Karnataka High Court
Hassain@ Hassain Pasha vs The State Of Karnataka on 11 June, 2018
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 1383 OF 2016
BETWEEN
HASSAIN @ HASSAIN PASHA,
S/O CHAND PASHA,
AGED ABOUT 21 YEARS,
R/O: NOOKALABANDE,
MULABAGAL TOWN,
NATIVE OF MADAGHATTA VILLAGE,
MULABAGAL TALUK,
KOLAR DISTRICT - 563 131.
... APPELLANT
(BY SRI. VEERANNA G. TIGADI, ADVOCATE)
AND
THE STATE OF KARNATAKA,
REP. BY SUB INSPECTOR OF POLICE,
MULABAGAL TOWN POLICE STATION - 573 131.
... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
CRL.A. FILED U/S 374(2) CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT DATED 25.06.2016 AND ORDER
OF SENTENCE DATED 27.06.2016 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR
IN S.C.NO. 262/2014 - CONVICTING THE
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APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 448, 376 R/W 511 OF
IPC AND UNDER SECTION 6 R/W SEC. 18 OF POCSO
ACT, 2012. THE APPELLANT/ACCUSED IS SENTENCED
TO UNDERGO RIGOROUS IMPRISONMENT FOR 5 YEARS
AND PAY FINE OF RS. 25,000/-, IN DEFAULT TO PAY
FINE, HE SHALL UNDERGO SIMPLE IMPRISONMENT
FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 6 R/W SEC. 18 OF POCSO ACT, 2012. THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment judgment of conviction dated 25.06.2016 and order of sentence dated 27.06.2016 passed by the II Additional District & Sessions Judge, Kolar, in S.C.No.262/2014 convicting the accused-appellant herein for the offence punishable under Sections 448, 376 r/w 511 of IPC and Section 6 r/w Section 18 of POCSO Act, 2012. Under the said judgment the accused was sentenced to undergo RI for five years and to pay fine of Rs.25,000/- in default, to :3: undergo SI for one year for the offence punishable under Section 6 r/w Sec. 18 of POCSO Act 2012. The said judgment has been challenged in this appeal urging various grounds.
2. The factual matrix of the appeal are as under:
The complainant is the resident of Nookalabande, Mulbagal Town having six children and the victim girl is his last daughter studying in Government Urdu Primary school in their locality. On 10.09.2014 complainant and his wife went to Jalappa hospital, Kolar for eye treatment and on the said date they stayed in the hospital. On 11.09.2014 complainant leaving his wife in the hospital came to home about 5.30 p.m. and found that the door of his house was opened partially. He entered into the house and found the accused in naked condition in the room of his house and he ran away by wearing nicker. Being afraid he entered inside the room and found his seven years old daughter murmuring laying on the ground due to some pain, and she had no under garments, blood was oozing from her vagina. When he enquired her daughter about the incident, she told that the accused had come to :4: the house and caught hold her and took her inside the room and committed rape on her. Immediately the complainant and his neighbourers provided first aid and found that the accused had committed rape upon his seven years old daughter/victim girl. He went to the police station on 11.9.2014 at about 6.30 p.m. and lodged written complaint as per Ex.P1. The IO of the Mulbagal Police station on receipt of the complaint registered a case in Cr.NO.318/2014 for the offences under Sec.376 of IPC and Section 6 of POCSO Act, 2012 and set criminal law in motion. Based on the complaint the IO investigated the case and laid charge sheet before the concerned court.
Subsequently, charges were framed by the Trial Court against the accused in respect of which the accused did not plead guilty but claimed to be tried.
Thereafter, the prosecution in all examined 18 witnesses as PW-1 to PW-18 and got marked Exhibits P-1 to P-21 and MO.1 to 6 and closed its side. Subsequent to the closure of the evidence of the prosecution, the incriminating statement of the accused under Section 313 Cr.P.C. was recorded where accused had denied the truth :5: of the prosecution adduced and he did not come forward to adduce any defence evidence.
