Karnataka High Court
Sri Naveen Kumar vs State Of Karnataka on 22 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.1323/2016
BETWEEN
SRI NAVEEN KUMAR
S/O VENKATAPPA
AGED 24 YEARS
R/O. KARAVANAHALLI VILLAGE
BUDIKOTE HOBLI TALUK
BANGARPETE - 563 114.
DIST:KOLAR. ...APPELLANT
(BY SRI VEERANNA G TIGADI, ADVOCATE)
AND
STATE OF KARNATAKA
REP. BY THE SUB-INSPECTOR OF POLICE
BANGARPETE POLICE STATION
BANGARPETE - 563 114
DIST:KOLAR. ...RESPONDENT
(BY SRI NASRULLAH KHAN, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED:20.07.2016 AND SENTENCE
DATED:22.07.2016 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE KOLAR IN S.C.No.2/2014
- CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 376 AND 506 OF
IPC AND SECTION 4 OF POCSO ACT.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 12.07.2019 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING.
JUDGMENT
This Criminal appeal by the appellant/accused is directed against the judgment dated 20.7.2016 and order of sentence dated 22.7.2016 passed by the II Additional District and Sessions Judge, Kolar, in S.C.No.2/2014, convicting the appellant/accused for the offences punishable under Section 376 and 506 of IPC and Section 4 of POCSO Act and sentencing him to undergo rigorous imprisonment for seven (7) years and to pay fine of Rs.25,000/- in default to undergo simple imprisonment for one (1) year for the offence under Section 4 of POCSO Act.
2. In order to avoid confusion and overlapping, the parties hereinafter are referred to with their rankings as held by them before the Sessions Court. 3
3. The substance of the complaint is, complainant is one Ramesh Babu. His wife is one Nagavenamma. The victim is their daughter. They reside at Karmanahalli village, Budikote Hobli, Bangarpet Taluk. They have three children, consisting two daughters and a son. The marriage of the complainant was solemnized on 21.3.1997. The first child is elder daughter born after one year of their marriage. But she had no education and the other two children are studying Primary and High school.
It is further stated that on 15.9.2013, complainant left the house for his painting work to Bangalore and his wife/CW3 to coolie work. Their elder daughter, victim girl went out of house to secure hay from their field and it was 2.00 p.m. when she was returning home with hay at about 5.30 p.m. and reached near the land of Ramanna on footpath, the accused followed her and asked her for sexual favour. She refused. He caught hold of her, but she escaped. Again he caught hold her, 4 took her to a remote place near the canal and committed rape against her will and threatened her of life saying that he would take away the life of the victim if she informs to anybody. The victim returned home and was in a dull mood and after return of her parents, she started weeping and when the complainant got frightened and enquired, she told that on that day i.e. on 15.9.2013 at about 2.00 p.m. she had gone to the land to bring hay and at about 5.30 p.m. when she was way back to her house, at a passage leading to Alambadi she felt somebody pulled her saree near Ramanna's agricultural land, when she turned back it was Naveen kumar son of Venkateshappa. He threw bundle to the floor, meanwhile she escaped from him, he chased her, caught her, carried her and dropped and pushed her, she fell down, he fell on her and forcibly raped her.
As it was late night they did not approach the police and on the next day by intimating the elderly 5 persons of the village, they went to police station and lodged the complaint.
4. On the basis of the complaint, police registered a Criminal Case against the accused in Crime No. 299/2013 for the offences under Section 376 and 506 of IPC.
5. PW12-P.Shivakumar, Circle Inspector of police took over the further investigation of the matter after crime was registered and conducted the formalities, including drawing of mahazar and collection of evidence. Radiologist PW9- Dr. Bayappareddy gave report as per Ex.P9 regarding the age of the victim at the time of incident. PW10-Dr.Anitha Badan, Medical officer has attended the victim medically. PW11- Dr.Rajashekhar, Anesthealogist of General Hospital has examined the accused and gave report as per Ex.P16. PW12-P. Shivakumar and PW13 Venkatachalapathy are the police officials who have conducted the 6 investigation. Insofar as Ramesh Babu, PW1 is concerned, he is the complainant.
