Karnataka High Court
The State Of Karnataka vs Amzad Pasha on 16 February, 2023
-1-
CRL.A No.1534/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 1534/2016 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY TUMAKURU CITY
POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 572 101 ... APPELLANT
(BY SRI.K.NAGESHWARAPPA, HCGP)
AND:
1. AMZAD PASHA
S/O MOHAMED HATHAULLA
AGED ABOUT 30 YEARS
R/AT 2ND CROSS, TIPPUNAGAR
TUMAKURU TOWN
Digitally TUMAKURU DISTRICT - 572 101
signed by D
K BHASKAR 2. CHAND PASHA
Location: S/O ABHID SAB
High Court AGED ABOUT 42 YEARS
of Karnataka
R/AT 2ND CROSS, TIPPUNAGARA
MELEKOTE ROAD, TUMKUR TOWN
TUMKUR DISTRICT ... RESPONDENTS
(BY SRI.KARTHIK KUMAR K, ADVOCATE FOR R1;
R-2 SERVED)
THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) OF
CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE
JUDGEMENT AND ORDER DATED 03.10.2015 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU IN
SPL.C.NO.432/2014, THEREBY ACQUITTING THE
ACCUSED/RESPONDENT FOR THE OFFENCE P/U/S 366(A),506,376
OF IPC AND SEC. 4 OF POCSO ACT.
-2-
CRL.A No.1534/2016
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the order of acquittal passed by the III Additional District and Sessions Court, Tumkur in SC No.432/2014 the State has preferred the above appeal.
2. Respondent/accused was tried in SC No.432/2014 for the charges for the offences punishable under Sections 366A, 506, 376 IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act' for short) on the basis of the charge sheet filed by Tumkur Town Police in Crime No.75/2014 of their police station. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
3. The case of the prosecution is as follows:
(i) That PW.2 the victim girl as on 25.05.2014 was aged 15 years. PWs.1 and 3 are the father and mother of PW.2. The accused was the close acquaint of PW.1. Between 19.05.2014 and 22.05.2014 PW.2 was admitted in district hospital, Tumkur and she underwent Piles surgery on 20.05.2014. During that time, accused tried to develop -3- CRL.A No.1534/2016 intimacy with her. On noticing that her uncle admonished her.
When she revealed that, the accused inducing her of love and marriage, kidnapped her from Tumkur on 22.05.2014 with an intention to sexually abuse her. Then he took her to Darga situated within the limits of Ozugunte village of Sira Town. While staying there he committed penetrative sexual assault on her. Then he took her to Gulbarga. PW.1 filed missing complaint as per Ex.P1. PW.2 after one week informed her father over phone.
(ii) On the basis of Ex.P1, PW.11 registered FIR in Crime No.75/2014 as per Ex.P11 against unknown persons. On getting information from PW.2, PW.1 informed police. Then they rescued PW.2 from Gulbarga. On recording her statement, PW.11 included Section 366A, 376, 506 IPC and Section 4 of the POCSO Act and the accused in the case. Then he handed over further investigation to PW.12. PW.12 further investigated the case and filed charge sheet.
4. The trial Court on hearing both side framed the charges against the accused for the offences punishable under Sections 366A, 506, 376 IPC and 4 of the POCSO Act. In support of the case of the prosecution PWs.1 to 12 were -4- CRL.A No.1534/2016 examined and Exs.P1 to P11 and MOs.1 to 6 were marked. On examination of the accused under Section 313 Cr.P.C, the accused neither filed defence statement nor led defence evidence.
5. The trial Court on hearing the parties by the impugned judgment and order acquitted the accused on the following grounds:
(i) The prosecution failed to prove that the victim was below 18 years;
(ii) The material witnesses PWs.4 to 6 have not supported the prosecution case;
(iii) PWs.1 and 3 are not the eyewitnesses and they are only hearsay witnesses;
(iv) The evidence of PW.2 is not free from blemish as the same has material contradictions and inconsistencies with regard to place of kidnapping, manner of kidnapping etc.;
(v) The grandmother of the victim who allegedly accompanied her in the hospital is not cited as a charge sheet witness nor examined before the Court;
(vi) The case sheet of the victim regarding her admission in the District Hospital, Tumkur is not produced; -5- CRL.A No.1534/2016
(vii) If at all the victim had undergone Piles surgery and soon thereafter penetrative sexual assault was committed on her, there should have been notable injuries on her private part which is not found in the medical examination report Ex.P3 or the evidence of PW.10;
(viii) The call details of the accused and the victim were not collected;
(ix) There was inordinate delay in delivering the FIR to the Court.
