Karnataka High Court
Imamsab S/O Mohammadsab Nadaf vs The State Of Karnataka on 9 July, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100208/2020
BETWEEN:
IMAMSAB S/O MOHAMMADSAB NADAF,
AGE: 25 YEARS, OCC: COOLIE WORK,
R/O: YALIWAL, TQ: KUNDAGOL,
NOW R/O. KUNNUR, TQ: SHIGGAON,
DIST. HAVERI.
... APPELLANT
(BY SRI. SRINAND A. PACHHAPURE, ADV.)
AND:
THE STATE OF KARNATAKA
THROUGH TADAS POLICE STATION,
NOW REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDITIONAL S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN SPECIAL
S.C./S.T. C. NO.31/2017 AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 08.01.2020
PASSED BY THE COURT I ADDL. DISTRICT & SESSIONS &
SPECIAL JUDGE, HAVERI IN SPECIAL S.C./S.T. C. NO.31/2017
AND ACQUIT THE APPELLANT FROM THE OFFENCES
PUNISHABLE UNDER SECTION 376(2)(i) OF IPC AND SECTIONS
4 AND 6 OF POCSO ACT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel Sri.Srinand A. Pachhapure for the appellant - accused and the learned Additional S.P.P. Sri.V.M.Banakar for the respondent - State.
2. Though this case is listed for admission and for hearing on I.A. No.2/2020, with the consent of learned counsels appearing for the parties, the same is taken up for final disposal.
3. This appeal has been preferred by the appellant - accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge and Special Judge, Haveri in Special S.C./S.T. C. No.31/2017 dated 08.01.2020 whereunder the appellant - accused was convicted for the offence punishable under Section 376(2)(i) of the Indian Penal Code (hereinafter referred to as IPC) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO Act).
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4. The factual matrix of the case as alleged in the case of the prosecution are that on 30.04.2017 at about 09:00 a.m., the minor victim went to Agadi Thota along with her brother to pluck the cashew fruits. Accused was working in the said Agadi Thota, stopped the victim and her brother C.W.7 near the gate and took the minor victim by assuring that he will give the cashew fruits and thereafter, he took her inside the Kallangadi Kutir (refreshment shop). When she asked why he brought her there, he made her to lay down on the floor, removed her under garment and committed penetrative sexual assault, with the knowledge that the victim was a minor and belonged to Hindu Lamani community i.e., Scheduled Caste and the accused belonging to Muslim community and touched the body of the minor victim inappropriately and committed aggravated penetrative sexual assault with an intention to dishonour the Lamani community and thereby he has committed the offence. On the basis of the complaint, a case has been registered in Crime No.46/2017. Thereafter, after investigation charge sheet has been filed.
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5. It is the submission of the learned counsel for the appellant - accused that though there is no material, the Trial Court without properly appreciating the facts and the law has come to a wrong conclusion and has wrongly convicted the accused.
6. It is his further submission that Ex.P-20 and the evidence of P.W.13, the Doctor who has examined the victim clearly goes to show that the accused has not committed any penetrative sexual assault. Even the hymen was intact and no other injuries were found over the private part or other parts of the body of the victim. It is his further submission that there are no eyewitnesses to the alleged incident and the only evidence which is available is that of the victim. Even it does not corroborate with the medical evidence. When the case has been made out by the prosecution that the accused has committed penetrative sexual assault on the victim and when the medical evidence is totally contradictory to the statement of the victim, under such circumstances, it clearly goes to show that the false case has been registered and the benefit of doubt ought to have been given to the accused. :5: It is his further submission that initial burden always lies upon the prosecution to establish the ingredients, only thereafter the presumption as contemplated under Section 29 of POCSO Act and the mental status of the accused as per Section 30 of the POCSO Act can be gathered. Without being any material, the Trial Court has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
7. Per contra, the learned Additional S.P.P. vehemently argued and submitted that the accused has taken the minor girl and has committed aggravated penetrative sexual assault. P.W.2 the victim has explained before the Court and she has categorically deposed before the Court the act of the accused and there is nothing to discard the evidence of the said witness. Even the circumstantial evidence also clearly stated the circumstances immediately after the alleged incident. Under such circumstances, the Trial Court has come to a right conclusion and has rightly convicted the accused. It is :6: his further submission that non-examination of the Investigating Officer is not fatal to the case of the prosecution. The evidence of the victim is also corroborated with the evidence of P.W.3, who has accompanied with the victim. It is his further submission that the accused has been involved in a serious offence and he has committed an offence under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act knowing fully well that the victim is a girl belonging to Lamani community and with an intention to dishonour her community, the accused has committed the alleged offence. On these grounds, he prayed to dismiss the appeal.
8. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records, including the Trial Court records.
9. To prove the case of the prosecution, prosecution has got examined as many as 16 witnesses. P.W.1 is none other than the father of the victim. In his :7: evidence, he has deposed that the victim is his daughter and he belongs to Hindu Lamani community. The victim was studying in 4th standard and his son was studying in 5th standard and the victim was aged about 10 years. He has further deposed that he received a telephone call from Ramesh at about 11:00 a.m. that the victim has been raped and she is in problem and immediately he went to Agadi Thota on bicycle and there he saw the victim weeping near the gate and he questioned her and she narrated the incident. He has also observed that there was injury on her chin, elbow and near the waist and they searched for the accused and they did not find him. Thereafter, they went to the Police Station and there they filed the complaint. During the course of cross-examination of this witness, he has admitted that the said Agati Thota is 50 acres in extent and that there are horticulture planting and that the said Thota has been made as a visitors' place. He has shown his ignorance why people will come there. Other suggestions have been denied by this witness.
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10. P.W.2 is the victim. In her evidence she has deposed that about 10 months back on 30.04.2017 at about 07:30 a.m. herself and her brother Shrikant went on a bicycle to Agadi Thota to eat cashew fruits and there they reached at about 08:00 a.m. When they were waiting near the gate, the accused talked with them, when the victim and her brother told that they want to have the cashew fruits, the accused made her brother Shrikant to stand near the gate to observe whether anybody is coming and thereafter he took her inside the said garden. He took her to a hut and removed her innerwear and when she refused, he threatened her by showing the knife and by holding her neck, he made her to remove innerwear. She told that her father is there near the garden but he told that her father is not there and removed her inner wear and made her to lay down, gagged her mouth removed his innerwear and thereafter, committed penetrative sexual assault. After some time, by seeing that something was happened to his sister, his brother Shrikant came and two or three other persons have also came to the spot. The accused ran away from that place. She had sustained :9: injuries on her chin, elbow and near the waist and she explained incident to them. When she told that her private part is paining, they searched for the accused. In the meantime, her father came and he also enquired. During the course of cross-examination of this witness, nothing has been elicited so as to discard the evidence of this witness.
11. P.W.3 is the brother of the victim. He has reiterated the evidence of P.W.2 and nothing has been elicited so as to discard his evidence. P.W.4 is the mother of the victim. She has also reiterated the evidence of P.W.1.
12. P.Ws.5 and 6 are the spot mahazar panchas to Ex.P-7 and hand sketch map, Ex.P-8. P.W.7 is the seizure mahazar pancha of M.Os.1 to 4 and 7 and 8 as per Exs.P-9 and P-10. P.W.8 is the circumstantial witness, who saw the victim weeping near the gate and he made an enquiry and thereafter he informed the said fact to P.W.1. P.W.9 has also reiterated the evidence of P.W.8. P.W.10 is a hearsay witness that after hearing the victim, he has drafted the : 10 : complaint as per Ex.P-1. P.Ws.11 and 12 are the owners of the land and they have not supported the case of the prosecution and they have been treated as hostile.
13. P.W.13 is the Doctor, who treated the victim. In his evidence, he has deposed that on 01.05.2017 at about 03:00 a.m. he examined the victim girl, who was brought by WPC-516 with her mother, with a history of sexual assault and he noticed contusion over the left side of chin and right elbow, hymen intact and there were no injuries on external geneteria. He collected vaginal swab, cervical swab, cloths, nail clippings of victim and sent for FSL through Police and he also issued certificate as per Ex.P-20. He has opined that no evidence of recent sexual intercourse and he has given his opinion as per Ex.P-22.
14. P.W.14 is the ASI, who accompanied the victim to the learned Magistrate for recoding the victim's statement under Section 164 of Cr.P.C. P.W.15 is the PSI who received the complaint, as per Ex.P-1 and has issued the FIR by registering the case in Crime No.46/2017. P.W.16 is the Assistant Director, RFSL, Davanagere. He : 11 : has tested the articles which were sent to him and has given the report as per Ex.P-21.
15. On perusal of the materials which has been produced, though the victim P.W.2 has categorically deposed before the Court that the accused took her inside the garden to a hut and there he committed the penetrative sexual assault and was holding her hands and mouth. But on perusal of the evidence of P.W.13, the Doctor, he has clearly deposed before the Court that hymen was intact, there were no injuries on external geneteria and has given the opinion that there is no evidence of recent sexual intercourse. Even the RFSL report Ex.P-21 also indicates that there were no stains over the articles which have been seized by the prosecution.
