Karnataka High Court
Sri. Nagappa S/O Siddappa Babanagar vs The State Of Karnataka on 16 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH R
DATED THIS THE 16TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL No.200129/2015
BETWEEN:
NAGAPPA S/O SIDDAPPA BABANAGAR
AGED ABOUT 22 YEARS, OCC: DRIVER,
R/O MARAKABBANALLI VILLAGE,
TQ. B.BAGEWADI, DIST. VIJAYAPUR
... APPELLANT
(BY SRI S.S. MAMADAPUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS STATE PUBLIC PROSECUTOR,
HIGHER COURT BUILDING,
CIRCUIT BENCH, GULBARGA.
(BASAVAN BAGEWADI P.S.)
2. AMOGEPPA
S/O HANAMANTHAPPA BISANAL
AGE: MAJOR, OCC: AGRICULTURE
R/O BOMMANAHALLI,
TQ. B. BAGEWADI,
DIST. VIJAYAPUR-586115
(AMENDED V/O DATED 07.07.2022)
... RESPONDENTS
(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
R2-SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
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CONVICTION AND ORDER OF SENTENCE DATED 14.10.2015
PASSED BY THE LEARNED II-ADDITIONAL SESSIONS AND
SPECIAL JUDGE, VIJAYAPUR, IN SPECIAL POCSO CASE
NO.32/2014 AND ACQUIT THE APPELLANT OF THE AFORESAID
OFFENCES.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri S.S.Mamadapur, learned counsel for the appellant and Sri Gururaj V. Hasilkar, learned High Court Government Pleader for respondent No.1.
2. The present appeal is directed against the judgment of conviction and order of sentence passed in Special POCSO Case No.32/2014 on the file of II- Additional Sessions and Special Judge, Vijayapur, dated 14.10.2015.
3. Facts in brief for disposal of the present appeal are as under:
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Case of the prosecution reveals that the victim girl aged about 14 years, was acquainted with the accused and he lured and kidnapped her and took her to Asta village in Sangli District, where aunt of the accused by name Smt. Seetabai had a house. In the said house, the accused kept the victim girl for a period of 15 days and everyday, he had forcible sexual intercourse with her. Subsequently, she was kept in another relative's home at Tadalagi and accused had forcible sexual intercourse with her.
The chargesheet papers reveal that the victim girl was restored to the custody of her parents and thereafter, her statement was recorded and the chargesheet came to be filed for the offences punishable under Sections 363 and 376 of IPC and Section 5(1) of the Protection of Children from Sexual Offences Act, 2012, (for short, hereinafter referred to as 'POCSO Act'). During the course of investigation, 4 the accused was apprehended and he was sent to judicial custody.
4. On receipt of chargesheet, the learned Special Judge took cognizance for the aforesaid offences and secured the presence of the accused and after complying Section 207 of Cr.P.C., framed charges. The accused pleaded not guilty and therefore, the trial was held.
5. In order to prove the case of the prosecution, in all, 14 witnesses were examined on behalf of the prosecution as PWs.1 to 14 and 23 documentary evidence were relied upon by the prosecution which were exhibited and marked as Exs.P1 to P23. The documentary evidence were comprised of spot panchanama, photographs, complaint, medical report of the accused, victim's birth certificate, admission register, admission 5 application, transfer certificate, requisition of PSI, statement under Section 164 of Cr.P.C., FIR, statement of witnesses, case sheet, MLC register, extracts of MLC register, statements of PWs.12 and 13 and house extract.
6. On conclusion of recording of the evidence on behalf of the prosecution, the statement of the accused as contemplated under Section 313 of Cr.P.C., was recorded by the learned Special Judge. In the said statement, the accused did not offer any explanation of whatsoever for the alleged incident except denying all the incriminating circumstances. The accused did not choose to file any written statement as is contemplated under Section 313(5) of Cr.P.C., nor adduced any defence evidence to rebut the presumption available to the prosecution under Sections 29 and 30 of the POCSO Act. 6
7. Thereafter, the learned Special Judge heard the parties in detail and formulated two points and holding the said points in the affirmative, passed an order of conviction convicting the accused for the offences punishable under Section 363 of IPC and Section 5(1) of the POCSO Act punishable under Section 6 of the POCSO Act and passed the sentence as under:
"Accused is hereby sentenced to
undergo rigorous imprisonment of 7
(seven) years for the offence punishable U/s.363 of IPC and shall pay a fine of Rs.5,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of 1½ months.
