Karnataka High Court
Gangadhar S/O. Mallappa Yandigeri vs The State Of Karnataka on 23 December, 2021
IN THE HIGH COURT OF KARNATAKA
AT DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.A.NO.2501/2013
BETWEEN:
GANGADHAR
S/O MALLAPPA YANDIGERI,
AGE : 28 YEARS,
OCC; GENERAL STORE BUSINESS,
R/O MANTUR, TQ: MUDHOL,
DIST: BAGALKOT.
... APPELLANT
(BY SRI VYAS DESAI ADV. FOR SRI JAGADISH PATIL, ADV.)
AND :
THE STATE OF KARNATAKA,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD.
... RESPONDENT
(BY SRI PRAVEEN K.UPPAR, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF THE
CODE OF CRIMINAL PROCEEDURE PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT PASSED BY THE COURT OF FAST
TRACK, JAMKHANDI IN SESSIONS CASE NO.49/2011 DATED
20TH NOVEMBER 2012 AND ACQUIT THE APPELLANT FROM THE
CHARGES LEAVED AGAINST HIM BY ALLOWING THIS APPEAL IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR THIS APPEAL HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.11.2021,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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: JUDGMENT :
The appellant being the accused in S.C.No.49/2011 on the file of learned District and Sessions Judge and Presiding Officer, Fast Track Court, Jamkhandi ("the Trial Court" for short) is before this seeking to set aside the impugned judgment of conviction and order of sentence dated 20.11.2021, where under he was convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.2,000/- and in default to pay fine he shall suffer further rigorous imprisonment for a period of three months for the offence punishable under Section 366A of the Indian Penal Code ("IPC" for short) and to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.5,000/- and in default to pay fine he shall further suffer rigorous imprisonment for a period of six months for the offence punishable under Section 376 of IPC. 3
2. Brief facts of the case are that, the appellant was charged for the offence punishable under Sections 366(A) and 376 of IPC on the allegation that on 18.04.2011 at 1.15 p.m., the accused procured the minor girl, who was below the age of 16 years, with an intention to have illicit intercourse with her and had taken her away from the custody of her lawful guardian, taken her to various places, committed rape on 22.04.2011 and thereby committed the offences as stated above.
3. On the basis of the first information lodged by PW.1, the father of the victim, the investigation was undertaken and the charge sheet was came to be filed. The learned Magistrate took cognizance of the offence and committed the matter to the Trial Court. The Trial Court summoned the accused to appear before the Court. The accused has pleaded not guilty for the charge leveled against him for the said offences and claimed to be tired.
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4. The prosecution in order to prove the guilt of the accused, examined 17 witnesses got marked 31 documents and identified 9 material objects in support of its contention. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. But has not chosen to lead any evidence in support of his defence. However, during cross-examination of the prosecution witness, Exs.D.1 and 2 came to be marked. The Trial Court after taking into consideration of all these materials on record came to the conclusion that the prosecution is successful in proving the guilty of the accused beyond reasonable doubt. Accordingly the accused was convicted and sentenced for the above stated offences.
5. Being aggrieved by the judgment of conviction and order of sentence passed by the Trial Court, the accused is before this Court seeking to set 5 aside the same and to acquit him for the above said offences in the interest of justice.
6. Heard Sri Vyas Desai learned counsel for the appellant and Sri Praveen K.Uppar, learned High Court Government Pleader for respondent-State.
7. Learned counsel for the appellant has addressed his arguments and also filed his written submission. Perused the same.
