passed by the learned Sessions Judge convicting the accused for the offences punishable under Sections 448, 376, 366- A of the Indian Penal Code and Sections 4 and 6 of the Protection of 8 Children from Sexual Offences Act, 2012, is erroneous and contrary to the material on record and the same cannot be sustained. He further contended that there is no complaint to the effect that the accused has induced the victim minor girl to go from any place or to do any act with intent to force or seduce her to have illicit intercourse with another person, as provided under Section 366A of the Indian Penal Code. Therefore, the punishment imposed by the learned Sessions Judge convicting the accused for the offence punishable under Section 366A of the Indian Penal Code, is without any basis and cannot be sustained. The learned Sessions Judge failed to notice that P.W.8-Dr.Sunil Kumar working as Medical Officer in Wenlock Hospital, Mangaluru, has specifically stated that, he examined the victim minor girl and she was found to have the IQ of 32 and was having severe mental retardation with mental disability of 90% and she was having the understanding capacity of a child aged between 5 to 6 years. Without considering the said aspect, the learned Sessions Judge has proceeded to convict the accused.
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9. Learned counsel for the accused-appellant further contended that P.W.6-Dr.Jacintha D'souza in her evidence has deposed that, on examination of the victim girl she found that victim girl was mentally retarded and therefore, the consent of her mother was obtained in order to further examine her. The learned Sessions Judge erred in believing the version of the prosecutrix who is of unsound mind. Without any corroboration and without any other material witness on record, the learned Sessions Judge ought not to have convicted the accused. He further contended that, P.W.1- victim girl in her cross-examination has deposed that, "she is stating before the Court as tutored by the police and her mother. She has further deposed that before recording her statement as per Ex.P.2, the police took her and her mother-P.W.2 to the Court and they had tutored her as to what she has to depose before the Court. Accordingly, she has deposed before the Court". As such, she has not stated the date and month of the incident, but her mother has stated the date and month of the incident. The victim girl has further stated that, 'it is true to suggest that she does not know as to what the police have written. Her mother told her that 10 today she has to give evidence before the Court and accordingly, she has given her evidence'. The evidence of P.Ws.1 and 2 is contradictory. Without considering the same, the learned Sessions Judge erroneously proceeded to pass the impugned Judgment and Order of Conviction.
10. Learned counsel for the appellant further contended that though it is alleged that the accused had forcible sexual intercourse on the victim girl on five different dates, there is no evidence to the effect that the victim girl raised alarm to escape from the clutches of the accused. Therefore, it was a consensual sex. He further contended that the learned Sessions Judge failed to notice that there is delay of two months in filing the FIR, which is fatal to the case of the prosecution. The FIR depicts that the incident took place on different dates between 01.06.2013 and 15.07.2013, but the FIR is filed on 23.08.2013. There is delay of almost two months in filing the FIR. Absolutely no explanation is offered by the prosecution regarding the delay in filing the complaint. Therefore, he sought to allow the Criminal Appeal.
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11. Per contra, Sri S.Rachaiah, learned High Court Government Pleader, while justifying the impugned judgment and order of conviction, contended that the evidence of P.W.6-Dr.Jacintha D'Souza clearly depicts that there was sexual intercourse on the victim girl on the dates mentioned in the Charge. In view of the sexual intercourse, the victim girl became pregnant and her pregnancy was terminated by giving pills, before the victim girl was examined by P.W.6, and as such, there was no fetus in the womb. P.W.1-victim and P.W.2-mother of the victim have categorically stated about the sexual intercourse made by the accused on P.W.1 and nothing has been elicited in the cross-examination of P.Ws.1 and 2 to disprove the same. Therefore, the learned Sessions Judge is justified in convicting the accused and sought to dismiss the Criminal Appeal.
12. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration in the present Criminal Appeal are:
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(i) Whether the prosecution has made out a case against the accused for the offence punishable under Section 366A of the Indian Penal Code?
(ii) Whether the accused has made out a case to interfere with the punishment of imprisonment for life and to pay fine of Rs.50,000/- and in default, to under go simple imprisonment for one year for the offences punishable under Sections 498A, 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012, in the facts and circumstances of the case?"
