Karnataka High Court
Sri.Manik vs State Of Karnataka on 30 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.200162/2017
Between:
Sri Manik
S/o Ismailappa Togarkhed
Aged about 40 years, Occ: Coolie
R/o Hilapur Village, Bidar - 585 201
... Appellant
(By Sri M. Sudhakar Rao, Advocate)
And:
The State of Karnataka
Through the police of
Hallikhed-B Police Station
Represented by learned
State Public Prosecutor
High Court Building
Kalaburagi - 585 103
... Respondent
(By Sri Gururaj Hasilkar, HCGP)
This criminal appeal is filed under Section 374(2) of
the Code of Criminal Procedure, praying to set aside the
judgment of conviction dated 08.11.2017 and order of
sentence dated 16.11.2017 passed by the Special Judge and
Additional District & Sessions Judge at Bidar in Special Case
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No.45/2016, convicting the appellant/accused for the
offences punishable under Sections 376, 511, 354-A, 506 of
IPC and Sections 4 and 18 of the POCSO Act.
This appeal coming on for further hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is filed under Section 374(2) of the Code of Criminal Procedure, challenging the judgment of conviction dated 08.11.2017 and order on sentence dated 16.11.2017 passed by the Special Judge and Additional District & Sessions Judge at Bidar in Special Case No.45/2016, thereby convicting the appellant for the offences punishable under Sections 376, 511, 354-A, 506 of IPC and Sections 4 and 18 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), sentencing him to undergo simple imprisonment for five years with fine of Rs.5,000/- with default clause of simple imprisonment for two months for the offence punishable under Section 376 R/w Section 511 of IPC. Further, for the offence punishable under Section 354-A of IPC, the appellant 3 was sentenced to undergo simple imprisonment for two years and to pay fine of Rs.2,000/- with default clause of simple imprisonment for two months. Further, the appellant was sentenced to undergo simple imprisonment for three years and to pay fine of Rs.3,000/- with default clause of simple imprisonment for two months for the offence punishable under Section 506 of IPC. Further, for the offence punishable under Section 4 r/w Section 18 of the POCSO Act, the appellant was sentenced to undergo simple imprisonment for five years and to pay fine of Rs.5,000/- with default clause of simple imprisonment for two months and it was ordered that the above sentences shall run concurrently.
2. Brief facts of the case of the prosecution are that, PW.1 is minor victim; she was residing along with her parents; she was aged 16 years; she is illiterate and used to assist her parents in agricultural work and the 4 appellant/accused also from the same village. When this being the fact, on 12.01.2016 at night about 8.30 p.m., the PW.1 had been to bore well situated near road to fetch the water and while she was drawing water from the bore well, the appellant came there after attending his natures call and on the pretext that he would lift the pot has gagged her mouth and dragged the PW.1-victim nearby ditch and attempted to commit penetrative sexual assault and rape, but the PW.1 had resisted and objected with all her force and kicked the appellant. Thus, in this way, she escaped from the clutches of the appellant and then ran towards her house and told this fact to her mother-PW.2 and since it was night time, the PW.1 has lodged the complaint on the next day at 3.00 p.m. as per Ex.P1. Accordingly, a case was registered in Crime No.06/2016 for the offences punishable under Sections 376, 511, 506 of IPC and Sections 4 and 18 of the POCSO Act against the appellant.
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3. After investigation, the Investigating Officer has filed the charge sheet before the Special Court against the appellant. On filing of the charge sheet, the learned Special Judge has taken cognizance of the offences under Section 190 of Cr.P.C. and supplied the copy of the charge sheet to the appellant as required under Section 207 of Cr.P.C. and has secured the presence of the accused and after hearing both sides, has framed charge against the appellant for the offences punishable under Sections 376, 511, 506, 354-A of IPC and Sections 4 r/w Section 18 of POCSO Act. After being read-over and explained the charge to the appellant-accused, he pleaded not guilty and therefore claims to be tried. Accordingly, by recording his plea, the Special Judge has proceeded with the trial.