(x) In the light of such doubtful circumstances the accused is entitled to the benefit of acquittal.
Submissions of Sri K.Nageshwarappa, learned HCGP:
6. PW.2 being the victim of the sexual offence is on par with the injured eye witnesses. There was no explanation to disbelieve her evidence. Minor contradictions and inconsistencies could not have been blown out of proportion by the trial Court. The trial Court was not justified in seeking corroboration to the said evidence. The evidence of PW.2 was corroborated by the medical evidence and the evidence of her parents. There was no reason for PWs.1 to 3 to falsely implicate the accused in the case. In the evidence of PWs.1 to -6- CRL.A No.1534/2016 3, 8, 11 and 12, the accused had not disputed the age of the victim at all. Therefore the trial Court committed error in holding that the age was not proved by the evidence of PWs.1 to 3 and 8. The initial burden of proving the charge was discharged by the prosecution. In view of Sections 29 and 30 of the POCSO Act, the burden of reversing the presumption of commission of offence was on the accused. He did not offer any explanation at all either in his examination under Section 313 Cr.P.C or by filing defence statement or leading any defence evidence. The trial Court acted very lightly in acquitting the accused searching for such minor contradictions and inconsistencies which has led to injustice. Submissions of Sri Karthik Kumar.K, learned Counsel for the accused/respondent:
7. The initial burden of proving the charge was on the prosecution. Even if the accused did not dispute the age of the victim, the prosecution had the burden to prove that the victim was aged 15 years. But her school record was not produced in proof of her age. Ex.P8 the birth certificate did not bear the name of the victim to relate the said document to her. Therefore, the trial Court was justified in rejecting the -7- CRL.A No.1534/2016 said documents. The evidence of PWs.1 to 3 and the statements of the victim under Section 164 Cr.PC and 161 of Cr.PC i.e., Ex.P9 were not consistent with regard to the place of commission of kidnapping and the place of tracing the accused. The prosecution had the obligation to prove that the victim was in district hospital, Tumkur and from there she was enticed on inducement. But the prosecution did not produce any material in proof of her admission into the said hospital.
Therefore genesis of the case itself was not proved. Under such circumstances the evidence of PW.2 needed corroboration. The driver of the auto in which she was allegedly kidnapped was not examined. Except PWs.1 to 3, no other evidence regarding kidnapping and keeping her hostage in Darga at Sira and Gulbarga were examined. Therefore, the trial Court was right in holding that the charges were not proved beyond reasonable doubt.
8. Having regard to the submissions of both side and on examining the material on record, the question that arises for consideration is "whether the impugned judgment and order of acquittal suffers glaring illegality leading to injustice?".
-8-CRL.A No.1534/2016 Reg: Age of victim:
9. The case involved the offences under Sections 366, 376, 506 IPC and Section 4 of POCSO Act. It is true that to invoke the provision of Section 4 of the POCSO Act, the victim shall be aged below 18 years. The prosecution has to prove that the victim was aged 15 years as contended by it.
10. PW.1 deposed that in 2014 his daughter PW.2 was aged 14 years. PW.2's evidence was recorded on 05.02.2015 and she states that her age as on the date was 16 years. In the cross-examination of these two witnesses there was no single suggestion denying their statements regarding her age nor it was suggested that she aged above 18 years. Even in the evidence of PW.3 the mother, it was not suggested that PW.2 was aged above 18 years. Similarly, in the evidence of PWs.10 and 11 the police officers who registered the FIR and filed charge sheet there was no denial of the age of the victim. PW.10 has also recorded the age of PW.2 in Ex.P3 examination report of PW.2 as 15 years. The only suggestion to her is that she has recorded that age as per the statement of PW.2. It is not even suggested that the victim girl had -9- CRL.A No.1534/2016 given false age. Moreover such suggestion was not made to PW.2 herself.