Further, the accused is hereby
sentenced to undergo rigorous
imprisonment for a period of 10 (ten) years for the offence punishable Sec.5(1) of Protection of Children from Sexual Offences 7 Act 2012 punishable U/s.6 of Protection of Children from Sexual Offences Act 2012 and shall pay a fine of Rs.10,000/-. In default of payment of fine, he shall further undergo simple imprisonment for a period of three months.
Substantial sentences of
imprisonment shall run concurrently,
whereas default clause sentences shall run one after the other.
As provided U/s.428 of CrPC, the period of detention, already undergone by this accused in this case, is hereby given set off out of his substantial sentence.
8. Being aggrieved by the same, the appellant has filed the present appeal on the following grounds:
• "That the impugned judgment of
conviction and order of sentence
convicting the appellant for the
offence punishable under section 363 of the IPC as well as section 5(1) of 8 the POCSO Act is against the law, evidence, facts and probabilities of the case. The same being legally unsustainable is liable to be set aside. • That the learned judge having regard to the facts and circumstances of the case and the material brought on record ought to have held that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubt and consequently ought to have acquitted the appellant of all the charges.
Reasons assigned and the conclusion arrived therein by the trial court are unsustainable in law.
• That the learned judge erred in law in holding that the appellant is guilty of an offence charged. The learned judge failed to appreciate that the necessary ingredients to attract penal provisions are patently absent. As 9 such the impugned judgement of conviction being bad in law is liable to be set aside.
• That the learned Sessions Judge failed to appreciate that the evidence on record is wholly insufficient to record a finding of conviction against the appellant for the alleged offences. As such also the impugned judgment and conviction is liable to be set aside. • That the learned judge has committed a grave error in law in concluding that the appellant has committed an offence under section 5(i) of the POCSO Act 2012. In arriving at such conclusion the learned judge has not appreciated the material evidence on record in right perspective which has resulted in miscarriage of justice. • That the learned judge failed to see that the evidence of the victim PW-3 is not worth believing in as much as 10 she has not come out with the truth before the Hon'ble Court. That the learned judge failed to see that the victim PW-3 has given a clear go bye to her statement recorded under section 164 (5) of the Criminal Procedure Code by the learned JMFC B. Bagewadi and has made out a new case during the trial. Hence the learned Special Judge ought not to have relied upon the self interested and false testimony of PW-3 to convict the appellant for the offences alleged.
• It is submitted that the penal
provisions of section 5(i) of the
POCSO Act 2012 do not get attracted to the case on hand. It is relevant to mention that the victim PW-3 in her statement recorded under section 164 (5) of the Criminal Procedure Code has clearly stated that she had married the appellant and had sexual 11 intercourse with him out of her own will and consent. Hence sexual intercourse between husband and wife cannot be brought under purview of POCSO Act even though the wife is below the age of 18 years. At the most the appellant may be guilty of an offence under Prevention of Child Marriage Act. As such also the judgement of conviction and order of sentence being legally unsustainable is liable to be quashed.
• That it is humbly submitted that the conviction of the appellant under section 363 of IPC being bad in law is liable to be set aside. The material on record does not make out a case for conviction of the appellant for the aforesaid offence. The learned judge failed to see that the victim on her own bill had accompanied the appellant and stayed together for 45 days as husband and wife. She did 12 not raise any hue and cry during such period. However the learned special judge without adverting to these aspects of the matter has erroneously convicted the appellant which has resulted in gross of failure of justice. • Even otherwise and without prejudice to the above contention it is submitted that the learned Special Judge erred in law in imposing maximum sentence for the offence punishable under section 363 of the IPC. It is submitted that the quantum of sentence imposed upon the appellant is harsh and highly disproportionate having regard to the facts and circumstances of the case. • Looking from any angle the impugned judgement of conviction and order of sentence being legally unsustainable is liable to be set aside.