4. During the trial, in order to prove its case, the prosecution has got examined 14 witnesses as PWs.1 to 14 and got marked 15 documents as Exs.P1 to 6 P15 and also got marked 14 Material Objects as M.Os.1 to 14. After completion of prosecution evidence, the accused was examined under Section 313 of Cr.P.C. and he denied all the incriminating circumstances and evidences revealed against him and it is totally denial of the case by the appellant. However, the appellant did not chose to lead any defence evidence.
5. The Special Judge, after evaluating and analyzing the evidence on record has convicted the appellant for the offences punishable under Sections 376, 511, 354-A, 506 of IPC and Sections 4 and 18 of the POCSO Act and imposed the sentence as stated above.
6. Being aggrieved by the judgment of conviction and order of sentence, the accused has preferred this appeal urging various grounds in the appeal memorandum and also the learned counsel for the appellant has argued that the evidences of PW.1- 7 victim and her mother-PW.2 do not inspire confidence of the Court with reference to their cross-examination. Further submitted that the appellant has been falsely implicated in the case at the behest of some other person which is also revealed in the cross-examination. Further submitted that PW.1 is not minor below the age of 18 years and the Investigating Officer has not collected any evidence to show that PW.1 is minor below the age of 18 years and absolutely there are no records produced by the prosecution to show that PW.1 is minor below the age of 18 years. Further submitted that except the evidence of PWs.1 and 2, there are no evidences to hold the appellant as guilty of the alleged offence and when the evidence of PWs.1 and 2 are taken away, the prosecution does not have any case to convict the appellant. Therefore, submitted that the evidence of PWs.1 and 2 do not inspire confidence of the Court and found to be unbelievable. Therefore, the prosecution 8 does not have any evidence and hence the appeal is liable to be allowed, acquitting the appellant.
7. Further, the learned counsel for the appellant submitted that the statement of PW.1 ought to have been recorded by the woman police officer not below the rank of sub-inspector, but in the present case, the woman Police Constable has recorded the statement. Therefore, submitted it is in violation of Section 24 of the POCSO Act. Further submitted that the Juvenile Justice Board or the Special Court had not determined the age of PW.1-victim. Therefore, there are no convincing evidences available to show that PW.1 is minor below the age of 18 years. Further submitted that there is 18 hours delay in lodging the complaint and registration of FIR from the time of alleged incident and therefore in the absence of explanation to this delay, there is manipulation occurred while lodging the complaint before the police. Therefore, registration of 9 the prosecution case itself is doubtful. Hence, prays for acquittal of the appellant.
8. Further the learned counsel submitted that upon considering the scene of offence, it is highly improbable that such alleged incident was occurred, since as per the evidence of PWs.1 and 2, in and around the bore well, there are several houses and villagers were there and there is electric pole and the people are walking in and around the said bore well and the electric pole. Therefore, with this geographical area as revealed from the evidence of PWs.1 and 2, it is not possible for the appellant to do the alleged crime. Therefore, submitted that in this regard PWs.13 and 14, Investigating Officers have not prepared sketch of place of occurrence. If the sketch is prepared and submitted before the Court, then the entire geographical location of the place of occurrence would have been revealed before the Court, but PWs.13 and 14 have not prepared 10 any sketch for the reasons best known to them. Hence, the prosecution case is highly rendered unbelievable. Hence, prays for acquittal of the appellant.
9. Further the learned counsel submitted that two other important witnesses who are PWs.5 and 6 have not stated that the appellant had tried to ravish the PW.1. Therefore, only from the evidence of PW.1, conviction cannot be made and furthermore the evidence of PW.1 has been shaken in the course of cross-examination while saying that the appellant has committed the alleged offence. Therefore, when the evidence of PW.1 does not inspire confidence of the Court, then the evidence of PW.2 is mere a res gestae evidence is washed away when the evidence of PW.1 is found to be unbelievable. Therefore submitted that by taking the evidences in all with cumulative effect, the prosecution case is found to be highly doubtful. Hence, 11 prays to allow the appeal and to acquit the appellant- accused against the charges levelled against him.
