Karnataka High Court
Shiba Riklasana vs The State Of Karnataka on 10 February, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:5915
CRL.A No. 2056 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO.2056 OF 2022 (C)
BETWEEN:
1. SHIBA RIKLASANA
S/O SHITESH RIKIASAN
AGED ABOUT 24 YEARS
R/O AT: DOG CARE CENTRE
NEAR CHAITHANAYA SCHOOL
JAMBUSAVARI
AISHWARYA LAYOUT
BANGALORE -560 048
...APPELLANT
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY INSPECTOR OF POLICE
Digitally THALAGATTAPURA POLICE STATION
signed by BANGALORE
MALATESH REPRESENTED BY
KC STATE PUBLIC PROSECUTOR
Location: HIGH COURT OF KARNATAKA
HIGH BANGALORE -560 001
COURT OF
KARNATAKA
2. VICTIM GIRL REPRESENTED BY
MRS. MOHAMMAD NAJEEB ULLA
W/O MOHAMMAD ISMAYIL
AGE 45 YEARS
(MOTHER OF VICTIM GIRL)
NO.50, NEAR CHAITHANYA SCHOOL
JAMBAUSAVARI DINNE
AISHWARYA LAYOUT
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NC: 2025:KHC:5915
CRL.A No. 2056 of 2022
BANGALORE - 560 048
...RESPONDENTS
(BY SRI RAHUL RAI.K, HCGP FOR R1/STATE;
NOTICE TO R2 SERVED AND UNREPRESENTED)
THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 28.03.2022 AND ORDER OF SENTENCE DATED
31.03.2022, PASSED BY THE ADDITIONAL SESSIONS JUDGE,
FTSC-II, BENGALURU RURAL DISTRICT, BENGALURU IN
SPL.C.NO.630/2018, CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 366, 376(3),
506 OF IPC AND SECTION 5(L) R/W SECTION 6 OF POCSO
ACT.
THIS APPEAL, COMING ON FOR FINAL ARGUMENTS, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Veeranna G Tigadi, learned counsel for the appellant and Sri Rahul Rai K., learned High Court Government Pleader for respondent.
2. Appellant has been convicted in special Case No.630/2018, on the file of Additional Sessions Judge, FTSC-II, Bengaluru Rural District, Bengaluru and sentenced as under:
Accused is sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs.25,000/ -, in default of payment of above said fine, he shall undergo S.I. for 3 months for the offence punishable u/s.5(1) punishable under Section 6 of the POCSO Act.-3-
NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 Accused is sentenced to undergo simple Accused imprisonment for a period of 5 years with fine of Rs.25,000/ - in default of payment of above said fine, he shall undergo S.I. for 3 months for the offence punishable under Section 366 of IPC.
Accused is sentenced to undergo simple imprisonment for a period of 1 year with fine of Rs.5,000/-, in default of payment of above said fine, he, shall undergo S.I. for 2 months for the offence punishable under Section 506 of IPC.
There shall be set-off in the period of sentence for the detention already undergone by the accused in terms of Sec.428 of Cr.P.C.
Out of the fine amount Rs.50,000/- be paid to the victim girl i.e. P.W.2 in terms of Sec.357(1)(b) of Cr.P.C.
As per Section 33(8) of POCSO Act, P.W.2 is entitled for compensation of Rs.3 lakhs. If the victim girl has already received the interim compensation after deducting the amount paid, the balance amount to be Paid to the victim girl.
Copy of the sentence shall be sent to the District Legal Service Authority, Bengaluru Rural District for payment of compensation.
Office is hereby directed to supply free copy of the judgment to the accused herein.-4-
NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 Further, office is directed to send a copy of the findings and sentence imposed in this case to District Magistrate as required u/s.365 of Cr.P.C.
The sentence of imprisonment awarded herein to the accused above shall run concurrently.
Issue conviction warrant accordingly."
3. Essential facts for disposal of the appeal are as under:
Inspector of Police, Thalaghattapura police station, Bengaluru filed a charge sheet against the accused for the offences punishable under Sections 363, 366, 506, 376 (3) Indian Penal Code (for short 'IPC') r/w Section 4 and 6 of Prevention of Children from Sexual Offences (for short 'POCSO') Act.