11. The birth certificate Ex.P8 was disbelieved by the trial Court on the ground that, it does not bear the name of the child. However, that bears the names of PWs.1 and 3 as parents. Ex.P8 shows that the registration of the birth was made on 03.02.1999. That was within one month of the birth of the child. At that time it was not foreseen that such a case comes up with regard to PW.2. The said document was corroborated by the unquestioned evidence of PWs.1 to 3 regarding to the age of the victim. Therefore the finding of the trial Court that the prosecution failed to prove that the victim was aged 15 years is erroneous and contrary to the evidence on record.
Reg: proof of charges of kidnapping and sexual assault:
12. It is no doubt true that the investigating officer did not collect the case sheet or the discharge summary from the district hospital, Tumkur, to substantiate that, during the relevant period she was admitted in that hospital and she was kidnapped from that place. It is not disputed that PWs.1 to 3 are residents of Tumkur. It was also not disputed that the
- 10 -
CRL.A No.1534/2016missing complaint as per Ex.P1 was filed on 23.05.2014. In Ex.P1, PW.1 had not implicated the accused. If he had any ill will, certainly he could have implicated him in Ex.P1 itself.
13. The evidence of PWs.1 and 3 that PW.2 went missing from Tumkur is not disputed. Whether that was from hospital or from their house is secondary. Further the evidence of PWs.1 and 3 shows that the victim went missing from 22.05.2014 onwards. As per the evidence of PW.1 after seven days of her missing, she called him over phone and informed him about she being in Gulbarga. Then he informed the police, then himself and police went to Gulbarga and found PW.2 in Hazarath Shah Mohamed Shah Khadri Darga and took her back to Tumkur police station.
14. PW.2 deposes that when her uncle admonished her for talking to the accused in the hospital she felt sad and revealed that to the accused, he lured her that he will marry her and takes care of her. He took her in an auto-rickshaw and from there they went to Sira in Bus. He lodged her in room at Darga in Sira and that day he committed penetrative sexual assault on her and threatened her of life. Thereafter he took her to some other places. Finally he took her to
- 11 -
CRL.A No.1534/2016Gulbarga. She further deposed that when the accused had gone to City leaving her in Darga, with the help of some nearby person, she phoned her father and informed him. Next day police and her father came to Gulbarga took her back to Tumkur. She deposed that, thereafter police got her examined through doctor and got her statement recorded through the Magistrate etc.,
15. PW.3 the mother of PW.2 states that PW.2 went missing on 22.05.2014 from the hospital, on 28.05.2014 on learning her whereabouts her husband went to Gulbarga along with the police and brought her back. In the cross- examination of these witnesses, the girl's missing away for about a week is not disputed. In the cross examination of PWs.1 to 3 the theory of any other person taking PW.2 away from her guardians or she herself leaving home and going somewhere else was not suggested. Though it is suggested to PW.1 that he had some ill will against the accused regarding Jamath dispute, but the same theory was not suggested to PW.2. Another theory of PW.2's uncle having ill will against the accused was suggested which was denied. In the cross-
- 12 -
CRL.A No.1534/2016examination of PW.3 absolutely there was no suggestion of any cause for false implication of the accused.
16. PW.10 the doctor who examined PW.2 is the independent witness, she deposes that on 29.05.2014 at 8.30 p.m. on the requisition of police she examined PW.2. She also deposed that PW.2 was reported before her with a history of sexual abuse. As per the history recorded in Ex.P3 the victim was taken by the accused (who was married and having one kid) on 22.05.2014 with a promise of marriage. As per the history, they went to Sira and stayed there for one week and during that period sexually cohabitated with each other. The history also records about the victim undergoing Piles surgery in Tumkur hospital.