10. Per contra, learned High Court Government Pleader appearing for the respondent-State submitted that the evidence of PWs.1 and 2 inspire confidence of the Court and their evidence is to be appreciated in their background, considering the factors that PWs.1 and 2 are illiterate rustic women and residing in the village. Therefore, if any contradictions are revealed, that cannot be given much weight so far as to negate the prosecution case. Therefore, irrespective of this, the evidence of PWs.1 and 2 are to be appreciated. Further submitted that in the absence of any other evidence by the defence even by way of preponderance of probabilities that why the appellant is fixed falsely in the case and in the absence of such explanation, the evidence of PWs.1 and 2 cannot be disbelieved. Further submitted that from the evidence of PW.7-Doctor, who 12 had examined the victim, it is revealed that PW.1 is below the age 18 years. Since the PW.1 is an illiterate girl, quite naturally she does not have any Date of Birth Certificate from the school. Therefore, medical opinion was sought for and it was revealed that the PW.1 is found to be below the age of 18 years at the time of occurrence of offence. Further submitted that from the other evidence, the prosecution is able to prove the guilt of the appellant. Accordingly, the Special Court has rightly convicted the appellant. Further submitted that even though there is delay of 18 hours in lodging the complaint and registration of FIR, it is quite natural that the alleged incident was occurred on 12.01.2016 in the night at 8.30 p.m. and PWs.1 and 2 are women and therefore, the PW.1 was subjected to medical examination and after that on the next day at 3.00 p.m., the PW.1 has lodged the complaint. Therefore, considering all the circumstances, it cannot be said that there is delay in lodging the compliant and registration 13 of FIR. Therefore, submitted that the genesis of the crime as per the complaint-Ex.P1 is trustworthy. Hence, the Special Court has rightly appreciated the evidence on record and convicted the appellant, which needs no interference by this Court. Hence, he prays to dismiss the appeal.
11. In the present case, for proving the guilt of the appellant, the witnesses available to the prosecution are only two witnesses, who are PWs.1 and 2. PW.1 is the victim girl and PW.2 is the mother of PW.1 and the other witnesses are formal in nature. Therefore, before appreciating the evidence of PWs.1 and 2, the evidence of PW.7-Doctor, who is stated to have examined the victim-PW.1 is considered at this stage for ascertaining what was the age of the PW.1 at the time of commission of the offence.
12. PW.7-Doctor has stated in his evidence that he had examined PW.1, as the PW.1 was produced by 14 the PW.9 and as per the ossification test and X-ray report examination, PW.7 was of the opinion that the victim was minor below the age of 18 years. PW.1 is an illiterate girl and quite naturally it cannot be expected her Date of Birth Certificate from the school authorities. It is revealed from the evidence that husband of PW.2 and father of PW.1 is mentally insane person. Therefore, quite naturally there cannot be chances of getting registration of the date of birth of PW.1 before the authorities. Hence, under these circumstances, the Investigating Officer had made arrangement to produce the victim before the PW.7-Doctor to ascertain the age of PW.1 and accordingly PW.7 has given the opinion that the PW.1 was below the age of 18 years. For this, there is no cross-examination by the defence side regarding disputing the age of the PW.1 in the course of examination-in-chief. Mere putting suggestion in the cross-examination regarding the date and when the said suggestion is denied, then it carries no significance 15 regarding the say that PW.1 is major. Therefore, from the evidence as discussed above, it is proved that PW.1 was below the age of 18 years. Therefore, it is proved that PW.1 is child as per Section 2(d) of the POCSO Act.
13. PW.1 has stated in her evidence that she went to bore well for fetching water and at that time the appellant was coming after attending his natures call and on the pretext that he would lift the pot so as to put on the head of the PW.1, the appellant had dragged the PW.1 to nearby ditch and tried to stripping off of her clothes and also tried to commit the rape, but she had resisted and kicked the appellant and thus, in this way, she had escaped from the clutches of the appellant and ran away from the place towards her house and narrated this incident to her mother- PW.2. Then, PW.1 has stated regarding the spot panchanama conducted by the police. Before analyzing this evidence with reference to cross-examination, now it is worthwhile to 16 consider the evidence of PW.2, who is the mother of PW.1 regarding what she has stated in her examination- in-chief.
