Karnataka High Court
Somashekar S/O Rayappa Yalurotti And ... vs The State Of Karnataka Through on 1 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 Crl.A.No.200064/2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200064 OF 2017 (374 )
BETWEEN
1. SOMASHEKAR S/O RAYAPPA YALUROTTI
AGE: 19 YEARS, OCC: STUDENT
2. DEVAPPA @ DEVINDRAPPA
S/O BHEEMARAYA YELUROTTI
AGE: 20 YEARS, OCC: STUDENT
3. BASAVARAJ S/O HANMANTH BANTANOOR
AGE: 19 YEARS, OCC: STUDENT
ALL R/O MANGALOOR, TQ. SURPUR
DIST. YADGIRI
...APPELLANTS
(BY SRI S.B. SANGOLGI, ADVOCATE)
AND
THE STATE OF KARNATAKA THROUGH
SHORAPUR POLICE STATION
DIST. YADGIRI
(REPRESENTING BY LEARNED ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH)
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
2 Crl.A.No.200064/2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C. PRAYING TO, ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT OF CONVICTION PASSED ON 06.04.2017 IN SPL.
CASE (POCSO) NO.50/2016 BY THE SESSIONS JUDGE, YADGIRI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the accused challenging the judgment of conviction and order of sentence passed by the Sessions Judge, Yadgiri in Special Case (POCSO) No.50/2016 dated 06.04.2017 for the offences punishable under Sections 376, 511 354A(i) and (ii), 504, 506 read with Section 34 of IPC and under Section 8 of the POCSO Act.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are as under:
3 Crl.A.No.200064/2017
That on 30.01.2016 near the cross of Devalgudda at about 12 in the noon when the victim was return after completing her computer classes at Sri Basaveshwar Computer School by getting down from the bus at Timmapur cross, accused No.1 called her from behind and asked her to sleep and the accused caught hold of her hands and dragged her and attempted to commit sexual assault on her. It is also asserted that they have also touched her body and outraged her modesty and when she cried, they threatened her with dire consequences. After hearing her cry, Paramanna who was the worker of the garage and the mother of the victim Mahadevi rushed to the spot and on seeing them, the accused ran away from the spot leaving the victim girl. Then, the victim girl went to the house and after return of her father, she narrated the incident and then, filed the complaint before the Shorapur police. On the basis of the complaint, a case was registered by the Shorapur police and after investigating the matter, the charge-sheet came to be filed for the offences punishable under Sections 376, 511 4 Crl.A.No.200064/2017 354A(i) and (ii), 504, 506 read with Section 34 of IPC and under Section 8 of the POCSO Act. After submission of the charge-sheet, the learned Sessions Judge has taken the cognizance of the offences and meanwhile the accused were arrested and were enlarged on bail. They were represented by their counsel and prosecution papers were furnished to them. The charge was framed against the accused and same was read over and explained to them and they pleaded not guilty.
4. To prove the guilt of the accused, the prosecution has examined in all ten witnesses as P.W.1 to P.W.10 and relied on eight documents marked at Exs.P.1 to P.8. Then the statement of the accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of the accused is of total denial and they did not choose to lead any oral and documentary evidence in support of their defence.
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5. After hearing the arguments and after perusing the oral and documentary evidence, the learned Sessions Judge has acquitted the accused for the offences punishable under Sections 376, 511 and 506 read with Section 34 of IPC. However, he has convicted the accused/appellants for the offence punishable under Section 8 of the POCSO Act and under Section 354A read with Section 34 of IPC by imposing imprisonment and fine for the offences under Sections 354A of IPC and 8 of the POCSO Act.
6. Being aggrieved by this judgment of conviction and order of sentence, the accused are before this Court by way of this appeal.
7. Heard the arguments advanced by the learned counsel for the appellants/accused and the learned High Court Government Pleader for the respondent/State. Perused the records.
8. The learned counsel for the appellants/accused would contend that the alleged incident is said to have taken 6 Crl.A.No.200064/2017 place at 12 in the noon on road and it is practically impossible to believe that there was an attempt on victim to rape her on a public road. He would also assert that P.W.2 is the mother of the victim and her present at the spot itself creates doubt and P.W.7 is the other interested witness. He would assert that there are no other eyewitnesses and the witnesses examined were relatives. He would contend that the evidence lead by the prosecution do not inspire confidence of the Court and the ingredients of the offences under Section 8 of the POCSO Act as well as Section 354A of IPC are not substantiated by the prosecution. Hence, the would contend that the learned Sessions Judge on the self- interested testimony of victim and her relatives proceeded to convict the accused/appellants which resulted in miscarriage of justice. As such, he would seek for allowing the appeal by setting aside the judgment of conviction and order of sentence by acquitting the appellants.
