Karnataka High Court
Mr Mahalesh G Goudar, vs The State Of Karnataka, on 13 August, 2018
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO.100189/2016
BETWEEN
MR MAHALESH G. GOUDAR,
AGED ABOUT 66 YEARS,
SON OF MR. GURUSHANTAPPA GOUDAR,
R/O: KUTARANATTI, TAL: SAUNDATTI,
DIST: BELAGAVI.
... APPELLANT
(BY SRI.P.V.GUNJAL, ADV.)
AND
THE STATE OF KARNATAKA,
BY MURGOD POLICE, TAL: SAUNDATTI,
DIST: BELAGAVI. BY THE PROSECUTOR,
HIGH COURT, DHARWAD BENCH.
... RESPONDENT
(BY SRI.PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2)OF CR.P.C., SEEKING TO SET ASIDE THE SENTENCE
AWARDED TO THE ACCUSED/APPELLANT FOR OFFENCES
UNDER SECTIONS 3(A) AND 4 OF POCSO ACT, 2012 AND
UNDER SECTION 504 OF THE IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appeal is directed against the judgment of conviction and order of sentence passed by the 3rd Additional District and Sessions Judge, Belagavi in S.C. No.206/2014 dated 15.03.2016 held conviction against the accused under Sections 3(a) and 4 of the Protection Of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act, 2012'), besides Section 504 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and the accused sentenced to undergo imprisonment for a period of 7 years and to pay fine of Rs.15,000/- for the offence punishable under Section 4 of the POCSO Act, 2012, in default to pay fine amount, he shall further undergo simple imprisonment for a period of six months. The accused shall undergo imprisonment for a period of six months and sentenced to pay fine of Rs.1,000/- and in default to pay fine amount, he shall undergo simple imprisonment for a period of one month for the offence punishable under Section 504 of IPC.
2. Factual matrix of the prosecution case are as under:
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The accused was residing in a rented house of one Bhimanagouda Siddanagouda Patil, house No.24, situated in Goudara Oni of Kutaranatti Village. On 31.05.2014 at around 10:00 a.m., the accused alleged to have had sexual assault on the victim, being a daughter of the complainant aged 6 years, as the accused had secured the victim by inducing her that he will give money and got the victim to his house and made her to fell on the ground in his rented house and lifted her clothes and removed her innerwear and had forcible sexual assault on the victim. On hearing the screaming sound of the victim, the complainant, who is the mother of the victim rushed to the house of the accused and had pushed the door and on seeing the act of the accused, she started to shout on the accused and in turn the accused abused the complainant and also extended life threat on her as, if the incident is said to have disclosed, she would face with dire consequences. On the filing of the complaint by the complainant, a case in Crime No.195/2014 came to be registered against the accused. Thereafter, Investigating Officer took up the investigation and laid the charge sheet :4: against the accused. During the investigation, the Investigating Officer conducted the spot mahazar and the victim was produced before the Doctor for medical examination and the clothes worn by the victim had been seized and the same had sent for examination. Charge sheet laid against the accused for the offences punishable under Sections 376, 504, 506 of IPC, besides Sections 3(a) and 4 of the POCSO Act, 2012.
3. Subsequent to laying the charge sheet against the accused before the Special Court, the charge has been famed, as wherein accused did not pleaded guilty, but claims to be tried. The prosecution, in all examined P.Ws.1 to 10, got marked the documents at Exs.P-1 to P-10 and the material objects as M.Os.1 to 7.
4. Subsequent to recording the incriminating statements appeared against the accused, the accused denied the truth of the evidence of the prosecution witnesses. Thereafter, hearing the arguments advanced by the prosecution and also the defence counsel, the Trial Court held conviction for the offences punishable under :5: Section 4 of the POCSO Act, 2012 and Section 504 of IPC. It is this judgment which is challenged by the appellant/accused in this appeal.