13. In order to re-appreciate the material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.
(i) P.W.1-the victim minor girl, who lodged the complaint as per Ex.P.1 reiterated the averments made in the complaint and stated that the accused had forcible sexual intercourse with her, and supported the case of the prosecution.
(ii) P.W.2-Smt.Geetha, mother of the victim girl has stated that, herself and her husband used go to coolie work at 7.30 in the morning and till they 13 return home in the evening, P.W.1 alone used to stay in the house. P.W.1 has studied upto 7th standard and could not continue her education due to mental illness. About one year ago, her daughter was not feeling well and complained of stomach ache and bleeding. She was under the impression that the bleeding was due to menstrual cycle. Even after so many days, the bleeding did not stop. Therefore, when she enquired her daughter- P.W.1, she told that when she was alone at home, the accused had forcible sexual intercourse with her on 3 to 4 occasion, and supported the case of the prosecution.
(iii) P.W.3-Jagadish Bhandari, father of the victim-P.W.1 reiterated the averments made by P.Ws.1 and 2 and supported the case of the prosecution.
(iv) P.W.4-Sabeena, has stated that, since last three years she is working as Anganawadi worker at Killadi. She knows P.Ws.1 to 3. She came to know that about 7 to 8 months ago, the accused had raped P.W.1. She brought it to the notice of Women and Child Welfare Department and Women Helpline, who came to the Anganawadi and enquired about the incident. The witness supported the case of the prosecution.14
(v) P.W.5-Jayashree working as a coolie has stated that she knows P.Ws.1 to 4 and she came to know that the accused committed rape on P.W.1. The witness supported the case of the prosecution.
(vi) P.W.6-Dr.Jacintha D'Souza, Senior Specialist in Government Lady Goschen Hospital, Mangaluru, has stated that on 23.08.2013 at 8.20 pm, the women police of Kavuru Police Station brought the victim girl for medical examination. The victim girl was accompanied by her parents. After obtaining the consent of the parents, she subjected the victim girl for medical examination and gave wound certificate as per Ex.P.4 and opined that sexual intercourse has occurred due to which she became pregnant and at home she underwent complete abortion of two months pregnancy. The blood group of the victim girl is AB+ve, she is aged 16 years and is mentally retarded. No retained products of conception found in the womb. The witness supported the case of the prosecution.
(vii) P.W.7-Dr.Jawahara, General Surgeon, Wenlock Hospital, Mangaluru, has stated that on 24.08.2013 at 4.10 pm, the accused was brought before him for medical examination with history of committing rape 15 before 15.07.2013. On examination, he did not find external injuries on accused's person and opined that the accused was capable of performing an act like sexual intercourse and was aged about 40 years.
The witness supported the case of the prosecution.
(viii) P.W.8-Dr.Sunil Kumar, Medical Officer, Wenlock Hospital, Mangaluru, stated that on 26.08.2013, Smt.Fathima of Bajpe Police Station had brought P.W.1 along with her father, for IQ assessment. He opined that P.W.1 was having IQ of 32 and was having severe mental retardation with mental disability of 90% and he issued the certificate as per Ex.P.6.
(ix) P.W.9-Smt.Asuntha, Child Helpline worker, stated that, since two years she is working in Mangaluru Child Helpline Centre and she knows P.Ws.1 to 3 after the alleged incident. She stated that, whenever they come across any problem to the children, they will contact the concerned Police Station or Department and will give the required assistance. The witness supported the case of the prosecution.
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(x) P.W.10-Smt.Shambha, Women Police Constable stated that she was directed to appear before the Bajpe Police Inspector in casual dress on 23.08.2013 and accordingly when she reported, she was requested to assist in enquiring a minor girl. The Police Inspector also came in casual dress and enquired the minor girl in her presence. The statement of the said minor girl was recorded as per Ex.P.1. After registering the case on the basis of the statement given by the minor girl, she accompanied the minor girl to the Government Lady Goschen Hospital, Mangaluru. The witness supported the case of the prosecution.