14. PW.2 has stated that her husband is mentally insane person and she is doing coolie work and further she stated that about one year and two months before, in the night at 8.30 p.m., the PW.1 went to bore well for fetching water and came after half an hour with crying and weeping and upon making enquiry, she told that the appellant had committed the offence as described above. Therefore, in this regard, the evidence of PW.2 is to be considered as relevant on the principle of res gestae as per Section 6 of the Indian Evidence Act. PW.2 is not an eyewitness to the incident, but immediately within a period of half an hour, the PW.1 had told this incident to PW.2. Therefore, under these circumstances, the evidence of PW.2 is found to be relevant on the principle of res restae as per 17 Section 6 of the Indian Evidence Act. But, whether the evidence of PW.2 inspires confidence of the Court is to be tested with the cross-examination. Then, upon considering the cross-examination of both PWs.1 and 2, it is revealed that there were 7 to 8 houses in and around the bore well and villagers were sitting in the courtyard of their houses and also there was electric pole and there was light and also the people were roving in and around the electric pole. Further it is revealed in the cross-examination of PW.1 that she fell in the ditch, as she was slipped while she was carrying plastic pot. Further, in the cross-examination of PW.1 it is revealed that the grand father of PW.1 and the appellant were working under the employment of one Shivraj Moolage and on the date of incident, the appellant and the grand father of PW.1 have worked till night 10.00 p.m. in his land.
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15. Therefore, upon considering the cross- examination as revealed, the learned counsel for the appellant submitted that what was deposed by the PW.1 in her examination-in-chief is washed away and therefore submitted that the appellant has not committed the alleged offence and the PW.1 herself was slipped into the ditch when she was carrying water filled pot. Therefore, in this way, the incident has occurred, but the appellant has been falsely fixed into the case. Further, the learned counsel for the appellant argued that the PW.14 - Investigating Officer had not seized the said plastic pot from the place of incident. Therefore, submitted this is one of the important circumstance negating the prosecution case. He further argued that there were 7 to 8 houses situated in and around the bore well and the electric pole and there was light and also the people were roving near the electric pole. Then, it was not possible for the appellant to attempt to ravish 19 the PW.1. Therefore, submitted that in this regard the prosecution case is found to be false.
16. Considering the evidence in the examination-in-chief and cross-examination as discussed above, in the light of the argument canvassed by the learned High Court Government Pleader, the evidence of PWs.1 and 2 is to be appreciated in their background of living condition. Both PWs.1 and 2 are illiterate and residing in the village. PW.1 is a rustic girl and PW.2 is a rustic woman. Therefore, it cannot be expected as if the evidence is to be given by an educated woman. There is always difference between the appreciation of evidence of two women, one is illiterate, rustic and residing in the village and another one is educated woman residing in town area or city. Therefore, in this background the evidence of PWs.1 and 2 is to be appreciated and also having in mind the fact that what was the necessity for PWs.1 and 2 to fix the 20 appellant in a false case at the cost of their chastity and reputation. Therefore, when the PW.1 had categorically deposed that the appellant has dragged her into ditch and tried to lift the nightly and at that time the PW.1 had kicked the appellant and escaped from his clutches and then ran away towards her house, this evidence is considered along with the cross-examination that the PW.1 had fallen in the ditch due to the slip when she was carrying water filled pot, but this element of cross- examination do not negate the evidence of PW.1 regarding the alleged offence committed by the appellant on her.
17. The PW.1 being a child below the age of 18 years, it would be highly improbable that putting her reputation and chastity has fixed the appellant into the case by making false allegations against the appellant. In this regard, there is no defence by the appellant why the appellant is tried to fix in a false case by the PWs.1 21 and 2. Just because a suggestion is made that at the behest of PW.4 a false case is filed, but the said suggestion is denied and in this regard no probable evidence by the defence or probable defence on behalf of the accused is available for what reason PWs.1 and 2 have fixed the appellant in false case. Therefore, upon considering and analysing the entire evidence on record, the evidence of PW.1 that what she has stated in her examination-in-chief inspires confidence of the court. Likewise, upon considering the evidence of PW.2 testing with cross-examination, the evidence of PW.1 is corroborated by the evidence of PW.2.