6. Rest is, completing immediate legal formalities and after completion of the investigation, police filed charge-sheet against the accused for the offences punishable under Section 376, 506 IPC and under Section 4 of POCSO Act, 2012.
7. After hearing the accused on charge, the trial Court found that there were materials to frame the charge. Accordingly, charges were framed and read over to the accused, he pleaded not guilty and came to be tried.
8. In order to bring home the guilt of the accused, prosecution examined as many as 14 witnesses as PWs 1 to 14 and got marked documentary evidence of Exs.P1 to P17 on its behalf and marked MOs 1 to 9. No oral evidence is adduced on behalf of accused. However, Exs.D1 and D2 were marked on behalf of accused and Ex.C1 was marked on behalf of the Court. 7
9. On considering the evidence stated above and on the submissions of learned Public Prosecutor and learned counsel for accused, accused was found guilty by the learned Sessions Judge for the offence punishable under Sections 376, 506 of IPC and Section 4 of POCSO Act and sentenced him as stated above. The same is challenged by the accused in this appeal.
10. Heard learned counsel for accused and learned High Court Government Pleader for State.
11. Learned counsel Sri. Veeranna G. Tigadi for appellant/accused would submit that the victim never was attacked at any point of time. The accused in this case was arrested on 18.9.2013. The complaint is lodged because of the family ill will between the complainant and the accused. The victim was not a child to attract the provisions of POCSO Act. Learned counsel would submit that the complaint is lodged on the basis of enemity between the families. It was further submitted that learned Sessions Judge wrongly 8 held that PW7 victim was a child. The evidence of Dr. Bayappareddy is not considered. The evidence of PW7 was wrongly understood. The complaint was fake as it was lodged beyond 24 hours. The learned Sessions Judge failed to find the fact that PW7 was not a reliable witness.
12. In support of his submission, learned counsel for the appellant/accused relied on the decision of the Hon'ble Supreme Court in the case of Jarnail Singh Vs. State of Haryana ((2013) 7 Supreme Court cases 263).
13. Learned High Court Government Pleader for respondent-State would submit that the age of the victim is below 18 years. She is a child within the meaning of POCSO Act. The accused has committed heinous offence. There is absolute corroboration among the oral evidence, more particularly, of the material witnesses. The conduct and response of the witnesses are natural and there is no occasion to doubt. 9
14. The complaint is registered for the offence punishable under Section 376 an 506 of IPC in Crime No.299/2013 and in the subsequent circumstances and considering the age of the victim Section 4 of POCSO Act, included in the charge-sheet.
15. Among the witnesses examined, PW1 - Rameshbabu is the complainant. He is examined on 1.10.2014. The complaint is lodged at 17.30 hours on 16.9.2013 by PW1, father of the victim. He has reiterated the complaint terms and has narrated the incident having heard it from the victim. He deposes to the effect of informing the villagers and because it was dark, he decided to lodge complaint on the next day. He identifies complaint as Ex.P2. He denies the suggestions made by the learned counsel for the accused.
16. Thus the evidence of father, PW1 is that information was passed on by the victim, his daughter to his wife regarding the rape committed by the accused 10 on the victim. There does not appear artificiality in his term. Moreover, no contradictions or omissions are elicited from him.
17. PW8-Nagavenamma, mother of the victim is examined on 14.10.2014. As she is a Telugu speaking person, her evidence was recorded with the help of Translator Sri. K.N.Shivanna, Advocate.
She tells about the relationship between herself, her husband PW1 and victim PW7. She also tells about family members and their inter relationship. Victim was born after one year to their marriage. On the date of incident, she had gone for coolie work and at about 7.30 p.m., when she returned, her husband was already in home. Victim was weeping and when asked she told about the incident. She states that she has heard about the incident, regarding the accused following the victim, pulling saree, thereafter asked for her a favour, did not live the victim even when she refused and raped her near canal within the vicinity of the graveyard. She 11 did not gave complaint because it was dark and waited for the next day. Thereafter, she was taken to Bangarpet Hospital and then to Court. Thus, she has deposed the version as per the version told by her earlier. Her evidence does not appears to be artificial or exaggeration. She denied the suggestions made by the counsel for the accused and reiterate the version of PW1.
