Karnataka High Court
Sandesh @ Sandesha T S vs State By Banakal Police Station on 5 July, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:23128
CRL.A No. 2176 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 2176 OF 2017
BETWEEN:
1. SANDESH @ SANDESHA T S
S/O SHANKARA T.M.,
AGED ABOUT 22 YEARS,
R/AT TRIPURA VILLAGE,
BANAKAL HOBLI,
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT - 577 101
...APPELLANT
(BY SRI. GIRISH B BALADARE , ADVOCATE)
AND:
1. STATE BY BANAKAL POLICE STATION
CHIKAMAGALURU,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001
...RESPONDENT
Digitally signed by (BY SRI. S. VISHWA MURTHY, HCGP)
SHOBHA C
Location: High
Court of Karnataka THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. BY PRAYING TO SET ASIDE THE JUDGMENT DATED
11.12.2017 PASSED BY THE I ADDITIONAL SESSIONS AND SPECIAL
JUDGE, CHIKKAMAGALURU IN SPL.C.NO.(POCSO)NO.4/2017 -
CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 376(2)(n) OF IPC AND SECTION
5(j)(ii), 5(l), 5(n) AND 6 OF PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT. THE APPELLANT/ACCUSED IS SENTENCED
TO UNDERGO RIGOROUS IMPRISONMENT FOR 10 YEARS AND TO
PAY FINE OF RS.80,000/- IN DEFAULT OF PAYMENT OF FINE HE
SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 2 YEARS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(2)(n) OF IPC
AND SECTIONS 5(j)(ii), 5(l), 5(n) AND 6 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT.
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NC: 2023:KHC:23128
CRL.A No. 2176 of 2017
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the I Additional Sessions and Special Judge, Chikkamagaluru in Special Case (POCSO) No.4/2017 dated 11.12.2017 for having found the appellant guilty, convicted and sentenced to undergo imprisonment for a period of 10 years and to pay fine of Rs.80,000/-, in default of payment of fine, he shall undergo simple imprisonment for 2 years for the offence punishable under Section 376(2)(n) of IPC read with Section 5(j)(ii), 5(l), 5(n) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').
2. Heard the learned counsel for the appellant and learned High Court Government Pleader for the respondent - State.
3. The case of the prosecution is that the mother of the victim girl-PW.1-Vanitha filed a complaint to the Police alleging that the accused is her son-in-law. Her elder daughter -3- NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 married to him and have a child. After death of her husband, her elder daughter came and stayed along with her husband in their village along with the complainant. Once the victim asked to rub her back during bathing, the complainant observed that the stomach of the victim was developed and on enquiry, it was found, the accused was the cause for the same and she was taken to the hospital, where she found pregnant and later complaint came to be registered for the offence punishable under Section 376 of IPC and Section 6 of the POCSO Act. The Police arrested the appellant and remanded to the judicial custody on 26.12.2016 and the trial Court framed the charges, he denied the charges. Accordingly, to prove its case, the prosecution examined 14 witnesses as per PWs.1 to 14, got marked 26 documents and recorded the statement under Section 313 of Cr.P.C. The case of the accused is one of the total denial, but not entered into any defence. After hearing the arguments, the trial Court found the accused guilty, convicted and sentenced to undergo imprisonment as stated in paragraph No.1 of the judgment. Being aggrieved with the same, the appellant is before this Court.
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NC: 2023:KHC:23128 CRL.A No. 2176 of 2017
4. The learned counsel for appellant has contended that the trial Court has committed error in convicting the appellant. There is no proper evidence adduced by the prosecution. Even otherwise, PWs.1 and 2 have turned hostile in their cross examination, by the trial Court ignoring the same, convicted the appellant which is not correct. The evidence of the prosecution is insufficient to prove the guilt of the accused. Hence, prayed for allowing the appeal.
5. Per contra, learned High Court Government Pleader seriously objected the appeal and contended that the evidence of PWs.1 and 2 was clearly accepted by the trial Court and after summoning them for the purpose of further cross examination, they totally changed their version. Therefore, the trial Court has rightly convicted the appellant. There is no infirmity in the judgment. Hence, prayed for dismissing the appeal.
6. The learned counsel for the appellant alternatively has contended that the appellant is in custody for almost 7 years. The incident took place when the appellant was in the house of the complainant and had sexual intercourse with the sister of his wife and as a reformative theory, he may be -5- NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 released by giving set off and found guilty under Section 4 of the POCSO Act.
8. Having heard the arguments and on perusal of the records, the points that arise for my consideration are:
"1) Whether the prosecution proves beyond all reasonable doubt that the appellant committed forcible sexual intercourse or penetrative sexual assault on the victim girl below age of 16 years, thereby, he committed the offence punishable under Section 376(2)(n) of IPC and Section 6 of POCSO Act?
