Karnataka High Court
Shivappa vs State Of Karnataka on 20 December, 2024
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NC: 2024:KHC-K:10005
CRL.A No. 200068 of 2021
C/W CRL.A No. 200072 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 200068 OF 2021
C/W
CRIMINAL APPEAL NO. 200072 OF 2021
IN CRIMINAL APPEAL NO.200068 OF 2021
BETWEEN:
1. SOMAPPA
S/O KALLOLEPPA CHURI
AGED ABOUT 44 YEARS
OCC:JOURNALIST
R/O ANAGAWADI
TALUK:BILAGI, BAGALKOT
PIN CODE:587 116
2. PARASHURAM
S/O NAGAPPA MAREGUDDI
Digitally signed AGED ABOUT 45 YEARS
by SHAKAMBARI
Location: HIGH
OCC:EDITOR
COURT OF R/O JAMAKHANDI
KARNATAKA DISTRICT:BAGALKOT
PIN:587 301
...APPELLANTS
(BY SRI. M. SUDARSHAN, ADVOCATE - [VC])
AND:
STATE OF KARNATAKA
REPRESENTED BY THROUGH
STATION HOUSE OFFICER
ADARSH NAGAR POLICE
VIJAYAPURA
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NC: 2024:KHC-K:10005
CRL.A No. 200068 of 2021
C/W CRL.A No. 200072 of 2021
BY STATE PUBLIC PROSECUTOR
PIN:586 103
NOW REPRESENTED BY
THROUGH ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI-585 103
...RESPONDENT
(BY SMT. ANITHA REDDY, HCGP - [VC]
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
19.04.2021 PASSED BY THE ADDITIONAL SESSIONS JUDGE
AND FTSC-I (POCSO) AT VIJAYAPURA IN SPL.CASE (POCSO)
NO.38/2018 CONVICTING THE APPELLANT/ACCUSED NO.1 AND
2 FOR THE OFFENCES P/U/S 228(A) OF IPC, AND U/SEC 23(1),
23(2) AND 23(3) OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCE ACT AND ETC.
IN CRIMINAL APPEAL NO.200072 OF 2021
BETWEEN:
SHIVAPPA
S/O MANTRAPPA RAJANAL
AGED ABOUT 75 YEARS
OCC:PRINTING PRESS OWNER
R/O BAGALKOT
TALUK & DISTRICT:BAGALKOT
...APPELLANT
(BY SRI. M. SUDARSHAN, ADVOCATE - [VC])
AND:
STATE OF KARNATAKA
REPRESENTED BY THROUGH
STATION HOUSE OFFICER
ADARSH NAGAR POLICE
VIJAYAPURA
BY ADDL. STATE PUBLIC PROSECUTOR
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NC: 2024:KHC-K:10005
CRL.A No. 200068 of 2021
C/W CRL.A No. 200072 of 2021
HIGH COURT OF KARNATAKA
KALABURAGI-585 102
...RESPONDENT
(BY SMT. ANITHA REDDY, HCGP - [VC]
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE DATED 19.04.2021 PASSED BY THE ADDITIONAL
SESSIONS JUDGE AND FTSC-I (POCSO) AT VIJAYAPURA IN
SPL.CASE (POCSO) NO.38/2018 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES P/U/S 228(A) OF
IPC, 23(1), 23(2) AND 23(3) OF PROTECTION OF CHILDREN
FROM SEXUAL OFFENCE ACT AND ETC.
THESE CRIMINAL APPEALS HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) These two appeals arise out of a single judgment of conviction and sentence dated 19th April 2021 passed in Spl.Case (POCSO) No.38/2018 by the Addl.Sessions Judge and FTSC-I (POCSO), Vijayapura.
2. The appellants in Crl.Appeal No.200068/21 were accused nos. 1 and 2 and appellant in Crl.Appeal -4- NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 No.200072/2021 is accused no.3 in the aforesaid Spl.Case. As both these appeals arise out of a single judgment, with the consent of both the side, these appeals are heard together and hence, common judgment is passed in these appeals.