18. The victim is examined as PW7 on 14.10.2014. She is a Telugu speaking girl. Sri. K.N.Shivanna, Advocate was appointed for translating her version. She tells about the relationship among herself, PW1 and PW8. On the date of incident, her sister had gone to school and at 2.00 clock she went for bringing hay and at 5.30 p.m., she was returning home along with bundle of hay. She specifically tells accused threatening her, slapping twice, causing scratching at inappropriate place, he lifted her on shoulder went near canal, stripped her and tells the word in Telugu language, 12 which is specifically meaning intercourse both in Kannada and Telugu. The time was 5 to 5.30 p.m. There were no other persons hence nobody could come. She came weeping. She also gives an account of clothes worn by him and removed. She tells to her mother PW8 regarding the incident. On the next day, her father and the chairman of the Panchayat waited for the accused, he did not come. Thereafter, they went to Bangarpet to the Police Station. Police took them to hospital and she was also taken to Bangarpet Court and she identifies her left thumb impression on Ex.P8 as Ex.P8(a) and on spot mahazar Ex.P7 as Ex.P7 (b).
She has been cross examined regarding time, date, her resistance and regarding age. She states that age is given to the Police by her parents. She recited that her parents were not present at home when the incident had happened. Further, she also states for having given statement before the Magistrate. 13
19. PW2-Venkateshappa is a circumstantial witness. He was examined on 1.10.2004. He stated having heard about the incident from the parents of the victim. He turns hostile.
20. PW3-K. Muniswamy is a circumstantial witness. He gave similar version like PW2 and turns hostile.
PW2 and 3 deny for having given statement before the police.
21. PW4-Shafiulla gave similar version like PWs 2 and 3 and he also turns hostile.
22. PW5-Venkateshappa is a Member of Taluk Panchayat. He was treated as a witness for having heard about the incident through PW1. He also stated that when he came to know about the incident, he asked them to get the matter discussed at Bangarpet. But turns hostile and denies the suggestions made by prosecution and no significant admissions are available from this witness.
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23. PW6- Devaraj is stated as witness to the mahazar drawn at Alambadi Karmanahalli village road along with one Venkateshappa. He deposes to the effect of conducting Mahazar Ex.P3 on 17.9.2013.
24. PW9-Dr. Bayappareddy, is the Medical Officer who has conducted the medical examination and took X ray and found the age of the victim was more than 16 years, but less than 18 years as on the date of incident and issued the document as per Ex.P9 and his signature is Ex.P9(a). He has been cross examined and no serious admissions are elicited from him.
25. PW10.Dr.Anitha Badan is the Medical Officer, Bangarpet. She deposed that, she examined one Jyothi at 5.30 p.m. and she found the following injuries:
(i) There is a scratch mark on the left breast of the victim girl.
(ii) No other external injuries were noticed on the genital area, abdomen and on the face of the victim;15
She has collected necessary requirement from the body of the victim when she examined her at 5.30 p.m. on 16.9.2013.
26. PW11-Dr. K.A.Rajashekhar, is examined on 10.11.2014. He has examined the accused- Naveenkumar, aged about 22 years on 18.9.2013. He has medically examined him and issued certificate as per Ex.P9 stating that the accused was potent.
He has been cross examined. No admission of contradictions are elicited.
27. PW12- P. Shivakumar has conducted subsequent investigation, recorded the statement of victim through women constable Lalitha, visited the spot on 11.7.2013 and conducted mahazar as per Ex.P7 under his signature Ex.P7(c). He also wrote a letter for medical examination and also to find out the age of the victim. No significant contradictions are elicited in his cross examination.