(xi) P.W.11-Vishwanath R.Yadav, Police Constable has stated that he obtained the FIR from the Investigating Officer on 23.08.2013 and submitted it before the jurisdictional Court. He stated that the original FIR has been marked as Ex.P.1.
(xii) P.W.12-Devappa Hosamani, Police Constable, has stated that on 23.08.2013, the statement of the victim girl was recorded in the Police Station. At that time, they received a phone call that the accused was caught hold by the public in Kalladi.
Immediately they rushed to Kalladi village, where, 17 around 100 to 150 villagers had gathered and they arrested the accused and brought him to the Police Station. The witness supported the case of the prosecution.
(xiii) P.W.13-Balakrishna Rai, Head Constable stated that on 24.08.2013, he took the accused to the Wenlock Hospital and was subjected the Medical Examination.
(xiv) P.W.14-Smt.Roopashree Rai, Judge, II JMFC, Mangaluru, has stated that on 03.09.2013, she received a Memo to record the statement of the victim minor girl under Section 164 of the Code of Criminal Procedure. Accordingly, she directed the Investigating Officer to produce the victim girl on 04.09.2013. The victim minor girl was present before her at 5.00 pm on 04.09.2013. She questioned as to whether the victim girl is deposing voluntarily or not and after satisfying herself that the victim girl has no pressure or threat from any body, recorded the statement of the victim girl, took her signature and forwarded it to the Court in a sealed cover. While recording the statement, except herself, the Court typist and the victim girl, no other person were present and it was in-camera proceedings. She recorded the statement after 18 confirming herself that the victim girl is in a sound state of mind to give statement. She supported the case of the prosecution.
(xv) P.W.15-Prakash Murthy, Police Head Constable, stated that on 25.08.2013 he accompanied the Investigating Officer for spot inspection and took four photographs as per Exs.P.9 to 12. He supported the case of the prosecution.
(xvi) P.W.16-Dinakara Shetty, Police Inspector, stated that on 23.08.2013, Smt.Asuntha and Smt.Saritha of Child Helpline Centre brought the complainant along with her parents. He summoned a lady constable from Kavuru Police Station and in their presence, enquired the complainant and recorded her statement as per Ex.P.1 and took up the investigation. He supported the case of the prosecution.
14. Based on the aforesaid material documents on record, the learned Sessions Judge proceeded to convict the accused for the offences made out in the Charge.
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15. This Court being the Appellate Court, it is necessary to consider each and every circumstance as to how the learned Sessions Judge proceeded to convict the accused and it is relevant to re-appreciate the entire evidence on record.
16. P.W.1 is the victim minor girl alleged to be mentally retarded. The learned Sessions Judge, before recording the evidence of P.W.1 posed certain questions and after satisfying herself that the witness is able to understand the questions and give rational answers, permitted the victim to depose before the Court. P.W.1- victim minor girl stated that on 3 occasions in her house and on 2 occasions in the house of the accused, the accused forcefully had sexual intercourse with her. In the cross-examination, she has stated that, she is deposing before the Court as tutored by the police and the police tutored her mother also. She admitted that she is suffering from little mental illness for which she is taking treatment in Wenlock Hospital since last three years and in that regard she is taking tablets every day. She has further stated that when she was studying in the Government Primary School, the accused was the President of the School Development Committee 20 and there was some quarrel between her brother and the accused with regard to performing Sathyanarayana Pooja in the school. The accused had constructed a house by taking grant from the Government. After construction of the house, the accused had stopped talking to her mother and there was enmity between the accused and her family. In the cross-examination, she has stated that the accused had not given any tablets on the dates of the offence. She has stated that, her mother tutored her as to what she has to depose before the Court. She has further stated that it is false to suggest that she is suffering from mental illness and there was no sexual assault on her by the accused.