9. Per contra, the learned High Court Government Pleader would support the judgment of conviction and order 7 Crl.A.No.200064/2017 of sentence passed by the learned Sessions Judge. He would contend that P.W.1 is the victim and P.W.2 and 7 are the eyewitnesses, who have supported the case of the prosecution. He would contend that their presence at the spot is natural and merely because they are relatives, their evidence cannot be discarded unless their evidence is surrounded by suspicion. He would assert that there are no contradictions or omissions forthcoming in the evidence and all these witnesses stood the test of the cross-examination and there is no reason to discard their evidence. Hence, he would assert that the learned Sessions Judge has appreciated all these aspects in proper perspective and has rightly convicted the accused by imposing minimum sentence prescribed under the law. Hence, he would assert that the judgment of conviction and order of sentence does not call for any interference by this Court.
10. Having heard the arguments and after perusing the oral and documentary evidence, now the following point would arise for my consideration:
8 Crl.A.No.200064/2017
"Whether the judgment of conviction and order of sentence passed by the learned Sessions Judge in Special Case (POCSO) No.50/2016 dated 06.04.2017 is perverse, arbitrary and erroneous so as to call for any interference by this Court?"
11. As per the case of the prosecution, on 30.01.2016 at about 12 noon the victim girl after getting down from the bus at Timmapur cross at Shorapur, after attending the computer classes at Basaveshwar Computer School, she was returning to her house. It is alleged that the accused called her requesting her to have favour of sleeping with them and accused No.2 caught hold of her hand and dragged her and other accused closed her mouth and slapped. It is further specifically alleged that accused No.3 caught hold of her Veil and Chudidara and dragged her and they committed sexual assault on the victim girl by using criminal force by physically touching her body with sexual intention. The victim girl is said to be a minor, was aged about 17 years and Ex.P.3 is the SSLC certificate which 9 Crl.A.No.200064/2017 discloses that her date of birth is 19.06.1999. Ex.P.4 is the transfer certificate and same date is given. The alleged offence is said to have been committed on 30.01.2016 and if her date of birth is taken into consideration, then it is evident that as on the date of offence, she is aged less than 17 years and hence, she is a minor. This aspect is not seriously disputed by the defence. During the course of examination of the victim or prosecution witnesses, these documents are not challenged and no dispute was raised regarding the age of the victim. Hence, the prosecution is successful in proving the fact that the victim is aged less than 18 years and the provisions of the POCSO Act are attracted.
12. The victim is examined as P.W.1 and she has deposed that on 30.01.2016 at 12 noon while she was returning to her house, after getting down from the bus at Timmapur cross, near ACC Cement shop, accused No.1 called her from the back side while accused Nos.2 and 3 teased her and when she questioned, accused No.2 closed her mouth, accused No.1 slapped her and accused No.3 caught hold of 10 Crl.A.No.200064/2017 her Chudidar and Veil and dragged her and when she cried, her mother Mahadevi and Paramanna rushed to the spot.
13. Her further evidence discloses that the incident took place at 12 noon and thereafter, she went to the house and after her father returned to the house, she narrated the incident and since her reputation was involved, she lodged a complaint belatedly at about 11 p.m. This conduct of the victim cannot be said to be abnormal as her character was at the stake and she will think twice before lodging such a complaint, as she is required to go through ordeal process in the police station as well as in the Court. Her further evidence discloses that on the next day, she has also shown the spot to the police and the police have drawn the mahazar. She has also deposed that her statement under Section 164 of Cr.P.C. was also recorded by the Magistrate. Though this witness was cross-examined at length, nothing was elicited so as to impeach her evidence except formal denial. A simple suggestion is made that considering the development of family of accused No.1, a false complaint 11 Crl.A.No.200064/2017 was lodged. But it is hard to accept that a false complaint came to be lodged at the stake of her humiliation and character.
14. The evidence of P.W.1 is again supported by the evidence of P.W.2 who is the mother of the victim. Her evidence discloses that about 9 months back, she was proceeding at 12 O' clock to the garage of Paramanna and she heard cry of her daughter and she along with Paramanna rushed to the spot and found that the accused were dragging hands of her daughter and on seeing them, they fled away from the spot. This witness was cross-examined at length, but except a simple formal denial, nothing worthy was elicited in the cross-examination.
15. P.W.7 is an eyewitness and his evidence is supporting the case of the prosecution. He deposed that about 10 months back at 12 noon, he was working in the garage and he seen that accused No.1 along with accused Nos.2 and 3 dragging the victim girl and assaulted her and 12 Crl.A.No.200064/2017 when he rushed to the spot, they fled away. He was also cross-examined, but the cross-examination reveals that it is a formal denial and nothing worthy was elicited in the cross.