2) Whether the judgment of the trial Court call for interference?"
9. Upon hearing the rival contention of the learned counsel and in order to re-appreciate the evidence on record, it is necessary to have a cursory look into the evidence adduced by the prosecution before the Trial Court which are as under:
(a) PW.1-Vanitha who is the mother of the victim and mother-in-law of this appellant-accused has stated that the accused is none other than the son-in-law of the complainant who married her elder daughter and they have a child and -6- NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 when the husband of the complainant was died, she called her elder daughter and her husband-accused to stay in their house.
Once the victim asked to rub her back during bathing, the complainant observed that the stomach of the victim was developed and on enquiry, it was found, the accused was the cause for the same and he has said to be committed frequent sexual assault on the victim girl, due to which, she became pregnant. Then, after consulting with her brother-in-laws, the complainant filed a complaint to the Police as per Ex.P.1 and later, the police recorded the statement of the victim under Section 164 of Cr.P.C. as per Ex.P.2. They also undergone medical check and the report is as per Ex.P.3 and pachanama also prepared in the house of the accused and the photographs of her house is as per Exs.P.4 and P.5. During the cross examination, there is nothing elicited by the learned counsel for the appellant-accused to disbelieve the evidence in respect of the alleged offence committed. However, after completion of cross examination , this witness was recalled by the accused once again for the purpose of further cross examination which was held on 26.10.2017 where this witness denied the evidence given in the examination-in-chief.
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NC: 2023:KHC:23128 CRL.A No. 2176 of 2017
(b) PW.2-the victim girl, aged about 16 years has also stated that the accused is her brother-in-law and by misusing her loneliness, he has committed sexual assault on her for 15 times in both her house and her sister's house, due to which, she became pregnant. She also submits that she has given statement under Section 164 of Cr.P.C. as per Ex.P.2 and medical examination report as per Ex.P.3. The police prepared the panchanama and she identified the same. In the cross examination, the learned counsel though denied the incident but nothing elicited to disbelieve the evidence. However, this witness also recalled by the learned counsel for the accused. Subsequently on 26.10.2017, once again this witness totally changed her version and supported the accused and in the cross examination, she has admitted that if the accused will go to the jail, then there will be trouble to her sister, therefore, she has changed her version in the cross examination.
(c) PWs.3 and 4-Chennakeshava and Nagesha were brother- in-law of PW.1. They have stated that they came to know about the pregnancy of the victim-PW.2 through PW.1 and they advised to lodge a complaint.
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(d) PW.5-Chandrappa who is the Head Master of the School where the victim was studying. He has stated as per Ex.P.11-School Certificate, the date of Birth of the victim was 31.03.2000 and she is aged below 16 years. There is nothing to disbelieve the evidence of this witness.
(e) PW.6-Dr.Lohith who examined the victim and issued medical report as per Ex.P.3 and he has stated that when the victim was brought to the hospital, she was 24 to 26 weeks pregnant and this evidence is also not disputed by the accused.
(f) PW.7-Dr.Veeresh, who examined the accused and given potency certificate as per Ex.P.12.
(g) PW.8-Jyothi, the PDO of the village who gave the assessment of the house and house extract as per Exs.P.13 to P.15. The accused residing in the house of the girl and a in separate house in the same village were not in dispute.
(h) PWs.9 and 10-Kumara and Lakshmana were all panch witnesses to Exs.P.4 to P.6 and P.7. Both of them have turned hostile.
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(j) PW.11-Nanjundaiah, the Assistant Engineer who prepared the sketch of the spot and issued the sketch as per Ex.P.17 which is also not seriously disputed by the accused.
(k) PW.12-Jaffer Sharif, the Police Constable who apprehended the accused on 26.12.2016, produced before the Investigation Officer and in turn, he was remanded to the Judicial custody which is also not in dispute.
(l) PW.13-Chandregowda, ASI who received the complaint from PW.1 and registered the FIR as per Ex.P.20 and then handed over the investigation to PW.14-CPI, Sakleshpura Police.
(m) PW.14-Jagadeesh, Investigation Officer who investigated the matter and filed the charge sheet.