5. Heard the learned counsel for the appellant and the learned HCGP for the respondent State.
6. Learned counsel for the appellant taken me through the materials on record stating that P.W.1 is the complainant and she is the mother of the victim. She had filed a complaint as per Ex.P-1, wherein she has stated in her evidence that on 31.05.2014 at about 10:00 a.m., the accused had committed sexual assault on her daughter, who is aged 6 years. As this accused had induced her to provide certain sum and secured the victim into his house and alleged to have had sexual assault on the victim by lifting her dress and removing her innerwear. P.W.8 being the victim was subjected to examination by the prosecution to prove the guilt of the accused. P.W.5 being the Doctor examined the accused and issued the certificate as per Ex.P-5. P.W.6 being the Doctor examined the victim and issued medical certificate as per Ex.P-6, whereas in :6: the report, the Doctor on examination of the victim found that the minimal swelling and tenderness to labia majora and tenderness to labia minora. Based upon the report, the Doctor given an opinion that because of such above injuries, attempt to penetrate cannot be ruled out, whereas, the Trial Court has given credibility to the evidence of P.Ws.1 and 8 and also to the evidence of P.W.6 coupled with the evidence of P.W.10 being an Investigating Officer who laid the charge sheet against the accused. Even P.Ws.4 and 7 said to be panch witnesses to Exs.P-3 and P-4, seizure mahazar relating to the clothes of the accused as well as the victim. It is further submitted that the Trial Court has not appreciated the evidence on record on a proper perspective, relating to the offence under Section 4 of the POCSO Act, 2012 and held conviction against the accused based upon the evidence of P.Ws.1, 8 and 6 and the Trial Court had acquitted the accused for the offences punishable under Sections 376 and 506 of IPC.
7. It is further submitted that the documentary evidence placed by the prosecution relating to the :7: evidence relating to the offence under Section 4 of the POCSO Act, is not properly appreciated by the Trial Court. Therefore, in this appeal, it requires to be intervened by re-appreciating the entire evidence on record, as no semen were traced on any of the items said to be secured by the Investigating Officer during the course of investigation on having sent for examination which indicates only an attempt to penetrate cannot be ruled out. Therefore, the learned counsel for the appellant submitted that at the most sexual assault attracts an offence under Section 7 of the POCSO Act and not an offence under Section 3(a) of the POCSO Act. It is further submitted that the ingredient has not been proved by the prosecution even though examination of P.Ws.1 and 8, as they are the vital witness for the prosecution relating to the accusation made at Ex.P-1, the complaint. The Court below has not properly appreciated the evidence on a proper perspective, as there are discrepancies arise in the evidence of these material witnesses in order to prove the guilt of the accused that the accused had committed sexual assault on the victim. No evidence has been forthcoming by the prosecution for :8: the offence punishable under Section 376 of IPC and so also Section 506 of IPC. Though said major offence has not been proved by the prosecution and rightly the Trial Court come to the conclusion that the prosecution did not place the cogent and acceptable evidence for the aforesaid offence. Despite of an evidence placed by the prosecution in order to prove the guilt of the accused, the Trial Court has erroneously come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence under Sections 3(a) and 7 of the POCSO Act, 2012.
8. It is further submitted that the accused is in judicial custody for a period of 4 years 74 days since from the date of his arrest and during the course of trial and even after held conviction against the accused, this is required to be considered in this appeal apart from the discrepancies as well as in consistencies which is found in the evidence of P.W.1, the author of the complaint, Ex.P-1.
9. It is further submitted that P.W.8, the victim is aged 6 years. P.W.2 said to be a prime witness for the :9: prosecution. Whereas, P.W.1 on hearing the screaming sound of her daughter, she rushed to the scene of crime and she saw the accused laying on the victim. But semen were not found on the clothes of the victim and even on the clothes of the accused which were seized as per Exs.P- 3 and P-4 which were subjected for examination. The said mahazar have been conducted by P.W.10 being the Investigating Officer. This aspect would also be required to have appreciated on a proper perspective by the Trial Court. Despite appreciating the entire evidence, the Trial Court has erroneously come to the conclusion that the prosecution has proved the guilt of the accused under Section 3(a) and 4 of the POCSO Act, but charge has been framed against the accused for the offence punishable under Section 376 of IPC and Sections 3(a) and 4 of the POCSO Act. But the Trial Court acquitted the accused for the major offence under Section 376 of IPC based upon the evidence of P.Ws.1 and 8. These evidences are the prime evidences for the prosecution in order to prove the guilt of the accused. Therefore, in this appeal it requires to be re-appreciated the entire evidence on record, as the : 10 : Trial Court did not appreciate the evidence properly in a proper perspective and even not appreciated the evidence of P.W.6, being the Doctor who examined the victim and issued medical certificate as per Ex.P-6. Where Ex.P-6 indicated that there is no signs of any sexual assault.