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28. PW13- G.N.Venkatachalapathy is the Circle Inspector at that time and he has been examined on 8.12.2014. He has conducted further investigation of the matter, sent the seized articles MO 1 to 5 and other relevant material for medical examination.
He has been cross examined on behalf of the accused. No significant contradictions or other wise elicited.
29. PW14-Yogananda Sonar, has registered the complaint against the accused for the offence punishable u/s 376 and 506 and filing of FIR. He identifies the complaint and the endorsement.
30. Ex.P2 is the complaint marked during the evidence of PW1-Ramesh babu who is the father of the victim. Exs.P1 to P4 are the statements of the witnesses who have not supported the prosecution case.
31. Ex.P7 is the spot mahazar. Ex.P8 is the statement given by the victim before the Magistrate under Section 164 Cr.PC. In substance, the version of 17 the victim corroborates the same. Ex.P9 is the wound certificate. Ex.P10 is the medical report of accused. Ex.P11 is the chemical examination report, Ex.P12 FSL report and FIR is marked as Ex.P14.
32. With the hostility of PWs 2 to 4, the material witnesses are PW1, PW7 and PW8, Police officials and Doctor. In order to maintain rhythm and alignment non official witnesses are: PW1, 7 and 8. However, their evidence is evalued in two phases. First is PW7,8 and 9 and thereafter rest of witnesses. The offences alleged against the accused is punishable under Sections 376 and 506 of IPC and Section 4 of POCSO Act.
33. By virtue of evidence of PW9-Dr. Bayappareddy, victim is aged less then 18 years and about 16 years. In this connection, Ex.P9-certificate issued by the Doctor is considered. Thus, though the criminal case is registered for the offence under Setions 376 and 506 of IPC, on the basis of the evidence of the Doctor that the victim is less than 18 years, Section 4 of 18 POCSO Act, which defines aggravated sexual assault. Section 4 of POCSO Act reads as under:.
"4. Punishment for penetrative sexual assault Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."
34. The applicability of POCSO came into operation incase of sexual offence against the children and those who are not completed 18 years are considered as children.
35. Thus, the sexual offence whenever committed on a boy or girl aged less than 18 years provides for extended punishment for aggravated sexual assault similar of 376 of IPC which is as under:
"376. Punishment for rape- (1) whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine".19
36. Learned counsel for the accused vehemently submitted that there is no age proof of the victim and chargesheet did not make out or charged with any other offence. The evidence of circumstantial witnesses, the official witness, the Doctors and the police officials are available. PWs 1, 7 and 8 are the material witnesses and relatives consisting of victim and her parents. Those witnesses are natural and no discrepancy or material variation are seen. Moreover, the circumstances and the time stated by them is natural and cannot be doubted.
37. Regarding the private witnesses though hostile and do not support the prosecution case makes little difference as the evidence of PW1,7 and 8 are corroborated. They do not take away the crux of prosecution case. The medical documents and evidences of Doctors perfectly corroborates with the evidence of victim and parents.
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38. The version of victim, her father and mother who are PWs 1,7,8 are definitely reliable and there is no second thought about it. Their evidence is filed for corroboration of the sexual offence for the highest level. Ex.P2- complaint, Ex.P14-FIR, Exs.P10,11-medical certificates, fully corroborates their evidence.
Victim is the best witness. On appreciating the evidence both oral and documentary, the commissioner of the offence on the victim is established to the confidence of the Court. No malafides could be seen from the entire case of the prosecution.
39. In the overall circumstances, the age of the victim is established to be less than 18 years. In this connection, contention of the learned counsel for the accused cannot be accepted. The commission of offence, presence of the victim, presence of the accused, all are neatly corroborated to each other and natural. No discrepancy could be seen in filing complaint and 24 hours delay is not fatal to the case.
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40. In the over all circumstances of the case, I do not find any infirmity, irregularity or perversity in the judgment of conviction dated 20.07.2016 and order of sentence dated 22.7.2016 passed by the learned Sessions Judge in SC No.2/2014. Hence, the appeal is dismissed.
Sd/-
JUDGE tsn*