13• On these among other grounds to be urged at the time of hearing the impugned judgement of conviction and order of sentence is liable to be set aside."
9. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the learned Trial Judge committed a grave error in convicting the accused/appellant and prayed for allowing the appeal.
10. He pointed out that the medical evidence on record is not supportive except fixing the age of the victim girl between 15 and 16 years. He also pointed out that in the Medical Certificate itself there is clear mention that the victim girl refused to undergo medical examination and therefore, Section 164A of Cr.P.C., has not been complied with and in the absence of any medical evidence corroborating the case of the prosecution, the learned Trial Judge ought 14 not to have convicted the accused for the offence punishable under Section 6 of the POCSO Act. Therefore, to that extent, the appeal needs to be allowed.
11. He further pointed out that at the most, the offences alleged against the appellant can be scaled down to Section 8 or Section 12 of the POCSO Act and not under Section 6 of the POCSO Act and sought for modification of the judgment of conviction.
12. Per contra, learned High Court Government Pleader vehemently contended that the material on record would clearly indicate that the victim girl was aged 14 years as on the date of the incident. As such, removal of victim girl from the custody of her parents would complete and conclude the offence punishable under Section 363 of IPC.
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13. He also argued that the fact remains that the victim girl was taken to the house of Smt. Seetabai at Asta village in Sangli District and both the accused and the victim girl stayed in the house of Smt. Seetabai for about 15 days and thereafter, she was shifted to Tadalagi and the victim girl was subjected to forcible sexual intercourse all those days by the accused which clearly establishes all the ingredients to attract the offence under Section 6 of the POCSO Act and sought for dismissal of the appeal.
14. He also argued that mere non-willingness of the victim girl for medical examination has not resulted in any serious dent to the case of the prosecution, inasmuch as, it is the oral testimony of the victim girl, in a matter of this nature that would prevail than any corroborative evidence. 16
15. He also contended that if the version of the victim girl is not shaky and credible, statement of the victim girl alone can be the basis for recording an order of conviction in a matter of this nature and thus, non-cooperation of the victim girl for detailed medical checkup is not fatal to the case of the prosecution and sought for dismissal of the appeal.
16. In view of the rival contentions of the parties, the following points would arise for consideration:
1) Whether the prosecution has successfully established the offences alleged against the appellant?
2) Whether the impugned judgment is suffering from legal infirmity or perversity?
3) Whether the sentence is excessive? 17
4) What order?
17. In the case on hand, the victim girl is examined as PW.3. She has specifically deposed before the Court that she was acquainted with the accused. She was enticed by the accused to move with him and in the pretext of taking her outside, she was taken out from her house and she was taken to Asta village of Sangli District and she was kept in the house of Smt. Seetabai. She also deposed that Smt. Seetabai enquired the accused about her and the accused falsely represented to Smt. Seetabai that she has got a relative in Asta village and after staying in the house of Smt. Seetabai for a brief period, they would go to the relatives house and then, return to the Village. Smt. Seetabai believed the version of the accused and permitted them to stay in her house. 18
18. Later on, the accused took her to Tadalagi village of Indi Taluk wherein his mother's maternal house is situated and kept her there for about 20 days. She further deposed that during her stay both in Asta and Tadalagi village, the accused had forcible sexual intercourse with her despite her resistance.
19. She also deposed later on, the police visited Tadalagi village, arrested the accused, took the victim to custody and brought them to Basavana Bagewadi Police Station and her father came there and took her.
20. She also stated that her statement was recorded by the police and also before the learned Magistrate and she was taken to B.L.D.E., Hospital, Vijaypur and she was subjected to examination twice. She further deposed that the accused enticed her and had forcible sexual intercourse with her for a period of 19 45 days, but the doctor did not collect her clothes in the hospital during the course of her examination. She sought for action against the accused.
