Karnataka High Court
Mr Rajaulla vs The State Of Karnataka on 19 July, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:25130
CRL.A No. 663 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19THDAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 663 OF 2018
BETWEEN:
MR RAJAULLA
S/O ISAQSAB
R/A PATHANGERI, 4TH WARD
HARAPANAHALLI TOWN
DAVANAGERE
...APPELLANT
(BY SRI BUDRUNNISA,ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY THE POLICE OF
HARAPANAHALLI POLICE STATION
DAVANAGERE DISTRICT
...RESPONDENT
(BY SRIS.VISHWA MURTHY, HCGP)
Digitally THIS CRL.A IS FILED U/S.374 (2) CR.P.C PRAYING TO
signed by R
MANJUNATHA SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
Location:
HIGH COURT
DATED 20.03.2018 AND SENTENCE DATED 21.03.2018 PASSED
OF BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
KARNATAKA
SPECIAL JUDGE, DAVANAGERE IN S.C.NO.68/2017 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 366,376 AND 506 OF INDIAN
PENAL CODE AND SECTION 6 OF PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:25130
CRL.A No. 663 of 2018
JUDGMENT
1. This appeal is filed by the appellant under Section 374 (2) of Cr.P.C., for setting aside the judgment of conviction and sentence passed by the II Additional District and Sessions Judge and Special Judge, Davanagere in S.C.No.68/2017 for having found the appellant guilty and convicted and sentenced to undergo imprisonment for five years and pay fine of Rs.10,000/- for the offence punishable under Section 366 of IPC. He further sentenced to undergo imprisonment for one year and pay fine of Rs.5000/- for the offence punishable under Section 506 of IPC. Further the appellant sentenced to undergo imprisonment for 10 years and pay fine of Rs.20,000/- for the offence punishable under Section 376 of IPC andSection 6 of 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 parties are referred to as per their original ranking before the Trial Court for the sake convenience. -3-
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4. The case of the prosecution is that on the complaint filed by P.W.1 Danappa, the father of the victim girl as per Ex.P.1 alleging that his daughter minor girl - victim who is aged about 16 years, 10 months, went to attend the work at puffed rice factory and did not return on 06.03.2017 and on the very next day she came back to the house and on enquiry she has told that the appellant/accused Rajaulla taken her to a temple and married her by tying the Mangala Sutra and taken her to Bengaluru in a KSRTC bus and later on the next day brought back to Harappanahalli and left her.
5. On further enquiry, the victim/daughter informed that about four months prior to the said incident, the accused said to be committed sexual assault on her in the godown of the puffed rice factory and even two weeks back he said to be committed sexual assault on her. After getting the information from her daughter, the complaint came to be filed by P.W.1. Accordingly, police have raised the FIR in Cr.No.31/2017 for the offence punishable under Sections 366, 376 and 506 of IPC and Section 6 of POCSO Act.
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6. The accused was arrested on 08.03.2017 and he was remanded to judicial custody throughout trial and even during the appeal, he is continued in the custody. The police after investigating the matter, filed the charge sheet. The trial Court framed the charges for the above said offences and also an additional charge for the offence punishable under Section 9 of the Child Marriage Act. The denied the charges charges framed against him. Accordingly, the prosecution called upon to adduce the evidence to prove its case, in all examined 29 witnesses, got marked 18 documents and 19 material objects.
7. After closing of prosecution evidence, the statement of the accused under Section 313 of Cr.P.C., was recorded. The case of the accused is one of the denial,but not entitled to any defence, except marking Exs.D.1 and D.2.
8. After hearing the arguments, the Trial Court found the appellant/accused guilty and convicted and sentenced him as stated at para No.1 of the judgment. Hence, the appellant/accused is before this Court. -5-
NC: 2023:KHC:25130 CRL.A No. 663 of 2018
9. The learned counsel for the appellant has contended that the judgment of the Trial Court is erroneous and not in accordance with law. The age of the victim was not properly proved by the prosecution. As per the medical examination report given by the department of Dental and X-Ray, the age of victim as on the date of incident was 17 to 18 years and as per the Radiologist, her age was more than 18 years, but less than 20 years. Though the Head Mistress of victim's school was examined, there is no authenticated document to prove that the victim was born on 01.05.2000 and she was minor and there is no medical evidence to show that the accused committed sexual assault on her, except stating by the victim that four months prior to the incident, the accused committed rape on her. Except that, there is no corroborative evidence in respect of commission of sexual assault on the victim and hence, prayed for allowing the appeal.