10. Considering the entire evidence on record, the evidence of PWs.1 and 2 clearly reveals that the accused being a son-in- law of PW.1 who married the elder daughter of PW.1 having a child stayed in the house of the complainant for sometime when the husband of the complainant was died. Later, they set up the house near to the house of the complainant and stayed in the village. It is not in dispute that
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NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 the victim- PW.2 become pregnant and gave delivery to a male child after the registering of the case. As per the evidence of PW.6-Dr.Lohith, she was pregnant of 24 to 26 months when she was taken to the hospital for examination and as per the evidence of the Head Master of the school-PW.5, her date of birth is below 16 years and she was minor. On considering the evidence of PWs.1 and 2, even if it considered that PW.2 was a consenting party to the sexual affair, but she was minor for consent or willingness is immaterial as per the law. In the evidence of PWs.1 and 2 in their examination-in-chief, they have categorically stated that the accused was the cause for the pregnancy and it was proved by the prosecution from the evidence of the doctor as well as victim. However, in the cross examination on 26.10.2017, the victim and PW.1 were changed their version and turned hostile on the ground that the life of the elder sister of the victim and elder daughter of the complainant will be under trouble. Therefore, at the request of the learned counsel, both of them were changed their version. Considering the entire evidence on record, it is clear, the appellant-accused committed sexual assault on the minor girl and made her to become pregnant. Absolutely, there is no
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NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 evidence brought on record by the learned counsel for the accused to disbelieve the evidence.
11. Though, PWs.1 and 2 were supported the case fully in the examination-in-chief and subsequently, they denied the suggestion in the cross examination, but when they recalled for further cross examination, they have changed their version in order to help the accused person. In this regard, the Hon'ble Supreme Court in the case of Vinod Kumar vs. State of Punjab reported in 2015 AIR (SC) 1206 has held as under:
"Complainant initially, in his examination-in-chief, supporting Prosecution story-Turning hostile in cross examination - Cross examination conducted after 20 months-Shadow witness giving complete sequent of demand of bribe, trap, acceptance of bribe and recovery- Trap witness deposing about recovery-Initial evidence of complainant consistently tallying with and corroborated by evidence of other witnesses-Even after the complainant turned hostile, his corroborated evidence can be relied upon for conviction."
12. The another decision of this Court in the case of Krishna vs. State of Karnataka reported in 2010 CRI.L.J. 1515 has held as under:
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NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 "Hostile Witness-Credibility- Witness fully supports the prosecution case in his examination-in-chief as to any material and relevant fact but' turns hostile to the prosecution in his cross-examination made on behalf of the accused on a later date and states contrary to his evidence in his examination-in-chief as to the said fact/the evidence of such hostile witness in his examination-in-chief has to be accepted as true if it is not shown that what he stated in his examination-in-chief as to the said fact was not stated by him at the earliest opportunity, in his statement recorded under Section 161 of Cr. PC by the Investigation Officer."
13. In view of the principle laid down in the above said judgments when the complainant and victim are fully supported the case against the accused and even if she came back for further cross examination and changed their version that can be ignored by the Court and the Court can accept the first evidence led before the Court. It appears, the accused is none other than the brother-in-law of PW.2 and son-in-law of PW.1 and to safeguard the life of her elder sister, PW.2-victim has changed her version.
14. The learned counsel for the appellant also relied upon the judgment in respect of the offence committed by the accused under Section 4 of the POCSO Act. Of course, the
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NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 alleged offence is penetrative sexual assault on the victim as per Section 3 of the POCSO Act and when there is repeated sexual assault, it attract Section 5(n) of the POCSO Act and also Section 376(2)(n) of the IPC which provides 10 years minimum sentence. In view of the background of the family of PWs.1 and 2, the sister of PW.2 and the accused who is the brother-in-law of the victim and to safeguard the life of the wife of the accused who is none other than the sister of PW.2 and by relying upon the judgment of the Co-ordinate Bench of this Court in the case of Sannathayara Maruthi vs. State in Crl.A.No.2195/2017 and connected matters, the offence is converted into Section 4 of POCSO Act and imposing sentence of 7 years that will meet the ends of justice. Taking into consideration in respect of turning hostile by PWs.1 and 2, subsequently, to support the accused and the accused is already in custody for almost 6 years 9 months, I am of the view, converting the sentence into Section 376 of IPC read with Section 4 of POCSO Act and sentenced to imprisonment for 7 years will meet the ends of justice. Accordingly, I proceed to pass the following order:
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NC: 2023:KHC:23128 CRL.A No. 2176 of 2017 The appeal is allowed in part.
The judgment of conviction and sentence passed by the Trial Court is hereby set aside and modified into Section 4 of POCSO Act read with Section 376 of IPC and reduced the sentence to 7 years imprisonment and fine of Rs.10,000/- in default of payment of fine, he shall undergo further imprisonment for 3 months for the offence punishable under Section 376 of IPC read with Section 4 of POCSO Act.
The appellant is entitled for set off under Section 428 of Cr.P.C. if he has already undergone the sentence, he is ordered to be set at liberty.
Sd/-
JUDGE GBB List No.: 1 Sl No.: 14