17. P.W.2-mother of the victim girl has stated that she knows the accused who resides in a house adjoining their house. About a year ago, her daughter complained of stomach ache and was bleeding. She was under the impression that it was due to menstrual cycle. Since the bleeding did not stop even after so many days, she questioned her daughter-P.W.1 as to what had happened. At that time, her daughter disclosed that the accused had forcible sexual intercourse with her. In the cross-examination, P.W.2 has stated 21 that every day, after returning home from work at 7.00 pm, she will enquire about the welfare of her daughter. Her daughter has some memory problem and her mental ability has been reduced. In this regard, she is getting treatment for her daughter in Wenlock Hospital. In the beginning, she used to take medicines everyday. Now she is not taking medicines. In Wenlock Hospital, the doctors used to given 4 to 5 tablets every day. P.W.2 has further stated that, it is true to suggest that she used to take extra care as her daughter was mentally unstable. As her daughter had love and affection on her, she used to share everything with her. A week prior to lodging of the complaint, she came to know that her daughter was suffering from stomach ache. Therefore, she served Jeera juice (kashaya). Since the stomach ache continued, she took her to the Dr.Saraswathi Hospital, Mudabidire. Finally, she came to know that the accused had forcible sexual intercourse with her daughter. In the cross-examination, P.W.2 has stated that her family and the accused were not in good terms, after the accused constructed the house by obtaining grant from the Government. 22 The evidence of P.Ws.1 and 2 clearly depicts that there was ill will between the family of the victim girl and the accused.
18. P.W.6-Dr.Jacintha D'Souza who examined the P.W.1-victim girl has stated that, the mother of the victim girl informed her that the victim girl had taken two tablets each on the afternoon and in the night on 21.08.2013 and in the afternoon on 22.08.2013 in order to get aborted. On 21.08.2013, the victim girl had heavy bleeding and had history of passing clots and fleshy mass and got aborted. The parents of the victim girl produced the Certificate dated 11.07.2011 regarding mental status of the victim girl issued by Dr.Arun Kumar Rao of Government Wenlock Hospital, according to which the victim girl was 90% mentally retarded. When victim girl was physically examined, she had proper growth of secondary sexual characters and there were no external injuries on her body. There were no stains of blood or semen on her body. The uterus was found to be of about six weeks. She opined that sexual intercourse has occurred on the victim girl due to which she became pregnant which was subsequently aborted.
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19. P.W.14-Smt.Roopashree Rai, II JMFC, Mangaluru, has stated that she recorded the statement of the victim girl under Section 164 of the Code of Criminal Procedure in in-camera proceedings, after satisfying herself that the victim girl is in a stable state of mind and is deposing without any pressure or undue influence. In the cross-examination, she has stated that she did not notice that the victim girl was suffering from any kind of mental illness and further stated that it is false to suggest that the victim girl was suffering from mental illness and was not in a position to give evidence. She identified the statement of the victim recorded by her which was marked as Ex.P.2.
20. The evidence on record clearly depicts that there was sexual assault/intercourse by the accused on the victim girl. But there is no complaint against the accused with regard to abduction. There is no evidence against the accused to the effect that he induced the victim girl who is below the age of 18 years to go from any place or to do any act with intent to force or seduce her to illicit intercourse with another person. The Charge is that the accused had forcible intercourse with the victim girl in the house of the victim girl and 24 later he took the victim girl to his house and there he had sexual intercourse. Therefore, the Charge that the accused committed an offence punishable under Section 366A of the Indian Penal Code, is without any basis and cannot be sustained.
21. It is not in dispute that the evidence of the prosecution witnesses was recorded between 25.06.2014 and 27.06.2014 and thereafter, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded on 16.07.2014. On the same day, accused filed additional statement under Section 313(5) of the Code of Criminal Procedure. Very curiously, additional Charge came to be framed on 15.09.2014, by allowing the application filed by the Public Prosecutor under Section 216 of the Code of Criminal Procedure seeking to frame additional Charge for the offence under Section 5(j)(ii) and (k) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The additional Charge framed was read over to the accused, explained to him in Kannada language known to the accused and the accused pleaded not guilty. The judicial custody of the accused was extended till next date of hearing. The Public Prosecutor stated no 25 further evidence. Since statement under Section 313 of the Code of Criminal Procedure was already recorded and the counsel for the accused submitted that he has no further evidence and sought time for further arguments, the matter was adjourned to 23.09.2014. After framing of additional Charge for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012, and after completion of prosecution evidence on 15.09.2014, though opportunity was provided to the Public Prosecutor to lead further evidence and learned counsel for the accused to cross examine on the said additional Charge, whether the accused availed the said opportunity or not, is not forthcoming from the order sheet the Sessions Court.