10. Per contra, learned High Court Government Pleader supported the judgment of conviction and sentence passedby the learned District and Sessions Judge. -6-
NC: 2023:KHC:25130 CRL.A No. 663 of 2018
11. Having heard the arguments and on perusal of the records, the points that would arise for my consideration are:
"i) Whether the appellant abductedthe minor girl/victim aged about 17 years from the custody of the guardians and compelled her to marriage and said to be committed sexual assault on her and threatened her not to disclose the same to anybody, thereby the accused has committed the offence punishable under Sections 366, 376, 506 of IPC and Section 6 of POCSO Act?
2) Whether the judgment and sentence passed by the First Appellate Court call for interference?"
12. Before appreciating the evidence on record, it is worth to mention the evidence adduced by the prosecution witnesses.
(a) P.W.1 Dhanappa is the first informant and father of the victim has deposed that he has filed complaint before the police. According to him, on 06.03.2017, the victim was found missing and on 07.03.2017 she came back and on enquiry, she has informed that accused took her to a temple and tied the Mangalasutra and thereafter he took her to Bengaluru in a KSRTC bus and brought back to -7- NC: 2023:KHC:25130 CRL.A No. 663 of 2018 Harappanahalli and on further enquiry, the victim said to be informed that four months prior to the said day, the accused sexually assaulted her for four to five times and he has identified Ex.P.1 as complaint filed before the police.
(b) P.W.2 is the victim girl and she has deposed that she is working in puffed rice factory belongs to one Mahaboobsab - P.W.18 and the accused was also working with her in the said factory. P.W.2 further deposed that the accused taken her to a temple and tied Mangalasutra and thereafter took her to Bengaluru and again brought back her to Harappanahalli and she further deposed that prior to that the accused sexually assaulted her when she went to the factory for work and also committed sexual assault atgodown and the accused also threatened her not disclose the same to anybody. She further deposed that thereafter her father filed the complaint, the police took her and prepared the spot panchanama as per Ex.P.2 and took the photographs as per Exs.P.3 and 4. She has given her clothes which was seized by the police under Ex.P.5 and the photos as per Exs.P.6 and P.7 and further deposed that she also given statement before the Magistrate under Section 164 Cr.P.C., as per Ex.P.8.-8-
NC: 2023:KHC:25130 CRL.A No. 663 of 2018
(c) P.W.3 Giriraj is a pancha witness to the spot Ex.P.2, who has turned hostile and not supported the prosecution case.
(d) P.W.4 Manjunatha who is another pancha witness to Ex.P.2 and he also turned hostile to the prosecution case.
(e) P.W.5 Hanumantappa who is panchawitness to Ex.P.5 also turned hostile.
(f) P.W.6 Ratnamma mother of the victim. She has deposed on par with P.W.1 husband, regarding missing of the victim and the victim came back on the next day.
(g) P.W.7 Ningamma, grandmother of the victim. She also given her evidence on par with P.W.6.
(h) P.W.8 Nagaraja, uncle of the victim and P.W.9 Ramesh another uncle of the victim. P.W.10 Raju, one more uncle of the victim, all of them supported the case of the prosecution and deposed that the victim was found missing and on the very next date, she came back and informed that the accused took her to Bengaluru by marrying her. -9-
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(i) P.W.11 Kenchappa, onemore uncle of the victim, who is the brother of P.W.1, who searched the victim along with P.W.1.
(j) P.W.12 Sakamma, Head Mistress of the victim's school, who issued the certificate as per Ex.P.10.
(k) P.W.13 Parvathamma, an Anganavadi worker deposed that she also issued Ex.P.11 - certificate as per the birth register maintained in the office of Anganawadi. According to the said certificate, the victim's date of birth is 01.05.2000.
(l) P.W.14 - Nagesha, PWD Engineer who prepared the spot sketch as per Ex.P.12.
(m) P.W.15 Rajashekara, a village accountant who issued the assessment extract in respect of the puffed rice factory as per Ex.P.13.
(n) P.W.16 Vasanth, another brother of P.W.1, was also joined P.W.1 in searching P.W.1.
(o) P.W.17 Mariyamma, a neighbor of the grandmother of the victim also deposed that, she came to know about the incident from somebody and she is only hearsay evidence.
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(p) P.W.18 Mahaboobsaheb is owner of the puffed rice factory and has turned hostile to the case of the prosecution.
(q) P.W.19 Dr. Triveni, who has examined the accused and given thecertificate as per Ex.P.15.
(r) P.W.20 Dr. A.M. Sunanda who has examined the victim girl and according to her evidence, there is no injury found on the private part of the victim. However, there was rupture of the hymen. According to her evidence, the age of the victim was 18 to 20 years and as per the dental examination report, the age of the victim was 17 to 18 years and she issued the medical certificate as per Ex.P.16.