16. The evidence of P.W.1, P.W.2 and P.W.7 corroborate each other. P.W.5 is the medical officer and his evidence discloses that the victim has not given the consent for her medical examination. But any how it is the fact that there is no rape and for the offence under Section 376 of IPC, the accused was acquitted and that portion of the order was not challenged by the State. P.W.4 and 6 are the mahazar witnesses and both these witnesses have deposed regarding drawing the spot mahazar as per the spot shown by the victim girl.
17. P.W.8 has deposed regarding issuing of Exs.P.3 and P.4 along with a letter as per Ex.P.6. These documents were not disputed in the cross-examination.
18. P.W.9 has deposed regarding the registering the complaint and issuing FIR while P.W.10 is the investigating 13 Crl.A.No.200064/2017 officer. Ex.D.1 came to be relied by the accused. But in what way it is relevant is not at all forthcoming. This letter Ex.D.1 discloses that in 2015-2016, specially in January 2016, except Government holidays and Sundays, the colleges have functioned normally. But why this document is relied is not at all forthcoming and no arguments have been advanced in this regard. Even 313 of Cr.P.C. of the accused in this regard is silent and they did not explain the relevancy of Ex.D.1 and for what context it is relied.
19. The oral and the documentary evidence on record clearly establish that the accused have dragged the victim and caused sexual harassment which is punishable under Section 354A of IPC. The ingredients of Section 354A of IPC are directly applicable to the case in hand. Further, the accused have not only dragged the victim but pulled her Veil and Chudidar by dragging her and their intention in touching the victim girl is Manifest and hence, the sexual assault can be inferred.
14 Crl.A.No.200064/2017
20. Section 7 of the POCSO Act defines sexual assault and the ingredients clarifies that if a person with sexual intend touches the private parts of the child or does any act with sexual intent, which involves physical contact is said to have committed sexual assault. Section 354A of IPC and Section 7 of the POCSO Act are synonymous and Section 42 of the POCSO Act states that if any person commits offence under Section 354A of IPC which is an offence under the POCSO Act, then the accused can be punished either under Section 354A of IPC or under the provisions of the POCSO Act which provides punishment of greater in degree. The offence under Section 8 of the POCSO Act is punishable with imprisonment which shall not be less than three years but which may extend to five years with fine. The offence under Section 354A of IPC is punishable with rigorous imprisonment for a term which may extend to three years or with fine or both. Hence, when compared the offence under Section 354A of IPC and Section 8 of the POCSO Act, it is evident that the punishment prescribed under Section 8 of 15 Crl.A.No.200064/2017 the POCSO Act is grater in degree and hence, the accused are required to be punished under Section 8 of the POCSO Act, but not for both the offences. The learned Sessions Judge has convicted the accused for both the offences, ignoring the provisions of Section 42 of the POCSO Act and imposed sentence for both the offences which is not permissible. Considering these aspects, the sentence imposed for the offence under Sections 354A read with Section 34 of IPC needs to be set aside and the accused are required to be undergo sentence of imprisonment only for the offence under Section 8 of the POCSO Act as imposed by the Trial Court.
21. The learned Sessions Judge has appreciated the oral and documentary evidence and has rightly convicted the accused for the offences punishable under Section 354A of IPC and Section 8 of the POCSO Act. However, has committed an error in imposing the sentences for both the offences by overlooking the provision of Section 42 of the POCSO Act. Under such circumstances, the sentence of 16 Crl.A.No.200064/2017 imprisonment so far as it relates to offence under Section 354A of IPC needs to be set aside. Since the learned Sessions Judge has imposed minimum sentence for the offence under Section 8 of the POCSO Act, the question of interference by in the said order of sentence for the offence under Section 8 of the POCSO Act does not arise at all. Considering these facts and circumstances, the point under consideration is answered in the partly affirmative so far as it relates to imposing sentence for the offence under Section 354A of IPC. Accordingly, I proceed to pass the following:
ORDER The appeal stands allowed in part so far as it relates to imposition of sentence for the offence punishable under Section 354A of IPC.
The judgment of conviction and order of sentence passed by the learned Sessions Judge, Yadgir in Special Case No.50/2016 dated 06.04.2016 stands confirmed so far as it relates to offence under Section 8 of the POCSO Act.17 Crl.A.No.200064/2017
However, the sentence of imprisonment and fine for the offence under Section 354A read with Section 34 of IPC is set aside and sentence portion is confined for the offence under Section 8 of the POCSO Act alone and rest of the order of the learned Sessions Judge stands confirmed so far as it relates to offence under Section 8 of the POCSO Act.
Send back the Trial Court records to the learned Sessions Judge along with copy of this judgment with a direction to the Trial Court to secure the presence of the accused for serving the sentence.
Sd/-
JUDGE RSP