4. Facts which could be culled out from the charge sheet materials are that on 20.09.2018 at about 9.00 a.m., near glass factory bus stand, Avalahali, within the limits of Thalaghattapura police station, appellant said to have kidnapped the victim girl and they went in a bus and thereafter boarded a train and reached Hailakandi, Assam State in the -5- NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 guise of marrying her pursuant to the alleged love affair between them since two years.
5. After taking her to said place, accused made a rented house, wherein promising the victim girl to marry her, accused said to have committed forcible sexual intercourse with the victim girl who was aged about 15 years.
6. Noticing the missing of victim girl, a complaint came to be lodged with Thalaghattapura police who after registering the case, completed the investigation inter alia traced the appellant as well as the victim girl. Victim girl was taken to the nearest Magistrate for the purpose of recording the statement under Section 164 Cr.P.C., which is marked at Ex.C.1. In the said statement, victim girl stated about the voluntarily proceeding with the appellant in furtherance to the love affair which they had. But, she did not whisper anything about the forcible physical relation or penetrative sexual assault said to have been committed by the appellant on her.
7. However, after the victim girl was rescued, one more statement was recorded before the Magistrate at Bengaluru under Section 164 Cr.P.C., wherein victim girl stated about the physical relationship accused had with her. -6-
NC: 2025:KHC:5915 CRL.A No. 2056 of 2022
8. On completion of the investigation, charge sheet came to be filed for the aforesaid offences.
9. On securing the presence of the accused, learned Special Judge framed the charges for the aforesaid offences which was denied by the appellant.
10. In order to bring home the guilt of the appellant, prosecution examined 17 witnesses as P.Ws.1 to 17 and got marked twenty one documents as Exs.P.1 to P.21 and two documentary evidence in the form of 164 statement as Ex.C.1 and Ex.C.2.
11. On behalf of the prosecution, eight material objects were also marked as M.Os.1 to 8, comprising of dress worn by the victim girl including the under garments, pubic hairs and vaginal swab.
12. On conclusion of recording of prosecution evidence, learned Trial Judge recorded the accused statement as is contemplated under Section 313 Cr.P.C., wherein accused simply denied all the incriminatory materials and did not offer proper explanation.
13. Accused did not place any rebuttal evidence on record in the form of either examining himself or any witnesses -7- NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 on his behalf nor placed any written submission as is contemplated under Section 313 (4) Cr.P.C.
14. Thereafter learned Trial Judge heard the parties in detail and on cumulative consideration of the material and documentary evidence placed on record, convicted the accused for the aforesaid offences and sentenced as referred to supra.
15. Being aggrieved by the same, appellant is before this Court.
16. Sri Veeranna Tigadi, learned counsel for the appellant reiterating the appeal grounds contended that at the first point of contact of the victim girl with the criminal justice system after the police rescued her from the clutches of appellant and when her statement was recorded before the Magistrate at Hailakandi, Assam State marked at Ex.C.1, the victim girl has not whispered anything about the physical relationship and it is only after she has been brought back to Bengaluru, one more statement under Section 164 Cr.P.C., came to be recorded by the investigating Agency wherein victim girl was tutored to say about the physical relationship. He further argued that the medical evidence did not corroborate with the second statement said to have been made -8- NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 by victim girl which exposes the hollowness in the case of the prosecution, which has been ignored by the learned Trial Judge while passing the impugned judgment and sought for allowing the appeal.
17. He would further contend that the offence under Section 366 IPC, would not attract inasmuch as, in Ex.C.1 itself, the victim girl has stated that she had love affair with the appellant and she voluntarily accompanied the accused and following the dictum of Hon'ble Apex Court in the case of S.Varadarajan vs. State of Madras, reported in 1964 SCC OnLine SC 36, conviction of the appellant for the offence punishable under Section 366 IPC is impermissible and sought for allowing the appeal in toto.