21. In her cross-examination, except suggesting that no incident as is deposed to by her in the examination-in-chief occurred, no other material is elicited so as to disbelieve the oral testimony of the victim girl.
22. Father of the victim girl is the complainant. He has been examined as PW.4. He deposed that the victim girl was not found in the house and therefore, himself, his wife and others searched for the victim girl and later on, he received the information from the police that his daughter is traced and further, he went to the police station and enquired the victim girl who narrated the incident wherein the accused took the victim girl to Asta village at the first instance and 20 Tadalagi village later on and had forcible sexual intercourse with her.
23. In his cross-examination, it is elicited that on 12.09.2014 he had lodged the complaint and the police recorded his statement four days later. It is also elicited that the incident has taken place about 8 months earlier and after 40 days of lodging of the complaint, the police called him and informed him that his daughter is traced. It is further elicited that the police recorded his further statement. He denied the suggestion that he has filed a false complaint and given false evidence against the accused.
24. The important witness namely Smt. Seetabai has not supported the case of the prosecution and despite treating her as hostile witness, the prosecution is unable to elicit any useful information in her evidence.
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25. The other witnesses available on record is in the nature of panch witnesses, doctor and police personnel.
26. The doctor and police personnel have supported the case of the prosecution, so also the punch witnesses to an extent.
27. In the statement recorded under Section 313 of Cr.P.C., to a specific question as to whether the accused was acquainted with the victim girl vide question No.8, the accused has denied even the acquaintance of the victim girl and except that no other factual aspect is found so as to disbelieve the case of the prosecution. Further, for question No.60 about Smt. Seetabai's residence in Asta village, the accused admitted that Smt. Seetabai is his aunt and she has house in Asta village.
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28. As already noticed, no explanation is forthcoming in writing under Section 313(5) of Cr.P.C., by the accused to place his version on record nor any defence evidence is adduced.
29. The medical evidence is in the form of oral testimony of the doctor and also extracts of MLC register are marked as Exs.P18 and P19. The Medical Certificate is marked as Ex.P20. The medical report of the accused is marked as Ex.P7. The doctor who has given report is examined as PW.11. He has specifically stated that despite the best advise, the victim girl refused to undergo detailed medical examination and the same is recorded in Exs.P18 and P19 which are the MLC register.
30. This Court perused the oral testimony of the victim girl and that of the complainant and other witnesses including the doctor and the investigating 23 officer meticulously, in order to re-appreciate the material evidence on record in the light of the arguments put-forth on behalf of the appellant.
31. It is no doubt true that there is a clear and categorical mention in the medical records that the victim girl refused to undergo detailed medical examination.
32. In this regard, the argument of the appellant is that if there is non-compliance of mandatory provision of Section 164A of Cr.P.C., the benefit should enure to the accused.
33. In order to appreciate the said argument advanced on behalf of the learned counsel for the appellant, it is necessary to cull out section 164A of Cr.P.C., which reads as under:
"164A. Medical examination of the victim of rape.- (1) Where, during the 24 stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a 25 report of his examination giving the following particulars, namely,-
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars, in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person 26 competent to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.
(6) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf."
34. No doubt, on such perusal of the above provision, it is clear that Section 164A of Cr.P.C., 27 envisages examination of victim in a case where the offence of committing rape or attempt to rape is investigated. However, the wordings used therein, would not clearly envisage that if no such examination is conducted, what is the effect thereof.
35. On judicious consideration of the above provision, one cannot conclude that non-willingness of a victim to subject her for detailed medical examination would result in hampering the case of the prosecution only on that ground. Nor it should be construed that non-examination of victim girl may be on account of non-cooperation of victim girl should act prejudicial to the case of prosecution.
36. Further, the said provision of law is enacted primarily to protect the dignity of victim of rape or attempted rape and with an intention to allow the 28 investigation officer to collect the medical evidence at the earliest.