On appreciation of entire evidence on record, the court below convicted the accused for the offences punishable under Sections 448, 376 read with Section 511 of IPC and Section 6 read with Section 18 of POCSO Act, 2012. It is this judgment which is under challenge in this appeal.
3. Heard Shri Veeranna G.Tigadi, learned counsel for the appellant and Shri K. Nageshwarappa, the learned Government Pleader for the State and perused the records.
4. Keeping in view the arguments advanced by the learned counsel for the parties in this appeal, the point that arises for consideration is, "Whether the judgment of conviction and sentence held by the court below in S.C.No.262/2014 calls for interference and whether the court below is justified in holding conviction against the accused for :6: the offence punishable under Section 6 r/w Section 18 of POCSO Act?".
5. Learned counsel for the appellant, during the course of his argument has taken me through the evidence of PW-1 to 3 coupled with the evidence of PW.4 and 5. PW.1 is the author of the complaint at Ex.P1. He contends that the Trial Court had misdirected the entire evidence of PW.1 and so also the evidence of the PW.10, the Doctor who treated the victim girl and issued opinion as per Ex.P11. It is the contention of learned counsel for the appellant that the court below ought to have held an enquiry to ascertain whether the appellant was juvenile when the prosecution was not sure about the age of the accused while mentioning that his age was about 19 years. He further submits that the court below has not properly appreciated the evidence of prosecution witnesses where the evidence of PW.1 to 3 was false and frivolous and contrary to the evidence of PW.10, the Doctor. He further contends that all the allegations made against the accused in the complaint Ex.P1 are contrary to the evidence adduced by the prosecution witnesses and :7: the benefit of the same should have been given to the accused. There is inordinate delay in filing the complaint and the same is unexplained. The evidence adduced by PW.1 and PW.2 is totally contrary to the evidence of PW.10 the Doctor who treated the victim girl. He further contends that the court below has failed to see that while issuing Ex.P7, the medical certificate by PW.9 Dr.Shankar did not examine the accused to ascertain his age. It is further contended that the court below has failed to consider the evidence of PW.8 Dr.Bayyappa Reddy who has stated that the accused might be aged between 18 and 20 years. He further contends that the court has not properly appreciated the evidence of PW.10 Dr. Nagaveni where she has ruled out penetrative sexual assault over the victim girl and ought to have acquitted the accused of the charges levelled against him. The court below having held that the prosecution has failed to make out a case under Section 376 of IPC could not have held that the prosecution had proved the aggravated penetrative sexual assault as defined under Section 5 of the POCSO Act, 2012. Even the court below has failed to see that the :8: definition under Section 5 is attracted only when penetrative sexual assault is by a police officer or a public servant, whereas it is not the case of the prosecution that the accused is a police officer or a public servant. It is his further contention that the statement of accused recorded under section 313 of Cr.P.C. has not been properly recorded and proper opportunity was not given to him to explain the incriminating circumstances against him. He further contends that the court below has failed to see that the evidence adduced by the prosecution utmost may amount to sexual assault and not penetrative sexual assault. On all these grounds urged by the learned counsel for the appellant seeks revisiting of the judgment of conviction and sentence passed by the court below.
6. Learned counsel for the appellant further contends that, PW.1 being the complainant and father of victim girl that the accused was doing the work of sharping of knife, chopper, but denied the suggestion that PW.1 got the work of sharping weapons and kept due of Rs.300/- and that the accused demanded for payment of :9: due amount and PW.1 by creating false story, filed false complaint against the accused. It is contended that the court below has failed to note the variation in the timing of incident that took place. The court below based upon the evidence of PW.4 and PW.5 has erroneously come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Even in the evidence of PW.3 the victim girl, during her cross examination deposed that she returned from the school at 5 p.m. and accused immediately entered into the house, took her to the room by closing her mouth, removed her clothes and removed his clothes and committed rape upon her. But she has denied that because of eye operation of her mother, her parents were in the hospital for which her father PW.1 never returned to the house on the alleged date of incident. PW.3 was subjected to cross examination incisively. But her evidence runs contrary to the evidence of PW.10 Doctor who has given final opinion stating that there were no signs suggestive of vaginal/intercourse but there is evidence of physical assault.