22. After framing of the additional Charge on 15.09.2014, and after completion of evidence of prosecution witnesses, the Public Prosecutor stated that he has no further evidence and the counsel for the accused also stated there is no further evidence and did not chose to avail the opportunity of recalling any of the witnesses as contemplated under Section 217 of the Code of Criminal Procedure. The Public Prosecutor as well as counsel for the accused thought fit 26 that the evidence already adduced for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 376 of the Indian Penal Code, is sufficient to proceed with the case including additional Charge framed under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
23. It is the specific case of the complainant that the accused had sexual intercourse with her as she was mentally ill and she became pregnant. The 'aggravated penetrative sexual assault' under the provisions of Section 5(j)(ii) and (k) of the Protection of Children from Sexual Offences Act, 2012, is punishable under Section 6 of the said Act, which clearly depicts that whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
24. Keeping in view the aforesaid provision of the Protection of Children from Sexual Offences Act, 2012, it is relevant to consider 27 the entire evidence of the prosecution witnesses which clearly depicts that the accused has committed 'aggravated penetrative sexual assault' on the victim girl aged 16 years on different dates mentioned in the Charge. Though lengthy cross-examination has been conducted, nothing is elicited to disbelieve the statement of the victim girl-P.W.1 and her parents-P.Ws.2 and 3. The evidence of P.Ws.1 and 2 is corroborated with the evidence of P.W.6-Doctor who has stated that as on the date of the examination of the victim girl, she was aborted by giving tablets. There was no opportunity to conduct the DNA test as the fetus was already aborted. The statement of the victim girl was recorded by way of in-camera proceedings by P.W.14-II JMFC, Mangaluru, under Section 164 of the Code of Criminal Procedure, without any inducement, force or pressure. The victim girl has deposed before P.W.14 that when her father and mother went to coolie work, the accused committed sexual intercourse with her. She has further deposed that the accused threatened her that if she informs anybody about the sexual intercourse, he would kill her.
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25. The material on record clearly depicts that the accused had forcible sexual intercourse on the victim minor girl. Though there are admissions in the evidence of P.Ws.1 and 2 that the statements made by them in the Court were tutored by the police and that there was ill will between the accused and the family members of the victim girl, the fact remains that the accused committed sexual intercourse with the victim girl has not been disproved by the defence. The sexual assault made by the accused as alleged has not been impeached by the accused to disbelieve the evidence.
26. A careful perusal of the provisions of Section 366A of the Indian Penal Code clearly depicts that, whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. In fact, in the present case, there is no mention of "any other person" in that sequence of allegation leveled against the accused/ appellant in the complaint/Ex.P.1. In that view of the matter, we are satisfied that the Charge under Section 366A of Indian Penal Code was not 29 sustainable against the appellant and the impugned Order passed by the learned Sessions Judge convicting the appellant under Section 366A of the Indian Penal Code is liable to be set-aside.
27. Under the un-amended provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012, the punishment was not less than 10 years which may extend to imprisonment for life with fine. Under the un-amended provisions of Section 376 Indian Penal Code the sentence provided is imprisonment for a term not less than 7 years which may extend to life. The un-amended provisions of Section 42 of the Protection of Children from Sexual Offences Act, 2012, clearly depicts that, "Where an act or omission constitute an offence punishable under this Act and also under any other law for the time being in force, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under such law or this Act as provides for punishment which is greater in degree." Though the un-amended provisions of Section 376 of the Indian Penal Code stipulates imprisonment for a minimum period of 7 years which may extend to 30 life, the un-amended provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012, stipulates the imprisonment not less than 10 years. Taking into consideration the above provisions, we are of the considered opinion that in the peculiar facts and circumstances of the case, the accused has made out a case to reduce the imprisonment for life into imprisonment for a period of 10 years.