37. At any rate, non-compliance of Section 164-A Cr.P.C., cannot be made use of by the accused.
38. In the case on hand, the accused has gone to the extent of denying the very acquaintance of the victim girl. The material on record however shows that the victim girl is traced along with the accused and they have been brought to Bagewadi Police Station.
39. Further, the victim girl has specifically deposed before the Court on oath that after abducting her from the custody of her parents, the accused took her to Asta village in Sangli District where PW.12- Smt. Seetabai's house is situated and there he kept her for about 15 days. Thereafter, she was taken to Tadalagi village wherein she was kept for about 20 days.
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40. Before the doctor also, while narrating the history, the victim girl has stated that the accused enticed her, took her and had the company of her for a period of 45 days.
41. Ex.P16 is the case sheet maintained in B.L.D.E. Hospital, Vijaypura. In the said file, while recording the history, the doctor has recorded as under:
"Alleged enticement 45 days back by Nagu Siddappa Babanagar went to Maharastra and came back 2 days."
42. It is also noted in the very same certificate that hymen is ruptured and stains are available which are healed. It is also noted that there is an old healed tear/scar. No doubt, author of Ex.P.20- Dr. Dharmaraya Ingale has not been cited and examined by the prosecution. Just because the author 30 of Ex.P.20 is not examined, the evidentiary value thereof cannot be discounted in toto more so, when the appellant wants to rely on a portion of Exs.P.16 to
20. Therefore, non-willingness of the victim girl to have a detailed medical examination and subjecting her to detailed medical examination and noting thereof in the medical certificate issued by the doctor may not be treated as causing a serious prejudice to the case of the prosecution so as to give benefit in favour of the appellant.
43. Moreover, it is settled principle of law and requires no emphasis that oral testimony of the victim of a rape alone could be sufficient to record an order of conviction, if such a testimony inspires confidence of the Court. In the case on hand, admittedly, the victim girl did not disclose any animosity or enmity insofar as the accused so also the parents of the victim girl. Why would a girl of 14 years age make a 31 false allegation as against an unknown stranger that too of a nature where her chastity is put to gambling, is a question that remains to be unanswered on behalf of the appellant.
44. The fact that at the earliest point of time before the Doctor, the victim girl taking out the name of accused and reveal the history as to what happened for a period of 45 days, assumes significance while appreciating the case of the prosecution. Further, while recording the accused statement, accused had gone to the extent of talking the very acquaintance of the victim girl which shows that somehow he wants to escape from the clutches of law. No other evidence is forthcoming on record to disbelieve the case of the prosecution either.
45. Accordingly, this Court is of the considered opinion that the trial Court has rightly appreciated the 32 material evidence on record while recording a finding that the accused is guilty of the offence alleged against him under Section 363 of IPC and for the offence under Section 6 of the POCSO Act.
46. Therefore, from the above discussion, this Court does not find any illegality, infirmity or perversity of whatsoever nature in reaching out such a finding by the trial Court even after re-appreciation of the material evidence on record.
47. In view of the foregoing discussion point Nos.(1) and (2) are answered in affirmative and negative respectively.
48. The Trial Court has convicted the accused/appellant for the offence punishable under Section 6 of the POCSO Act and has granted 10 years imprisonment which is the minimum prescribed punishment. Insofar as the offence under Section 6 of 33 the POCSO Act is concerned, there is no material available on record to interfere with the just sentence passed by the trial Court. Hence, point No.(3) is answered in negative.
Regarding point No.(4)
49. In view of the finding of this Court on point Nos.1 to 3 above, the following order is passed:
ORDER The Criminal Appeal is meritless and hereby dismissed.
The sentence of imprisonment ordered by the trial Court is suspended by this Court vide order dated 16.02.2016.
Therefore, time is granted for the appellant to surrender before the trial Court to serve remaining part of sentence till 04.03.2023, failing which, the trial 34 Court shall secure the presence of the accused and send him to prison.
Sd/-
JUDGE NB*/ VNR