18. In this regard, upon considering the evidence revealed in the course of cross-examination that there are 7-8 houses situated near the borewell and also there was electric pole and there was electric supply on that night but the place of incident is village. Even though PW.14- Investigating Officer had not prepared sketch of place of occurrence, but, it is just and mere minor lapse 22 on the part of PW.14-Investigating Officer in not preparing sketch. But in spite of these lapses, the evidence of PWs.1 and 2 inspires confidence of the court as they have deposed regarding the alleged offences committed by the appellant as against the minor girl (PW.1). In that background the evidence of PWs.1 and 2 to be considered to the effect that they are illiterate, rustic and coolie woman residing in the village, therefore their evidence cannot be expected in educated manner. Even in the absence of corroboration from the evidence of PWs.5 and 6, the evidence of PWs.1 and 2 inspires confidence of the court. Therefore, prima facie PWs.1 and 2 what they have deposed in examination-in- chief is found to be trustworthy and believable.
19. The PW.1 had stated that she has produced before the Judge for recording her statement. Here as per the meaning of PW.1, the Judge is learned Judicial Magistrate First Class and PW.11 is the learned Magistrate and she has deposed that PW.1 was 23 produced before her and PW.1 has given statement under Section 164(5) of Cr.P.C., as it would be construed as recording of statement under Section 25 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Therefore, at very initial point of time PW.1 has given statement before the learned Magistrate as per Ex.P.2 before PW.11. Even statement recorded under Section 164(5) of Cr.P.C that the child can be recorded as substantive evidence and it cannot be used for the purpose of contradictions and omissions as per Sections 145 and 157 of Indian Evidence Act respectively but there is no much impeachment on the said aspect as recording the statement of PW.1 as per Section 164 (5) of Cr.P.C.
20. PWs.3 and 4 are the spot panch witnesses and seizure panch witnesses and their role is minor in nature. PW.12 is the Engineer of KPTCL who has stated that on the date and time of the alleged incident there was electric supply and line in the electric pole was 24 going on. PWs.13 and 14 are the Investigating Officers who have conducted investigation and filed charge sheet.
21. Therefore upon considering the evidence of the above said witnesses much particularly the evidence of PWs.1 and 2 and PW.2 is a witness as res gestae and therefore the exact nature of evidence is to be appreciated from the deposition of PW.1. Upon considering the evidence of PW.1, the act of the appellant at the most is proved to be sexual assault coming within the definition of Section 7 of the POCSO Act as well as Section 354-B of IPC. It is the allegation against the appellant that the appellant has dragged the PW.1 into ditch by gagging her mouth and in the attempt of stripping up of cloth at that moment the PW.1 had escaped from the clutches of the appellant. Therefore, in this regard, it is worthwhile to refer the definition of Section 354-B of IPC and Section 7 of the POCSO Act.
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22. Section 354-B of IPC, is extracted as below :-
"354-B. Assault or use of criminal force to woman with intent to disrobe.- Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine."
Section 7 of POCSO Act, is extracted as below :-
"7. Sexual assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
23. Therefore, the offence described by PW.1 is having committed by the appellant against her is will is considered, the ingredients of Sections 7 of the POCSO 26 Act and Section 354-B of Cr.P.C are attracted in the present case and accordingly proved. But the Special Court has convicted the appellant for the offence punishable under Section 376 r/w sec.511 of IPC and under Section 4 r/w sec.18 of the POCSO Act. As per Section 42 of the POCSO Act, there is alternate punishment prescribed and upon proving of the offence either the accused can be convicted under the provisions of Indian Penal Code or under the POCSO Act and whichever the punishment is determined in degree under that provision the accused is liable to be convicted but not both under, because the word used in Section 42 of the POCSO Act is "or under". Therefore, under these circumstances, either the appellant be convicted for the offence punishable under Section 376 r/w sec. 511 of IPC or under Section 4 r/w sec.18 of POCSO Act but not both under. But in the present case from the evidence of PW.2, it is revealed that neither the offence punishable under Section 376 r/w sec. 511 of 27 IPC nor under Section 4 r/w sec.18 of the POCSO Act is proved but at the most the offence under Section 7 of the POCSO Act and under Section 354-B of IPC are proved.