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7. On all these grounds urged, the learned Counsel for the appellant prays for re-visiting the impugned judgment of conviction and sentence by re-appreciating the entire evidence in a proper perspective, since the Trial Judge has committed an error in arriving at the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, he prays that the impugned judgment of conviction and sentence held by the Trial Court in S.C.No.262/2014 be set aside by allowing this appeal.
8. Per contra, learned Government Pleader Shri K. Nageshwarappa has taken me through the impugned judgment of conviction and sentence held by the Trial Court, particularly to the evidence of PW-1, the father of the victim girl, PW-3, the victim girl and PW-4 and PW-5, the neighbourers. He contends that the prosecution has appreciated the evidence on record in a proper perspective and had succeeded in proving the guilt of the accused, which is clear from the evidence itself. The evidence of PW.1 and PW.2 the parents of the victim girl and the : 11 : evidence of circumstantial witnesses PW.4 and PW.5 coupled with the evidence of the PW.3 the victim girl regarding the presence of the accused in a naked condition in the house of the victim girl i.e., when she was alone in the house and also the victim girl had no under garments and she was suffering from pain due to sexual assault and the witnesses have noticed the bleeding was oozing from the vagina of the victim girl. He submits that the court below on appreciation of the entire evidence on record has rightly convicted the accused and seeks for dismissal of the appeal preferred by the appellant / accused as being devoid of merits. Merely because the medical evidence is contrary to the evidence of victim girl who was aged below 8 years as on the date of incident and also the medical evidence which is contrary to the evidence of circumstantial witnesses who have saw the bleeding injury in the vagina of the victim girl, he submits that while appreciating the evidence of prosecutrix, the court below has rightly convicted the accused for the alleged offences. He contends that Trial Court had rightly relied upon the judgment of Supreme Court wherein it is : 12 : held that while appreciating the evidence of prosecutrix, the courts must always keep in mind that no self respecting woman would put her honour at stage by falsely alleging commission of rape on her and therefore, ordinarily look for corroboration of her evidence is unnecessary and uncalled for. Hence, on these grounds, the learned HCGP supports the judgment of the Trial Court and submits that the said judgment of conviction and sentence needs no interference.
9. Having regard to these strenuous contentions taken by the learned counsel for the appellant, it is relevant to take note of the evidence of PW-1, the complainant and father of the victim girl that on 10.09.2014, when he went to Jalappa Hospital, Kolar for eye treatment of his wife he stayed there in the hospital. On 11.9.2014 at about 5.00 to 5.30 p.m. he alone came to the house by leaving his wife in the hospital and found door of his house was opened partially. When he went inside he found that accused was in naked and by wearing nicker he ran away by taking his pant and he : 13 : further proceeded in the room and found his daughter was laying on the ground and the blood was oozing from the private part and after enquiry she stated that accused had committed rape upon her. On the same day he went to the police and lodged a complaint.
10. PW.2, mother of the victim girl deposed that about two years back, she went to the eye hospital along with her husband and her husband went to the house leaving her in the Jalappa hospital and later informed the fact of incident.
11. PW.3 the victim girl in her evidence has deposed that when she was alone in the house on the date of incident at about 5.00 pm accused by closing her mouth dragged her towards room and after removing her clothes and removing his clothes, he committed rape on her and when PW.1 her father entered into the house, accused on seeing him ran away by taking his pant and she explained about the incident to her father. She had bleeding in her vagina and later she was brought to the hospital and after : 14 : examination she gave statement before the Magistrate as per Ex.P3 under Section 164 Cr.P.C.
12. PW.4 Gulzar Begum and PW.5 Babu are residents of the locality of PW.1 to 3. They are the prime witnesses. They deposed that some quarrel was going in front of house of PW.1. They immediately rushed there and found that accused was running holding a pant, they found that victim girl was lying on the ground without under garments. They deposed that accused was doing the work of sharping of knife, chopper.