10. It is further submitted that the accused is in judicial custody since from the date of his arrest for a period of 4 years 74 days and on all these grounds, the learned counsel for the appellant sought to allow the appeal by setting aside the judgment of conviction and order of sentence passed by the Trial Court in S.C. No.206/2014.
11. On controvert to the arguments advanced by the learned counsel for the appellant relating to the evidence of P.Ws.1 and 8, as wherein the prosecution is based upon these material witnesses to prove the guilt of the accused. The learned HCGP has taken me through the evidence of P.W.1 who is the author of the complaint, Ex.P-1 has taken the evidence which is conformity with the evidence of P.W.8, as she being the victim aged 6 years. : 11 : On the day of the incident, the accused had induced the victim girl saying that he would provide the money and taken her to his rented house and had sexual assault on the victim by lifting her dress and her innerwear. On hearing the screaming sound of the victim, P.W1 had rushed to the house of the accused and had pushed the door. At that time, the accused was laying on the victim and the accused had extended life threat to P.W.1 saying if she would disclose the incident before any person, she would face with dire consequences. Mere because the Court below held acquittal of the offence under Section 376 of IPC, it cannot be intervened to the conviction held against the accused under Section 4 of the POCSO Act, 2012 and so also Section 504 of IPC. Section 3(a) of POCSO Act, 2012 reveals that penetrative sexual assault on the victim, same has been established by the prosecution for having examined P.W.1 and P.W.8, the victim. The evidence of P.W.8, the victim, it finds credibility with the evidence of P.W.6, the Doctor who examined the victim and issued medical certificate as per Ex.P-6. Wherein the Doctor opined that attempt to : 12 : penetrate cannot be ruled out, as there is no signs of recent sexual intercourse. Mere because of this opinion expressed by the Doctor on examination of the victim and having issued the report at Ex.P-6, it cannot be said that intervention is required in the judgment of conviction and order of sentence by the Trial Court and so also P.W.10 said to be the Investigating Officer laid the charge sheet against the accused by drawing mahazar as per Exs.P-3 and P-4 for having seized clothes of accused as well as the victim. The Trial Court has appreciated the evidence on record on a proper perspective and rightly come to the conclusion that the prosecution has proved the guilt of the accused. Therefore, the learned HCGP for the State seeking dismissal of the appeal as it is being devoid of merit.
12. Having regard to the strenuous contentions taken by the learned counsel for the appellant are concerned, it is relevant to refer to Section 3(a) and so also Section 7 of the POCSO Act, 2012. These two sections are relating to appreciate the evidence of P.W.1 who is the mother of the victim as well as the author of the complaint : 13 : at Ex.P-1. P.W.8 being the victim who has been secured by the accused by inducing her to provide certain amount and had taken the victim girl to his rented house on 31.05.2014 at about 10:00 a.m. and made the victim to lay on the ground and lifted her dress and had removed the innerwear of the victim and had sexual assault on her. While the victim had screamed and on hearing the screaming sound of the victim, P.W.1, the mother of the victim had rushed to the scene of crime and had pushed the door, as where the accused was laying on the victim and had sexual assault. As the incident was seen by P.W.1, the accused had extended life threat to her saying that if she disclose the said incident to anybody, then she would have face with the dire consequences.