24. Furthermore, there is no evidence that the appellant criminally intimidated either PW.1 or PW.2 so as to attract the offence under Section 506 of IPC. Therefore, from the evidence of PW.1 as well as PW.2, it is not proved that the appellant had criminally intimidated PW.1 so as to attract the offence under Section 506 of IPC. In the present case there is no evidence from the prosecution that the appellant is liable to be convicted for the offence punishable under Section 506 of IPC.
25. Therefore, under these circumstances, upon considering the evidences on record with cumulative effect as above discussed, the appellant is liable to be convicted for the offence punishable under Section 7 of 28 the POCSO Act and also under Section 354-B of IPC but not under Section 376 r/w sec. 511 of IPC and under Section 4 r/w sec.18 of POCSO Act.
26. Section 29 of the POCSO Act stipulates regarding presumption as to certain offences. For ready reference, Section 29 of the POCSO Act is extracted as under;
"29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
27. Section 30 of the POCSO Act stipulates regarding presumption regarding culpable mental State which reads as follows;
"30. Presumption of culpable mental state.1(1) In any prosecution for any offence under this Act which requires a culpable mental state on the 29 part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charges as an offence in that prosecution.
(2) For the purpose of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.- In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact"
28. Therefore, as per Section 29 of the POCSO Act, a presumption can be raised so far as commission of offences under Section 3, 5, 7 & 9 of the POCSO Act and the Special Court shall presume that such person has committed or abetted or attempted to commit the offence unless the contrary is proved. In the present case, the special Court has not discussed anything 30 about this legal provision as enunciated under the provisions of the POCSO Act.
29. Upon considering the factual matrix involved in the present case, a presumption can be raised that the accused has committed the offence alleged, this presumption can be raised after the facts in issue are proved by the prosecution as discussed above. There is no straightaway jacket formula to raise the presumption, but the prosecution has to establish the fact in issue that such and such offence has been committed, then presumption can be raised. Accordingly, the prosecution in the present has established the fact that the appellant has committed the offence. If the accused is able to rebut presumption by way of placing probable evidence that is sufficient to say that presumption is successfully rebutted. For rebutting presumption by accused, there is no need to rebut beyond reasonable doubt, but mere believable probable evidence is/are sufficient. But the appellant 31 has not placed any contra evidence to rebut this presumption in the present case.
30. Further Section 30 of the POCSO Act deals regarding culpable mental State of the accused and raising the presumption as per explanation provided therein that culpable mental state includes intention, motive, knowledge of a fact and belief therein or reasons to believe a fact. The culpable mental state is a collective intention or knowledge or motive in the mind of the person who is prosecuted before the court having committed such crime. The culpable mental state of the appellant can be presumed on the basis of proven facts which is proved in the given case which can be by beyond reasonable doubt. But such culpable mental state cannot be presumed by preponderance of probability.
31. Considering the argument canvassed by the learned counsel for the appellant that as per Section 24 32 of the POCSO Act the statement of PW.1 ought to have recorded by the woman police officer not below the rank of sub-inspector. But, in the present case a woman police constable had recorded the statement of PW.1. Therefore, submitted that there is violation of Section 24 of the POCSO Act. Upon careful reading of Section 24 of the POCSO Act, it is stated that as far as practicable statement of victim can be recorded by woman police officer not below the rank of the sub-inspector. Therefore, the word used 'as far as practicable' when a word police officer not below the rank of the sub- inspector is available then such officer can record statement. In the present case the statement is recorded by the woman police constable that cannot vitiate the entire investigation because in Section 24 of the POCSO Act the word used is 'as far as practicable'. Since it is expressed that 'as far as practicable'. If the woman police officer not below the rank of sub-inspector are not available then other woman officer even though below 33 the rank of Sub-Inspector can record such statement and therefore it is not mandatory that the woman police officer not below the rank of sub-inspector can always record the statement of victim. Therefore the intention of legislature is that if woman police officer not below the rank of sub-inspector is not available then the such police officer can also very well record the statement by any other woman police official. Therefore, it is not mandatory that always woman police officer not below the rank of sub-inspector can record the statement of PW.1. Therefore, in this regard, just because the woman police officer not below the rank of sub-inspector has not recorded the statement of the victim that cannot vitiate the investigation in the present case. Therefore, I do not find any merit in the submissions made by the counsel for the appellant.