(s) P.W.21 Basavaraj, Police Head Constable, who took the victim to the hospital. P.W.22 Nagendrappa, Police Head Constable who carried FIR to theCourt.
(t) P.W.23 Dr. Chayakumari, who conducted chemical analysis on the cloth of the victim and given report as per Ex.P.18 and as per her evidence, there is no semen stains and blood stains found on the cloth of the accused as well as victim girl.
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NC: 2023:KHC:25130 CRL.A No. 663 of 2018 (u) P.W.24 Mahanthesh, a police constable who arrested the appellant on 08.03.2017 and produced him before the Investigating Officer.
(v) P.W.25 Prahlad, Head Constable who conducted the spot panchanama as per Exs.P.2 and P.5in a KSRTC bus stand, where the victim and appellant assembled to travel and also the spot where the puffed rice factory is situated.
(w) P.W.26 Saddyojatappa, Assistant Sub- Inspector of Police who received the complaint of P.W.1 as per Ex.P.1 and registered the FIR as per Ex.P.17.
(x) P.W.27 D. Durgappa, the Investigating Officer conducted the further investigation and filed the charge sheet.
(y) P.W.28 Vinayaka, constable who carried the articles to the FSL for chemical analysis.
(z) P.W.29 Lata V Talekar, PSI who recorded the statement of the victim and also photographs.
13. On careful verifying the evidence on record which reveals that P.W.1 filed the complaint to the police on 07.03.2017 alleging that his daughter was found missing from
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NC: 2023:KHC:25130 CRL.A No. 663 of 2018 06.03.2017, when she went to factory of P.W.18 and did not return and on the next day she came back to Harappanahalli and on enquiry, P.W.2 victim/daughter informed him that the accused took her for marrying her in a temple and he tied Mangala Sutra and thereafter took her to Bengaluru, on the very next day brought back and left her.On further enquiry P.W.2 informed him that four months prior to the said date, the accused sexually assaulted her and threatened her. He is only the witness who heard from P.W.2.
14. P.W.2 who is the star witness to the incident. According to her evidence, on 06.03.2017, when she went to the job, the accused told that he will marry her and taken her to a temple and tied Mangala Sutra at Harappanahalli and later both of them went to Bengaluru and on the very next day, again accused brought her back and left her in Harappanahalli and further says, prior to that the accused said to be committed sexual assault on her at godown four to five times about four months back and also about two weeks back once again the accused said to be committed sexual assault on her and told not to inform the same to any other person and later after returning Harappanahalli from Bengaluru she has
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NC: 2023:KHC:25130 CRL.A No. 663 of 2018 intimated the same to her mother and grand mother and subsequently, complaint came to be filed.
15. In the cross-examination she has stated that she has accompanied the accused to Bengaluru, she has not tried to escape from the clutches of the accused and not raised any alarm and not tried to intimate any other passengers in order to show that the accused forcefully taking her to Bengaluru. On the other hand, she has admitted the suggestions made by the counsel for the accused that she did not disclose the fact of commission of sexual assault by the accused on her to any person including the owner of the factory and she was continuously going to the job and worked along with the accused. In the cross-examination, the age of the victim was also disputed by counsel for the accused. In this regard, the prosecution in order to prove that the victim is a minor girl, below the age of 18 years, has examined P.W.12 Sakamma - HeadMistress and got marked the record Ex.P.10. As per the evidence of Ex.P.10 - school records, the date of birth of victim is 01.05.2000.
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16. To corroborate her evidence, the prosecution also examined P.W.13 Parvathamma, an Anganavadi worker. She also deposed in her evidence that she has given Ex.P.11 - certificate as per the birth register extract maintained in the office. According to it, the date of birth of victim is 01.05.2000.
17. The evidence of P.Ws.12 and 13 reveal that the date of birth of the victim is 01.05.2000. On the date of incident i.e., 06.07.2017, the age of the victim is more than 17 years two months.
18. The prosecution also examined the doctor who conducted the medical examination on the victim P.W.20 Dr. A.M. Sunanda. According to her evidence, she has taken the x- ray and estimated the age of the victim as 18 to 20 years and as per the dentist opinion, the age of the victim is 17 to 18 years. On considering the evidence of P.W.20, the age of the victim is about 18 to 20 years as per the Radiological report and 17 to 18 years as per the dental examination report. However, the documentary evidence available on record as per the evidence of P.Ws.12 and 13, school records,the date of birth of victim is 01.05.2000 and the original register
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NC: 2023:KHC:25130 CRL.A No. 663 of 2018 maintained by the Anganavadi school also reveals that the date of birth of victim is 01.05.2000. Therefore, once the documentary evidence is available, the question of considering the random estimation of the age has no value. Therefore, the age of the victim is considered below 18 years.