8. It is the contention of the learned counsel for the appellant that the age of the victim that she was under the age of 16 years is not proved by the prosecution in accordance with law. Under such circumstances, Section 366A of IPC could not have been invoked by the Trial Court. Even with regard to commission of the offence under Section 376 of IPC, there are absolutely no materials placed before the Court except the interested testimony of the victim girl. Serious doubt arises from the evidence of the victim girl. Her version is not corroborated by any 6 other material. Even the medical evidence and the RFSL report are not helpful to the case of the prosecution. Under such circumstances, the Trial Court committed an error in convicting the accused. The Trial Court should not have given the benefit of doubt to the appellant and he should have been acquitted. Since the impugned judgment of conviction and order of sentence passed by the Trial Court is perverse, the same is liable to be set aside. Accordingly he prays for allowing the appeal.
9. per contra, learned High Court Government Pleader opposing the contention taken by the learned counsel for the appellant contended that the prosecution examined PW.1, the father of the victim girl, who lodged the missing complaint on 20.04.2011. PW.2 is the scribe who wrote the first information i.e., missing complaint lodged by PW.1. PW.3 is the victim herself who stated that she was born on 02.06.1995 and she is the informant who filed first information as 7 per Ex.P.2. This witness narrated the offence committed by the accused in detail. Even though the witness was cross-examined at length nothing has been elicited from her. The prosecution has also examined PW.10 to prove the age of the victim as 16 years at the time of incident. PW.11 is the doctor who examined the victim girl and issued Exs.P.22, 23 and
25. PW.17 is the Investigating Officer who conducted the investigation and filed the charge sheet. Apart from these material witnesses, the prosecution has also examined the other circumstantial and formal witnesses. From these materials on record, the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The Trial Court taken all these materials into consideration and rightly formed an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. There are no materials to contend that the impugned judgment of conviction is perverse or illegal. There are no grounds to interfere with the impugned 8 judgment of conviction and order of sentence passed by the Trial Court. Hence, he prays for dismissal of the appeal.
10. Perused the materials on record.
11. In the light of the rival contentions of learned counsel for both the parties, the point that would arise for consideration of this court is as follows:
"Whether the impugned judgment of conviction and order of sentence dated 20.11.2012 passed in S.C.No.49/ 2011 on the file of the Trial Court for the offence punishable under Sections 366A and 376 of IPC calls for interference by this Court?"
12. My answer to the above point is in the 'affirmative' for the following :
: REASONS :
13. It is the specific contention of the prosecution that the accused who was knowing the minor girl, procured her and taken away from her guardian with an intention to commit illicit intercourse 9 and thereby committed the offence punishable under Section 366A of IPC. Further the accused committed rape on the victim and has committed offence punishable under Section 376 of IPC. To prove this contention the prosecution examined PW.1, who filed the missing complaint on the initial stage on 20.04.2011.
14. PW.1 stated that, his daughter is aged 16 years and was studying in 10th Standard. The accused was running a Kirana store in the village. The victim was knowing the accused. Witness stated that on 18.04.2011 the victim had not returned to the house. He searched for her for two days and on 20.04.2011 lodged the first information as per Ex.P.1. On 23.04.2011 the victim girl returned to the house along with police. On enquiry she informed that the accused had taken her away and both of them have went to Hubballi, Dharwad, Davanagere and Aasangi. When they were in Aasangi, the accused committed rape on 10 her. Therefore, the victim was taken to the police Station. She lodged the first information against the accused. During cross-examination of this witness, he denied the suggestion that the victim is aged more than 18 years and deposing falsely with regard to her age. He also denied the suggestion that the complainant was having ill-will against the accused and therefore the false complaint was came to be lodged.
15. PW.2 is a formal witness who wrote Ex.P.1.
16. PW.3 is the victim girl who stated that she was studying in 10th Standard and was born on 02.06.1995. The accused was having Kirani store near her school and therefore she was knowing him. She used to purchase kirani items from his shop. On 18.04.2011 at 12.30 p.m., she was standing near the entrance arch, accused came there and asked her to accompany him to Jamkhandi. When she refused to accompany him as she has not informed her family 11 members, accused assured that he informed her family members and she may not have to worry. Accordingly she went with him. Both of them went to Mudhol, in a bus. Thereafter gone to Jamkhandi. They have visited several sites. Thereafter visited Hubballi and Davanagere. In Hubballi and Davanagere they visited several places and spent about two days in Davanagere. They spent night hours in bus-stand.