18. Alternatively, learned counsel for the appellant would contend that in the event this Court accepting the oral testimony of victim girl with the available corroborative evidence on record, the act of the appellant would only be traceable under Section 8 of the POCSO Act, whereby the custody period already undergone by the appellant may be treated as period of imprisonment and appellant be set at free by allowing the appeal in part.
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19. Per contra, Sri Rahul Rai, learned High Court Government Pleader supports the impugned judgment. He would further contend that the material on record would be sufficient enough to maintain the conviction of the appellant for the aforesaid offences and sought for dismissal of the appeal.
20. He would further contend that the statement given by the victim girl vide Ex.C.1 cannot be taken advantage by the appellant inasmuch as when victim girl was examined before the Magistrate under Section 164 Cr.P.C., police were present and she was far away from her native place, inasmuch as there was no security for her and after coming to Bengaluru, she had moral security of her parents and whereby she has actually revealed the factual aspects which has taken place in the house from where she has rescued. Therefore, conviction of the appellant is perfectly maintainable.
21. Learned High Court Government Pleader would also further contend that in a matter of this nature, when the basic facts were established by the prosecution, the prosecution enjoys the presumption under Section 29 of the POCSO Act and mental status of the accused is also presumed under Section 30 of the POCSO Act.
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22. Therefore, in the absence of any rebuttable evidence placed on record by the accused, the conviction of the appellant needs to be maintained and sought for dismissal of the appeal in toto.
23. Having heard the parties in detail, this Court perused the material on record meticulously.
24. On such perusal of the material on record, the following points would arise for consideration:
1) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the aforesaid offences?
2) Whether the appellant makes out a case that the impugned judgment of conviction and order of sentence is suffering from legal infirmity and perversity and thus calls for interference?
3) Whether the sentence needs modification?
4) What order?
Regarding point Nos.1 and 2:
25. In the case on hand, the fact of victim girl rescued from the rented house at Hailakandi, Assam State is established by placing necessary material evidence on record.
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NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 Admittedly, she was in the company of the appellant in the said place.
26. According to Ex.C.1, which is the first point of contact of the victim girl with the criminal Justice system after rescuing the victim girl, Investigating Agency produced the victim girl before the Magistrate at Hailakandi, Assam State, wherein victim girl has not stated any incriminatory materials with regard to the forcible or aggravated sexual assault committed by the appellant on her body.
27. However, after rescuing the victim girl, she was brought to Bengaluru and the statement of the victim girl under Section 164 Cr.P.C., again got recorded before the Magistrate at Bengaluru. In that statement, victim girl has stated about the forcible physical relationship of appellant had with her. However, the medical evidence does not corroborate the oral testimony of the victim girl.
28. By following the principles of law enunciated by the Hon'ble Apex Court in various judicial pronouncements that in a matter of this nature, the conviction of the appellant for the sexual offences though permissible solely on the oral testimony of the victim, legal principles would also caution the Trial Court
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NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 that if the oral testimony in a matter of this nature is shaky or in the nature of not inspiring total confidence in the Trial Court, as a rule of prudence, the Courts are required to look for corroboration.
29. Keeping in background the above principles, when the material evidence on record is appreciated, the charge sheet material itself show that there are two statements of victim girl recorded under Section 164 Cr.P.C., which are diametrically opposite in the contents.
30. Likewise, on perusal of Ex.P.16, it is noticed that when the statement of the victim girl is recorded by the Investigating Officer, she has stated that the accused was staring at her for a sufficient period of time and he used to follow her in the bus.
31. It is also stated by her that she initially did not agree for the love affair and then he cajoled her that he would marry her and thereafter they went in a BMTC bus to railway station.
32. Before the Investigating Officer, who is none other than the lady Inspector, even after coming to Bengaluru she has stated that accused did not commit any forcible sexual
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NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 intercourse with her. Therefore, the oral testimony of the victim girl suffers from contradictions to her previous statement.
33. Before the Investigation Officer and before the Magistrate at Hailakandi, Assam State, there is a clear mention by the victim girl that accused did not have any physical relationship much less forcible penetrative sexual assault on her.