19. In respect of the other witnesses P.Ws.9 to 11 the uncles of the victim and another uncle P.W.16 who accompanied P.W.1 to search the victim stated that the victim was found missing and she came back very next day and she has informed that the accused took her to a temple and married her by tying Mangala Sutra temple and later took her to Bengaluru and brought back. All these witnesses categorically stated and supported the evidence of P.W.2 that accused took her to a temple and also tied Mangala Sutra and taken her to Bengaluru and returned back.
20. As per the provision of Section 361 of IPC when the victim was minor, she was accompanied the accused even with consent, it amounts to abduction and kidnapping from the lawful guardian and as per the evidence of P.W.2, the accused tied Mangala Sutra in a temple on 06.03.2017 itself which
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NC: 2023:KHC:25130 CRL.A No. 663 of 2018 amounts to an offence punishable under Section 366 of IPC, where the accused compelling the marriage of the minor girl by abduction. However, from the evidence of P.W.2 she has stated that about 4 months prior to the incident i.e., 6.03.2017, the accused said to be committed sexual assault on her.But, in the cross-examination of P.W.2, she has not stated the same to either family members; mother, grand mother or any of the workers in her work place or to P.W.18 who is the owner of the factory as to the sexual assault. On the other hand, it appears that both of them are loving with each other and she went to temple along with accused for the purpose of marriage and thereafter she accompanied the accused to Bengaluru and later returned back.
21. To corroborate the said evidence, the evidence of P.W.20 Doctor is relevant to mention that there is no injuries found on the body of the victim and the clothes of the accused as well as victim collected which were sent to FSL which were examined by P.W.23 Chayakumari, where FSL report issued as per Ex.P.18, there is nothing incumbent material found on the clothes of the victim as well as accused in respect of sexual assault.
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22. Based upon Ex.P.18, the doctor also given opinion Ex.P.16 that there are no injuries found on the victim, except hymen ruptured. There is no other evidence available on record to prove that the accused committed sexual assault on the victim and prior to four months from 06.03.2017, she was almost 17 years age.
23. In respect of threat given by the accused, it is not acceptable as upto the incident,because the victim continuously going to the job and working with the accused in the factory and also coming to the house and staying with her parents. The victim has not disclosed the sexual assault to her mother, grandmother or anybody and on 06.03.2017, she accompanied the accused. If at all the accused sexually assaulted and threatened her, the question of accompanying the accused does not arise. Therefore, the factum of criminal intimation made by the accused to attract Section 506 of IPC is not made out by the prosecution.
24. In view of failing to prove the factum of the sexual assault, the prosecution failed to prove the offence punishable under Section 376 of IPC and Section 6 of POCSO Act.
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NC: 2023:KHC:25130 CRL.A No. 663 of 2018 However, from the evidence of P.W.1 and the other family members including the neighbor, the victim was found missing from 06.03.2017 till 07.03.2017. She was accompanied the accused to Bengaluru. Even though the consent was there, but on the purpose of Section 366 and Section 361 of IPC, she is a minor, her consent is immaterial, therefore amounts to abduction and the accused compelled her to marriage, thereby the prosecution has successfully proved the guilt of the accused, which is punishable under Section 366 of IPC.
25. In respect of the sentence of the appellant, he is in custody from 08.03.2017. The offence under Section 366 of IPC is punishable with imprisonment extended to 10 years and fine. Considering the facts and circumstances of the case, I am of the view that the Trial Court has convicted the appellant for 5 years for the offence punishable under Section 366 of IPC. However, considering the same, if the punishment imposed for 5 years for the offence punishable under Section 366 of IPC be confirmed, that would meet the ends of justice.
Accordingly, proceeds to pass the following:
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NC: 2023:KHC:25130 CRL.A No. 663 of 2018 ORDER
(i) The judgment of conviction and sentence passed by the Trial Court in respect of Section 376 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 and Section 506 of IPC is hereby set aside and the appellant is acquitted for the said offences.
(ii) However, the judgment of the Trial Court with respect to the offence punishable under Section 366 of IPC is confirmed.
(iii) The appellant is entitled for set off under Section 428 of Cr.P.C.
(iv) The jail authorities are directed to release the appellant, if he is not required in any other case.
Sd/-
JUDGE MR