17. Witness stated that, the accused took her to Aasangi village and they went to the house of his maternal aunt-Chandrawwa Hanchinal on 22.04.2011. Thereafter he took the victim girl to their land where sugarcane crop was grown. In the sugarcane filed the accused committed rape on her. They spent that night in the house of said Chandrawwa Hanchinal and on the next day she returned to her house. The maternal aunt of the accused enquired about the victim and the accused informed that she is related to him Witness states that she narrated the incident to her parents 12 who have scolded her and all of them went to police station. She carried the clothes which she was wearing at the time of incident to the police station and lodged the first information as per Ex.P.2. She was examined by the medical officer. She identified her dress as MOs.1 to 4. She stated that she had shown the scene of occurrence to the Police who have drawn panchanama as per Ex.P.3 and Ex.P.8. Witness stated that, she treated the accused as her brother and had accompanied him.
18. During cross-examination by the learned counsel for the accused, the witness sated that when she left the house on 18.04.2011, PW.1 had scolded and assaulted her. She denied the suggestion that she was in constant touch with the accused and was calling him very frequently and was also sending messages.
19. Witness states that on the date of incident on 12.30 p.m., she was standing near the arch and 13 immediately the accused came there. Within five minutes they boarded the bus and went to Mudhol via Bilagi. There were several passengers in the bus but she has not informed any of them that the accused is taking her away. When they alighted the bus in Mudhol there were several persons. She has not complained with any of them. So also she has not complained with anybody, either in Hubballi or Davanagere etc. They stayed in the bus-stand of Davanagere for two nights. On 22.04.2011 they went to the house of the maternal aunt of the accused. There were 7 or 8 person in the house. Thereafter they went to the sugarcane filed, where the accused committed the offence. Immediately thereafter they went back to the house of the maternal aunt of the accused. She has not complained against the accused with anybody. On the next day the accused brought her back to the village. Witness stated that she resisted the accused and opposed commission of the offence. She admitted that if such an act was 14 committed in the sugarcane filed, there is every chances of sustaining injuries. But stated that she had sustained injuries on her back. She denied the suggestion that she filed false complaint against the accused even though she is aged more than 18 years and the accused had not committed any offence as alleged.
20. PW.5 is the mother of the victim who is a circumstantial witness. PW.6 is villager who is also a circumstantial witness who states that on 18.04.2011 he had seen the victim girl standing with the accused.
21. PW.10 is the Head Master of Higher Primary School, Mantur. Witness stated that the victim girl was the student of his school and studying in 10th Standard. He has given the date of birth certificate of the victim on the basis of the documents that were available in his school, they are Exs.P.16 to 18. During the course of cross-examination, witness stated that the victim was admitted to the school on the basis of 15 the Transfer Certificate issued by the School where the victim studied 7th Standard. He pleaded his ignorance as to in which Schoo she studied up to 7th Standard. He also pleaded his ignorance as to the basis on which the date of birth is mentioned in the school record.
22. PW.11 is the doctor who examined the victim on 24.04.2011. Witness stated that the history of incident was given by the victim herself which had taken place on 22.04.2011 at 11.20 a.m. She examined the victim on 24.4.2011 at 12.00 in the midnight. The hymen was torn. The victim complained of pain in her private part. There were no external injuries. She issued Ex.P.23. Witness admitted that if a person forcibly commits rape, there is every possibility of the victim sustaining injuries.
23. During cross-examination, the witness stated that, there were no signs or injuries to show resistance by the victim. Her clothes were not torn. She denied the suggestion the victim was not 16 subjected to sexual assault. Witness also stated that she had not determined the age of the victim nor any ossification test was held.