13. PW.18, the IO who investigated the case has deposed that on 11.9.2014 he took further investigation of the case from ASI Rajendra Prasad who had registered the case, sent FIR to the court. He sent the victim girl for medical examination and conducted spot mahazar as per Ex.P2 and recorded the statements of witnesses. He further deposes that after lodging complaint, drew the spot mahazar as per Ex.P6. After the arrest of the accused, he recorded the voluntary statement of the accused and Ex.P18 is the relevant portion pertaining to : 15 : the discovery of school transfer certificate of the accused and Ex.P19 is the school certificate. In Ex.P19 the date of birth of accused is mentioned as 15.07.1995 issued by the Government Urdu Model Primary School, Mulbagal. Later he submitted a requisition by contending that as per school records this accused is juvenile and requested to the Court to permit to produce the accused before Juvenile Board, KGF for which the court below directed the CPI to refer the accused for medical examination to determine the age of the accused and after medical and radiology test, it was found that the accused was above age of 18 years and below 20 years.
14. PW.10 Dr.Nagaveni is the Doctor working as medical officer in the Government Hospital, Mulbagal. She has deposed that on 12.9.2014 she examined 7 years old victim girl brought by PW.1, being her father for medical examination and found abrasion over chin. She collected the clothes of victim girl as per MO.1 and 2, swab as per MO.6 and handed over the same to police for FSL examination. In her further evidence, she states that she : 16 : received a FSL report as per Ex.P9 and found there were no signs suggestive of vaginal/intercourse but there is evidence of physical assault.
15. PW.9, Dr.N.Shankar has deposed that he was working as Medical Officer in Mulbagal Government hospital and on 12.9.2014 at about 12.30 p.m. he examined the accused on the request of the circle inspector and after examination it was found that accused was well built, well nourished for age and there was abrasion mark over left clavicle region, abrasion probably caused by nail and no injuries were found around genital, there were no blood or semen stain over the person or clothes, he collected the semen, pubic hair and clothes of accused for FSL examination and identified the same as MOs 3 to 5. He opined that the accused was capable to perform sexual intercourse at the time of incident.
16. PW.8 Dr.Byappareddy has deposed that when the accused was brought to him to ascertain his age, he tested him and found that he was between 18 and 20 years and issued a certificate as per Ex.P6. It reveals that : 17 : as on the radiological examination of the accused he was above 18 years and below 20 years. He also conducted the radiology examination of the victim girl, subjected for X- ray and found her age was between 6 and 8 years and issued certificate as per Ex.P5.
17. It is relevant to state here that the Trial Court has observed that the evidence of PW.10 reveals that she has given casual opinion without thinking the seriousness of the offences that is taken place on 7-8 years old victim girl. It has observed that medical evidence of PW.10 completely destroys the case of the prosecution for the offence punishable under Section 376 of IPC. It had come to the conclusion that after considering the evidence of doctor with the evidence of victim and other witnesses, at the most it can be said that accused has attempted to commit rape upon victim girl, thereby the accused has committed the offences punishable under Section 376 r/w section 511 of IPC and Section 5(I)(m) r/w Section 18 of POCSO Act by attempting to aggravated penetrative sexual assault on a child below 12 years of age. Admittedly, the : 18 : accused was charge sheeted for the offences punishable under Section 448, 376 of IPC and Section 6 of POCSO Act. But the Court below on appreciation of the medical evidence concluded that accused has committed an offence punishable under Section 448 IPC and Section 376 read with Section 511 of IPC and also committed an offence punishable under Section 6 r/w 18 of POCSO Act, 2012.
18. The Trial Court has placed much reliance on the evidence of PW.1, PW.2, the parents of the victim girl and the evidence of circumstantial witnesses PW.4 and 5 being the neighbourers, coupled with the evidence of victim girl regarding the presence of the accused in a naked condition in the house of the victim girl i.e, when she was alone in the house and also they noticed that the victim girl had no under garments and she was suffering from pain due to sexual assault and they had also noticed the bleeding was oozing from the vagina of the victim girl.