32. Then upon considering the delay in lodging the complaint as it is 18 hours delay in lodging the complaint and FIR and considering the statement in the 34 eventualities occurred in the present case on 12.01.2016 at 8.30 pm the alleged incident was occurred and the complaint was lodged on the next day on 13.01.2016 at 3.00 pm. Therefore, when the incident was occurred at 8.30 pm quite naturally the father of PW.1 is mentally insane person and there were only female members in the family with children, it cannot be expected that the PWs.1 and 2 to go to the police station on the night itself and to lodge complaint. Therefore, they have waited till the next day morning and when this trauma is occurred in the mind of PW.1 quite naturally on the next day at afternoon 3.00 pm complaint was lodged. Therefore, considering all these eventualities, it cannot be said that there is delay in lodging the complaint and registration of FIR and this delay cannot go to the core of the prosecution case.
33. Even considering the submission made by the counsel for the appellant that as per Rule 12 of Juvenile Justice (Care and Protection of Children) 35 Rules, 2016 the Juvenile Justice Board or Special Court had not determined the age of the PW.1 but PW.14 had made arrangement for sending medical examination and PW.7-Doctor stated that PW.1 is found to be below the age of 18 years, which is not impeached in the course of trial. Therefore, before the Special Court there is material produced by the prosecution through evidence of PW.7 that PW.1 was found to be below the age of 18 years upon ossification test and x-ray examination. Therefore I do not find any merit in the submissions made by the counsel for the appellant.
34. Considering the entire evidence on record and upon taking with cumulative effect, the evidence of PWs.1 and 2 inspire confidence of the court so far as the act committed by the appellant as gagging the mouth and tried to disrobe PW.1 which attracts the offence punishable under Section 7 of the POCSO Act and Section 354-B of IPC but certainly do not attract the offence punishable under Section 376 r/w sec.511 36 of ICP and Section 4 r/w 18 of the POCSO Act. Therefore, the appellant is liable to be convicted for the offence punishable under Section 7 of the POCSO Act and Section 354 of IPC and the appellant is liable to be acquitted from the offence punishable under Section 376 r/w sec.511 and under Section 4 r/w sec.18 of the POCSO Act.
35. For the offence punishable under Section 7 of the POCSO Act the punishment prescribed for imprisonment for not less than three years but may extend to five years and for the offence punishable under Section 354-B of IPC the punishment prescribed is for simple imprisonment for not less than three years but which may extend to seven years and also with fine.
36. Therefore, in this way the appeal succeeds in part and thus the judgment of conviction and order on sentence recorded by the Special Court is liable to be modified by setting aside so far as conviction and 37 sentence is made for the offence punishable under Section 376 r/w sec.511 and under Section 4 r/w sect.18 of the POCSO Act. Hence, I proceed to pass the following :
ORDER The criminal appeal is hereby allowed.
The judgment of conviction dated 08.11.2017 and order on sentence dated 16.11.2017 recorded by the Special Judge and Addl. District and Sessions Judge, Bidar is hereby modified to the extent that the appellant is convicted for the offence punishable under Section 7 of the POCSO Act and Section 354-B of IPC. The appellant is acquitted from the charges levelled under Section 376 r/w sec.511 of IPC and Section 4 r/w Section 18 of the POCSO Act and under Section 506 of IPC.
The appellant during trial was in custody from 20.01.2016 till 04.06.2016. Then upon conviction of the 38 appellant from 08.11.2017, till this day the appellant is in custody. Therefore, the appellant is in custody totally for a period of 03 years 02 months and 8 days.
Since the appellant has suffered imprisonment for more than three years, therefore what was the period undergone in the custody that is made set off to the appellant.
Further the appellant is fined of Rs.10,000/- for each of the offences under Section 7 of the POCSO Act and Section 354-B of IPC and in default to pay fine amount then the appellant shall undergo further simple imprisonment for a period of six months.
Upon payment of fine amount as above stated the appellant be released from the custody.
Sd/-
JUDGE LG/sn