24. PW.17 is the Investigating Officer who deposed regarding the investigation under taken by him.
25. Ex.P.1 is the missing complaint lodged by PW.1, the father of the victim girl. Ex.P.2 is the first information lodged by the victim narrating the very same fact that the accused had invited her and accordingly she accompanied him on 18.04.2011. She was taken to various places and finally on 22.04.2011 she was taken to his maternal aunt's house and both of them went to sugarcane filed wherein he committed rape.
26. Ex.P.17 is the school admission certificate issued by PW.10 in favour of the victim as per this document the victim was studying from 8th Standard to 10th Standard in Government Higher Primary 17 School, Mantur and her date of birth is 02.06.1995. Ex.P.18 is also the certificate issued by PW.10 to the effect that the victim girl has taken SSLC examination for the said academic year.
27. Ex.P.22 is the profarma of the examination of victim of rape. According to which, the victim was examined by PW.11 and her hymen was found ruptured. There were no external injuries sustained by the victim and the medical officer is of the opinion that there was sexual intercourse that had happened.
28. Ex.P.23 is he wound certificate issued by PW.11 certifying that the victim had not having any injuries on her body. When the victim had brought to her with the history of assault on 22.04.2011 at 11.20 a.m.
29. Ex.P.25 is the medical report concerning to victim girl and as per the final opinion of the RFSL, the presence of seminal stains was negative in the cloths 18 that were examined and the accused had also not sustained any injuries.
30. The RFSL report is as per Ex.P.30.
According to which, the presence of seminal stains was found negative in Item No.1 to 4 and 6, 8 and 9.
31. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C nor he examined himself or any other witnesses in support of his defence.
32. It is the specific contention of the prosecution that, the accused had committed the offence punishable under Section 366A of IPC. To attract Section 366A, the prosecution has to prove that the victim is under the age of 18 years and she was procured by the accused either by force or by seducing for the purpose of committing illicit intercourse. The evidence of PW.10, the Head Master of the School where the victim said to be studying 19 discloses that he issued Ex.P.16 and 17 on the basis of the School records. During cross-examination, the witness pleads ignorance regarding the basis on which the date of birth is recorded in the school records.
33. Learned counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in Jernail Singh Vs. State of Haryana1, wherein the Hon'ble Apex Court laid down the procedure for determining the age of the victim under the POCSO Act. The Hon'ble Apex Court referred to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 ("Rules 2007" for short), which prescribes procedure to be followed in determination of the age of the child in conflict with law and held in paragraph No.23, which reads as under:
"Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a 1 (2013) 7 SCC 263 20 child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied 21 upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion"
34. Therefore it is clear that in the absence of specific provision for determination of the age of the victim under POCSO Act, Rule 12 of Rules 2007 is 22 made applicable. As per Rule 12(3)(2) of the Rules 2007, the date of birth certificate from the School first attended is to be preferred in the absence of the certificate of matriculation or equivalent to that. In the present case it is the contention of the prosecution that the victim was still studying in 10th Standard. Therefore, the prosecution chose to produce Ex.P.16 and 17 to prove the date of birth of the victim. The requirement of law under the above rule, is the date of birth certificate from the school first attended by the victim. But Ex.P.17 is the certificate issued by PW.10 which specifically states that the victim was studying in the school from 8th Standard to 10th Standard. He pleaded his ignorance on what basis the date of birth is mentioned in the School records.
35. When the accused specifically denies that the victim was a minor aged under 18 years, heavy burden lies on the prosecution to prove the same in accordance with law. Except the oral say of PW.3 and 23 Ex.P.17 issued by PW.10 there are no other materials to conclude that the victim was aged 16 years as contended by the prosecution. Under such circumstances, it cannot be concluded that the prosecution is successful in proving that the victim was under the age of 18 years at the time of incident.