16. In order to constitute an aggravated penetrative sexual assault, the ingredients which have been stated under Section 5 of the POCSO Act has to be satisfied. Until and unless the prosecution establishes the fact that the accused has committed an aggravated : 12 : penetrative sexual assault on the minor victim, then under such circumstances, accused can be held responsible for the alleged offence. Even as could be seen from Section 3 of the POCSO Act, penetration of penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or that he inserts, to any extent, any object or a part of the body, then under such circumstances, it amounts to penetrative sexual assault. Though the victim in her evidence has deposed that the accused made her to lay down on the floor and thereafter he has committed penetrative sexual assault, but the medical evidence is contrary to what has been stated by the victim. When there are so much contradiction in the ocular evidence and medical evidence and there is nothing to suggest that the accused had committed aggravated penetrative assault on the victim girl, then under such circumstances, the evidence of the victim is not trustworthy and reliable so as to accept the same and come to the conclusion that the accused has committed penetrative sexual assault on the victim. But however, on perusal of the evidence which has been : 13 : produced, it indicates that the accused has taken the victim and committed sexual assault on her. In that light, she might have received the injuries as stated by her and P.Ws.1, 3, 4 and 13. P.W.13 has clearly stated that there was a contusion over the left side of the chin and right elbow and taken into consideration the fact that the accused has taken the victim and has touched her body inappropriately. When the prosecution is successful in placing the material that the accused had taken the victim girl and committed sexual assault as explained by the victim girl, the presumption under Section 29 of the POCSO Act comes into operation alongwith Section 30 of the POCSO Act, to prove commission of the offence under Section 7 of the POCSO Act with required culpable mental state. Under such circumstances, the provision of Section 7 of the POCSO Act is attracted. If any person with a sexual intention touches the body or does any other act with a sexual intention which involves physical contact without penetration, is said to commit sexual assault. In that light, the evidence of the victim reposes the confidence of this Court and that we can come to the conclusion that there is : 14 : no penetrative sexual assault committed by the appellant - accused, but however, he has touched the body and he has tried to sexually assault the victim.
17. When the presumption is attracted and prosecution is successful in proving commission of the offence under Sections 7 and 8 of the POCSO Act, it is for the accused to rebut the same. But in the present case, accused has failed to rebut the presumption. In that light, the accused is liable to be convicted for the offence punishable under Section 7 of the POCSO Act and he is liable to be punished under Section 8 of the POCSO Act.
18. Insofar as other offence is concerned, the said evidence is not sufficient to bring home the guilt of the accused under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and even Section 376 of the IPC.
19. In the light of the discussions held by us above, we are of the considered opinion that the Trial Court without looking into the materials placed on record, has come to a wrong conclusion and has wrongly convicted : 15 : the accused for the offence punishable under Section 376 of IPC and Sections 4 and 6 of the POCSO Act but however has rightly acquitted the accused for the offence punishable under Sections 3(1)(w)(i) and 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
20. At this juncture, the learned counsel for the appellant submits that already the appellant - accused has undergone three years 2 months 10 days as under trial prisoner and the same may be given set off.
21. In the light of the discussions held by us above, we pass the following order:
ORDER The appeal is allowed in part.
The judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge and Special Judge, Haveri in Special S.C./S.T. No.31/2017 dated 08.01.2020 is modified.
The appellant - accused is convicted for the offence punishable under Sections 7 and 8 of POCSO Act instead of : 16 : Section 376(2)(i) of IPC and Sections 4 and 6 of POCSO Act.
The appellant - accused is sentenced to undergo imprisonment for the period which he has already undergone and he is liable to pay a fine of Rs.10,000/- with a default sentence of six months. Out of the said fine amount, an amount of Rs.8,000/- is ordered to be given to the victim on proper identification and acknowledgment.
The jail authorities are hereby directed to release the appellant - accused forthwith, if he is not required in any other case.
Registry is directed to communicate the operative portion of this order to the learned I Additional District and Sessions Judge and Special Judge, Haveri as well as the jail authorities through e-mail to release the appellant - accused - Imamsab S/o. Mohammadsab Nadaf forthwith, if he is not required in any other case.
Registry is directed to send back the Trial Court records forthwith.: 17 :
In view of disposal of main appeal, I.A. No.2/2020 does not survive for consideration.
[Sd/-] JUDGE [SD/-] JUDGE Rsh