34. But, before the Magistrate at Bengaluru when her statement was recorded for the second time under Section 164 Cr.P.C., and while deposing before Special Court she has stated about the physical relationship of the accused with her.
35. When at the first instance the victim girl has not stated about the physical relationship as per Ex.C.1, subsequent contradictory statement would raise sufficient doubt about the veracity of the statement of the victim girl.
36. Moreover, non showing any resistance when accompanying with the appellant from Thalaghattapura to railway station, that too in a BMTC bus sitting next to the appellant and thereafter without there being any resistance whatsoever she travelled with appellant from Bengaluru to
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NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 Hailakandi, Assam State, would only establish that victim had voluntary proceeded along with the appellant from her place of residence to the place where she was rescued.
37. In this regard this Court gainfully places the reliance on the judgment of Hon'ble Apex Court in the case of S.Varadarajan vs. State of Madras, reported in 1964 SCC OnLine SC 36, wherein at paragraphs 9 and 10 it has been held as under:
"9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
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10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
38. To complete the offence of kidnap, the prosecution has to establish that there was a forcible abduction of the minor from the custody of their parents or the legal guardian. In the case on hand, the victim on her volition, eloped with the accused. As such, there cannot be any conviction for the offence of kidnap. Therefore, as is rightly contended by the counsel for appellant, conviction could not be sustained insofar as the offence under Section 366 IPC.
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39. Taking note of the fact that the medical evidence would not corroborate the oral testimony of the victim girl in establishing the penetrative sexual assault, fact remains that to the extent that the testimony of victim girl should be considered, especially in the absence of rebuttable evidence placed on record by the accused would only go to show that the accused has committed an offence punishable under Section 8 of the POCSO Act instead of Sections 4 and 6 of the POCSO Act.
40. Fact remains that the appellant having not denied the company of the victim girl till she was rescued by the Investigating Officer, the presumption as is found from the statute would come into picture. Therefore, the conviction of the appellant for the offences punishable under Sections 4 and 6 of the POCSO Act need to be reduced to Section 8 of the POCSO Act and so also offence under Section 376 needs to be reduced to Section 376 r/w Section 511 IPC.
Accordingly, point Nos.1 and 2 are answered partly in the Affirmative.
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NC: 2025:KHC:5915 CRL.A No. 2056 of 2022 Regarding point No.3:
41. In view of the finding of this Court on point Nos.1 and 2 as above, especially acquitting the appellant for the offence under Section 366 and Sections 4 and 6 of POCSO Act and scaling down the offence to under Section 8 of the POCSO Act and 376 r/w Section 511 of the IPC, the sentence ordered by the learned Trial Judge in the impugned judgment needs a relook.
42. Accordingly, taking note of the fact that the appellant is in custody on and from 10.10.2018, the custody period already undergone by the appellant if treated as period of imprisonment for the aforesaid modified offences, ends of justice would be met, more so, taking note of the financial conditions of the appellant as well.
Accordingly, point No.3 is answered partly in the Affirmative.
Regarding point No.4:
43. In view of finding of this Court on point Nos.1 to 3, following order is passed:
ORDER
(i) Criminal appeal is allowed in part.
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(ii) Impugned judgment of conviction of the appellant for the offences punishable under Section 366, 376 (3), 506 Indian Penal Code and Section 5 (L) read with Section 6 of Prevention of Children from Sexual Offences Act is hereby set-aside. Instead appellant is convicted for the offence punishable under Section 376 r/w Section 511 Indian Penal Code and offence under Section 8 of Prevention of Children from Sexual Offences Act.
(iii) Consequently, custody period of the appellant on and from 10.10.2018 till date is to be treated as period of imprisonment for the aforesaid offences.
(iv) Operative portion of the judgment of this Court shall be communicated to the jail authorities, Central Prison, Parappana Agrahara, Bengaluru, by the Registrar (Judicial) through Fax and e- mail.
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(v) Jail Authorities are further hereby directed to release the appellant from the prison, if not required in any other case.
Sd/-
(V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 40