36. It is the contention of the prosecution that the victim was procured by the accused by inducing her to take her to various places. Even according to PW.3 she was not resisted while going along with accused at any time. They gone around to several places and finally visited the house of the maternal aunt of the accused. The victim specifically stated that there are 7 or 8 persons in the said house. She has not complaining anything with them. Thereafter both of them went to sugarcane filed where the accused said to have committed rape. Victim specifically states that after the incident both the them returned back to the house. But she has not complained against the 24 accused. On the other hand, on the next both of them returned back to their village. The victim came back to her house and narrated the incident on questioning by her parents, who said to have scolded her.
37. The conduct of the victim discloses that she never resisted nor objected the act of the accused. When the prosecution failed to prove that the victim is a minor, this conduct of the victim assumes importance. When the prosecution taken a specific stand that the accused had committed an offence punishable under Section 366A of IPC, it is incumbent on the prosecution to prove that the victim was under
the age of 18 years. In the absence of such proof, it cannot be said that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 366A of IPC. When there is nothing on record to conclude that the victim is minor, the conduct of the victim in not raising any objection while going along with the accused, even immediately 25 after the incident in question, assumes importance and it cannot be said that the accused has committed rape on her forcibly. There is reasonable doubt arising in the mind of the Court while considering the contention of the prosecution in the matter of commission of offence by the accused.
38. Except the testimony of PW.3-the victim herself, absolutely no other materials are placed to substantiate the contention of the prosecution. Even as per the medical records except the fact that her hymen was torn, there are no other signs of committing the offence. Even though PW.3 states that she had preserved her cloths which she was wearing at the time of incident and handed over to the police, the RFSL report which is as per Ex.P.13, gives negative report for presence of seminal stains. The medical certificate also gives a negative report for any such offence committed by the accused. 26
39. When serious doubt arises about the commission of the offence by the accused, it is the bounden duty of the prosecution to place cogent material to substantiate its contention. Except the evidence of PW.3 there are no other materials to substantiate her say about commission of the offence under Section 376 of IPC. When the version of PW.3 is shady, corroboration of her evidence is very necessary. The prosecution has not examined any of the persons who are said to be present in the house of material aunt of the accused to probablise the contention of the prosecution.
40. Learned counsel for the accused placed reliance on the decision of the Hon'ble Apex Court in Razak Mahammad Vs. State of Himachal Pradesh (2018) 9 SCC 248, wherein on the facts and circumstances of the case, the Hon'ble Apex Court held that there is ample doubt with regard to the correct age of the prosecutrix and the mere fact that 27 the victim has freely moved with the accused and never complained with anybody with whom she was confronted, either before or after commission of the offence, would give rise to reasonable doubt about the contention of the prosecution and therefore, acquitted the accused. The facts and circumstances of the said case aptly applies to the facts and circumstances of the present case. Except the interested testimony of the prosecutrix there are no other materials to prove the contention of the prosecution. Therefore, I am of the opinion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt and therefore, the accused is to be given the benefit of doubt and he entitled to be acquitted.
41. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court, it has proceeded to convict the accused only on the basis of the evidence of the Head Master of the School in support of the birth certificate 28 and the version of PW.11, the doctor who examined the victim and proceeded to convict the accused. Therefore I find it appropriate to set aside the impugned judgment of conviction and order of sentence passed by the Trial Court. Accordingly, I answer the above point in the 'affirmative' and proceed to pass the following:
: ORDER :
The appeal is hereby allowed.
The impugned judgment of conviction and order of sentence dated 20.11.2012 passed in S.C.No.49/2011 on the file of the Trial Court for the offence punishable under Section 366A and 376 of IPC is hereby set aside.
Consequently, the appellant/ accused is acquitted for the offence punishable under Sections 366A and 376 of IPC.
Fine amount deposited, if any, by the accused is ordered to be refunded to him on due identification.29
The bail bounds of the accused and that of his sureties stand cancelled.
Send back the Trial Court records along with copy of this judgment.
SD/-
JUDGE EM