28. Though it is the specific case of the prosecution that the accused aged about 50 years had trespassed into the house of the victim girl, when she was alone in the house and had sexual intercourse with her and threatened the victim girl with dire consequences if she informs any body including her parents, the fact remains that when the parents of the victim girl returned home in the evening on the day of the incident, the victim girl did not inform the incident even to her mother or anybody and thereafter, on four occasions they had sexual intercourse both in the house of the victim girl as well as in the house of the accused. The victim girl did not raise any alarm, which clearly indicates that it was a consensual sex. Admittedly from the evidence on record, the 31 prosecution has proved beyond reasonable doubt that the prosecutric/victim was aged 16 years at the time of the incident and accused had alluded and enticed the prosecutrix. Thus her consent was immaterial for the reason that she was a minor, and accused liable to be punished.
29. Though the learned counsel for the appellant contended that the victim girl was a consenting party to have sexual intercourse with the accused and therefore, the sentence has to be reduced to 7 years under the un-amended provisions of Section 376 of Indian Penal Code, the same cannot be accepted, as the learned Sessions Judge, considering the entire material on record has recorded a finding that, as on the date of the incident, the victim girl was a minor. The provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012, clearly indicates that the punishment should not be less than 10 years, even though the provisions of Section 376 of Indian Penal Code stipulates imprisonment for 7 years, in view of the provisions of Section 42 of the Protection of Children from Sexual Offences Act, 2012, the imprisonment shall not be less than 10 years.
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30. Taking into consideration the peculiar facts and circumstances of the case, even though the victim girl alleged to have consensual sex, the fact remains that the victim girl was a minor. Therefore, minimum sentence stipulated under Section 6 of the Protection of Children from Sexual Offences Act, 2012, has to be awarded to the accused, in the interest of justice.
31. Taking into consideration the fact that the accused/appellant is aged 57 years and only bread winner of the family and the entire episode was a result of consent between the accused and the prosecutrix, the punishment imposed by the learned Sessions Judge of imprisonment for life has to be reduced into imprisonment for 10 years.
32. For the reasons stated above, the first point raised for consideration in the present Criminal Appeal has to be answered in the negative holding that the prosecution has failed to make out a case to convict the accused under the provisions of Section 366A of Indian Penal Code. The sentence imposed by the learned Sessions Judge under the said provision is liable to set-aside. 33
33. The second point is answered partly in the affirmative holding that the accused has made out a case to interfere only insofar as sentence awarded under the provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012 r/w Section 376 of the Indian Penal Code.
34. In view of the aforesaid reasons, the Criminal Appeal filed by the accused in allowed in part.
(i) The impugned judgment and order of conviction passed by the learned Sessions Judge under Section 366A of the Indian Penal Code is hereby set-aside. The accused is acquitted for the offence punishable under Section 366A of Indian Penal Code.
(ii) The impugned judgment and order of conviction passed by the learned Sessions Judge imposing the punishment for imprisonment for life and to pay fine of Rs.50,000/- under the provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012, r/w Section 376 of Indian 34 Penal Code is hereby modified. The accused is sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.50,000/-, in default to pay the fine amount, to undergo simple imprisonment for one year under the provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012 r/w Section 376 of Indian Penal Code.
(iii) The impugned Judgment and Order of conviction sentencing the accused to undergo imprisonment for a period of 1 years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for 1 month for the offence punishable under Section 448 of the Indian Penal Code, is hereby confirmed.
35. All sentences to run concurrently.
36. The period of detention undergone by the accused is given set off as against the imprisonment imposed on him, as contemplated under Section 428 of the Code of Criminal Procedure. 35
37. Out of the fine amount imposed on the accused, a sum of Rs.50,000/- shall be paid to the victim girl- P.W.1 as compensation under the provisions of Section 357(3) of the Code of Criminal Procedure, immediately after deposit.
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