17. Ex.P3 and the evidence of PW.10 show that the victim was examined soon after she was traced. Therefore there was no chance for any manipulation by that time. The medical examination report also revealed that hymen of the victim was ruptured and indicated that she was subjected to sexual intercourse. In the cross-examination of PW.10 absolutely nothing was suggested about the finding that the victim was subjected to sexual intercourse. Thereby the
- 13 -
CRL.A No.1534/2016evidence of PW.1 stood corroborated by the evidence of PW.10 and the evidence of her parents PWs.1 and 3.
18. Sofar as injuries not being found consequent to sexual assault on a girl who had undergone piles surgery, firstly she was examined after about 10 days of the incident. As per the history in Ex.P3 and evidence of PW.10 it was case of eloping. Therefore contention of victim suffering injuries or traces of the same during her medical examination deserves no merit.
19. Now it is a settled law that the victim of sexual abuse stands on par with a injured eye witness. The evidence of such witnesses does not need corroboration, if same is found acceptable. The larger bench of the Hon'ble Supreme Court in Ganesan vs. State1 referring to catena of its earlier judgments has held that the rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the 1 AIR 2020 SC 5019
- 14 -
CRL.A No.1534/2016commission of the offence. Thus the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. As long back as in the year 1996, the Hon'ble Supreme Court in the judgment of State of Punjab Vs Gurmit Singh2 has held that it is the duty of the Court to deal with the cases involving sexual molestation with utmost sensitivity. It has further held that the minor contradictions or insignificant discrepancies in the statement of prosecutrix could not be a ground for throwing out an otherwise reliable prosecution case. It was further held that accused can be held guilty on sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. Her evidence is more reliable than that of an injured witness. By the evidence of PWs.1 to 3 and 10, the initial burden of proving the fact that the minor victim was kidnapped from the custody of her parents and she was subjected to sexual abuse was discharged. Then Sections 29 and 30 of the POCSO Act come into operation. 2 (1996)2 SCC 384
- 15 -
CRL.A No.1534/2016
20. Section 29 of the POCSO Act confers the mandatory presumption that when a person is prosecuted for the commission of offences under Sections, 3, 5,7 and 9 unless the contrary is proved, he has committed such offences. Section 30 of the POCSO Act confers the presumption of existence of culpable mental state on the accused in committing such offence. On discharging of initial burden of proving the basic fact, the accused had the reverse burden of disproving the said facts. The accused in this case had not only suggested anything to PWs.2 and 10 about the evidence that victim is subjected to sexual abuse, he did not even explain in his statement under Section 313 Cr.PC nor filed any written statement or led any defence evidence.
21. The trial Court failed to notice the effect of Sections 29 and 30 of the POCSO Act and failed to appreciate the evidence on record in a proper perspective. The trial Court acted contrary to the evidence on record, sections 29 and 30 of the POCSO Act and judgment of Hon'ble Supreme Court in Gurmit Singh's case referred to supra, in attaching undue significance to the inconsistencies with regard to place from where the victim was kidnapped and regarding non production
- 16 -
CRL.A No.1534/2016of the case sheet of Tumkur district hospital. That has led to miscarriage of justice.
22. The evidence on record discloses that the accused was well acquainted with the mother of the victim. Taking advantage of that, though he was already married and had a child and was more than 12 years older to PW.2, the accused made drama of sympathizing PW.2 a child, manipulated her mental state and kidnapped her from the custody of her parents to appease his lust. Thereby he betrayed the trust reposed by PW.1 on him. The trial Court missed the said point. Therefore, the impugned judgment and order of acquittal is illegal and liable to be set aside.
23. However, Section 366A IPC speaks of kidnapping the girl for the purpose of forcing her for illicit intercourse with another person. Therefore Section 366 IPC applies. The accused is liable to be convicted for the offences punishable under Sections 366, 506, 376 IPC and Section 4 of the POCSO Act. Hence the following:
ORDER The appeal is partly allowed.
- 17 -CRL.A No.1534/2016
The impugned judgment and order of acquittal is set aside.
The respondent/accused is convicted for the offences punishable under Sections 366, 506, 376 IPC and Section 4 of the POCSO Act.
Learned Counsel for the respondent shall keep the accused present before this court on next hearing date to hear on sentence.
List on 23.02.2023.
Sd/-
JUDGE Sd/-
JUDGE PKN