13. Whereas, the Trial Court had appreciated the evidence of the prosecution and held acquittal of the accused under Section 376 of IPC, as wherein the charge was framed against the accused. Therefore, the ingredients of Section 3(a) of the POCSO Act, 2012 as well as the punishment clause under Section 4 of the POCSO Act, 2012, it is in terms and based upon the evidence : 14 : placed by the prosecution in order to prove the guilt of the accused. But the prosecution has not produced the cogent, consistent and corroborative evidence relating to the offence under Section 376 of IPC, but the prosecution has been proved the guilt of the accused under Section 3(a) of the POCSO Act, 2012 and the charge has been framed by the Trial Court against the accused under Section 376 of IPC and Sections 3(a), 4 of the POCSO Act and punishment held against the accused under Section 4 of the POCSO Act and so also under Section 504 of IPC. The same has been challenged in this appeal by urging various other grounds.
14. The entire case of the prosecution revealed around the evidence of P.W.1, the mother of the victim as well as author of the complaint Ex.P-1 so also evidence of P.W.8, being the victim. Apart from that, P.W.6, the Doctor who had examined the victim and issued certificate as per Ex.P-6. Whereas, the Doctor opined in his report that on examination of the victim, it is found that minimal swelling and tenderness to labia majora and tenderness to labia minora, because of such above injuries, attempt to penetrate cannot be ruled out. However, there are no : 15 : other signs of recent sexual assault. But the Doctor has not specifically stated in his opinion report that attempt to penetrate sexual assault on the victim cannot be ruled out. Therefore, Sections 3(a) and 4 of the POCSO Act, 2012 coupled with Section 7 of the POCSO Act, 2012, it is referred for the purpose to appreciate the evidence of P.Ws.1 and 8, as wherein prosecution has given much credibility in these evidences to secure the conviction under Section 4 of the POCSO Act, 2012 as well as Section 504 of IPC.
15. When the Doctor opined specifically in his medical certificate, as per Ex.P-6 that attempt to penetrate cannot be ruled out means there was an attempt made by the accused to penetrate assault on the victim. But in Section 3(a) of the POCSO Act, 2012, punishment clause is under Section 4 of the POCSO Act, but the ingredients relating to the offence under Section 3(a) of the POCSO Act, 2012 is concerned, the prosecution has not been putforth the cogent, corroborative and consistent evidence to probabilize, as that the accused had penetrative sexual assault on the victim. Therefore, it may come under the : 16 : provision of Section 7 of the POCSO Act, 2012, as the punishment for the aforesaid offence under Section 8 of the POCSO Act is not less than 3 years but up to 5 years. Whereas, at a cursory glance of the entire evidence of P.W.1 and also accusations made against the accused and also evidence of P.W.8 and the Doctor P.W.6, the evidence of prosecution is placed to prove the guilt of the accused, it has to be fit into Section 7 of the POCSO Act, instead of Section 3(a) of the POCSO Act for having held punishment under Section 4 of the POCSO Act. Therefore, the sentence held by the Trial Court against the accused under Section 4 of the POCSO Act, it is requires to be intervened in terms of the aforesaid reasons as well as tenor of Section 3(a) as well as 4 of the POCSO Act relating to the guilt of the accused. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the 3rd Additional District and Sessions Judge, Belagavi in S.C. No.206/2014, dated 15.03.2016 against the appellant/accused - Mahalesh G. Goudar for the offences : 17 : punishable under Sections 3(a) and 4 of POCSO Act, 2012 is hereby set aside and modified the sentence held against the appellant/accused as Section 8 of POCSO Act, 2012 instead of Section 4 of POCSO Act, as the prosecution has proved the guilt of the accused for the offence punishable under Section 7 of the POCSO Act, that the appellant/accused has undergone sentence for a period of 4 years 74 days, which shall be termed as service of sentence. Accordingly, the sentence passed by the Court below is modified and sentence to pay the fine amount held against the appellant/accused shall be maintained, including the offence punishable under Section 504 of IPC.
If the appellant/accused has not deposited the fine amount, he shall deposit the same before the Trial Court in S.C. No.206/2014 within a period of two weeks from the date of receipt of a copy of this judgment. After depositing the fine amount, the same shall be paid to P.W.8, the victim, on proper identification. Accordingly, the concerned Jail Authorities are hereby directed that the appellant/accused shall be set at liberty forthwith, if he is not required in any other case.
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The Registry shall forward a copy of this order to the concerned Jail Authorities, as where the appellant/accused is lodging, for compliance.
Sd/-
JUDGE Rsh