19. PW.3 being victim as on the date of incident was minor. To prove its case, the prosecution has : 19 : produced the oral evidence of father of the victim girl and evidence of victim girl. The victim girl mentioned her age as on the date of giving her evidence as 8 years and the Investigating officer collected the school record of the victim girl as per Ex.P12 wherein the date of birth of the victim girl appeared as 6.3.2006. The evidence of PW.1 and 2 said to be the parents of the victim girl, requires to be reappreciated in a proper perspective manner coupled with the evidence of PW.3 and so also the evidence of PW.4 and PW.5 said to be the neighbourers.
20. The Trial Court has misdirected and misread the entire evidence of PW.1 to 3 coupled with the evidence of PW.4 and PW.5. Their evidence is contrary to each other and contrary to the complaint said to be given by PW.1. The Trial court ought to have appreciated the evidence of PW.10 Doctor who has stated in her report that there are no signs of suggestive of vaginal/and intercourse. Further she has mentioned in her final report that seminal stains was not detected. However, pubic hairs were not sent for examination and on the : 20 : basis of FSL report as per Ex.P9 she states that there are no signs suggestive of vaginal/and intercourse but there was evidence of physical assault. The Trial Court having held that the medical evidence of PW.10 Doctor runs contrary to the evidence of the victim girl who was aged below 8 years as on the date incident and also the evidence of the witnesses who have saw the bleeding injury in the vagina of the victim girl, erred in passing the impugned judgment convicting the accused. The evidence of prime witness like PW.10 Doctor ought to have been considered by the court below. But giving a goby to the said evidence, the court below has misdirected and misread the entire evidence of prosecution which runs contrary to the evidence of PW.10. Therefore, in this appeal the entire evidence on record requires to be reappreciated.
21. The court below relying on a decision of Supreme Court in the case of Rajinder vs. State of UP reported in 2009(3) Crimes 222(SC) has held that the rape is not merely assault, it is often destructive of the whole : 21 : personality of the victim, the murdered destroys the physical body of his victim, rapist degrades the very soul of the helpless female. The court below held that the evidence of PW.10 reveals that the Doctor has given casual opinion without thinking the seriousness of offences that is taken place on 7-8 years' old victim girl. It observed that the medical evidence of PW.10 completely destroys the case of the prosecution for the offence punishable under Section 376 of IPC. The court below ought to have noticed that the evidence of PW. 1 to 3 coupled with evidence of PW.4 and PW.5 runs contrary to the evidence of PW.10. This elementary factor has not been considered by placing cogent, consistent and corroborative evidence to probabalise that the accused has committed sexual assault on PW.3 victim girl.
22. Learned counsel for the appellant submits that the accused is in judicial custody since the date of arrest and he has undergone sentence for a period of three years and nine months in Jail. On going through the entire evidence of the prosecution, I find that the Trial Court has : 22 : misdirected and misread the entire evidence of the prosecution witnesses and has erroneously come to the conclusion that the prosecution has proved the guilt of the accused. In the absence of conclusive proof of the offences alleged against the accused, the Trial Court has erred in convicting the accused under Sections 448, 376 read with Section 511 IPC and under Section 6 r/w Section 18 of POCSO Act and sentencing him to imprisonment for the alleged offences. Therefore, in view of several inconsistencies in the evidence and the guilt of the accused having not been proved by cogent and consistent evidence, and also that the accused has served substantial sentence for a period of three years nine months therefore, the appeal requires to be allowed, consequently the order of the trial court requires to be set aside. Accordingly, the point framed by this court is answered in the negative.
For the foregoing reasons, the appeal is allowed. The judgment of conviction dated 25.06.2016 and order of sentence dated 27.06.2016 passed by the II Additional : 23 : District & Sessions Judge, Kolar, in S.C.No.262/2014 convicting the accused-appellant herein for the offence punishable under Sections 448, 376 r/w 511 of IPC and Section 6 r/w Section 18 of POCSO Act, 2012 is hereby set aside. The accused-appellant is acquitted of the charges levelled against him. The accused shall be set at liberty forthwith, if he is not required to be detained in any other cases.
Accordingly, Registry is directed to communicate this order to the concerned jail authorities, for compliance.
Sd/-
JUDGE DKB