3. Parties to these appeals are referred to as per their rank before the trial Court.
4. The brief and relevant facts leading upto these appeals are that; One Sri B.M.Patil, the then PSI (Law and Order), Adarsha Nagara Police Station, Vijayapura submitted a complaint before the SHO of Adarsha Nagara Police Station of Vijayapura on 10.01.2018 at 7.00 p.m. stating, at the relevant time, he was working as PSI (Law and Order). A crime was registered in Adarsha Nagara Police Station on 19.12.2017 with regard to sexual assault on a victim girl and also her murder by the miscreants in Crime No.151/2017. In respect of the said crime, in a newspaper called `Jananayaka' a Kannada newspaper -5- NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 printed and published at Vijayapura found with the heading at page No.10 as under:
"¸ÁQë £Á±ÀPÁÌVAiÉÄà zÁ£ÀªÀÄä¼À ªÀÄÈvÀzÉúÀªÀ£ÀÄß ¸ÀÄlÄÖ ºÁQzÀgÉ? ºÁQ¹zÀgÉÃ?"
5. On noticing the said publication, it was enquired by him and noticed that one Parashuram Mareguddi i.e. accused no.2 is the main editor and accused no.1 is the printer of the said `Jananayaka' a Kannada newspaper and it was accused no.3 is the publisher with a licence obtained by accused nos. 1 and 2 at the address so stated in the complaint. It is alleged that the said news was printed in the said `Jananayaka' newspaper a fortnightly periodical commencing from 1.1.2018 and 15.1.2018 and thereby the accused herein have committed the offence under Section 228-A of IPC and Section 23 of POCSO Act, 2012. With these allegations a complaint was lodged which was registered in Crime No.4/2018 by the SHO of Adarsha Nagara Police Station and the criminal law was set in motion. The investigation officer, on completion of investigation filed charge sheet against accused persons -6- NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 for the offences under Section 228 of IPC and Section 23(1)(2) and (3) of POCSO Act. During the crime stage itself, accused nos.1 to 3 were enlarged on bail on their surrendering before the Court.
6. The learned Special Court, on hearing both the side framed the charges against accused for the aforesaid offences for which all the accused pleaded not guilty and claimed to be tried.
7. To prove the charges against the accused nos. 1 to 3, prosecution examined 11 witnesses from PWs 1 to 11 and got marked Ex.P1 to P12 and closed prosecution evidence. Thereafter, accused nos. 1 to 3 were questioned under Section 313 of Cr.PC. so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence.
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8. The learned Special Court, on hearing the arguments and evaluation of the evidence lead by the prosecution found accused nos. 1 to 3 guilty of committing the aforesaid offences and sentenced them as under:
"I. The accused No 1, accused No.2 accused No.3 are hereby sentenced to undergo Simple Imprisonment for a period of Six months, and also are liable to pay fine of sum Rs.30,000/= [Indian National Rupees of Thirty Thousand Only] jointly and in the event of failure to pay the fine amount the accused 1 to 3 shall undergo Simple Imprisonment additional period 45 days on of this Count of offence under Section 228-A of Indian Penal Code.
II. The accused No 1, accused No.2 accused No.3 are hereby sentenced to undergo Simple Imprisonment for a period of Six Months imprisonment with fine of sum of Rs.30,000/= [Indian National Rupees of Thirty Thousand Only] and in the event of failure to pay the fine amount the accused 1 to 3 shall undergo Simple Imprisonment of additional period of 45 days on this Count of offence under Section 23[1], Section 23[2] Protection of Children from Sexual Offences Act.
III. The Sentence awarded for each count of imprisonment shall run concurrently."
9. This is how accused nos. 1 and 2 have challenged their conviction and sentence passed by the -8- NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 trial Court by preferring Crl.Appeal No.200068/2021 and Accused no.3 by filing Crl.Appeal No.200072/2021.
10. Heard the arguments of learned counsel for the appellants Sri Sudarshan and learned High Court Government Pleader Smt.Anitha Reddy. Submission of the Counsel for the appellants:
11. It is submitted by the learned counsel for the appellants that most of the witnesses in this case have been turned hostile. The witnesses who have supported the case of the prosecution are the official witnesses. He would submit that, based upon the evidence of the official witnesses who are very much interested to seek conviction, such evidence of the official witnesses cannot be accepted. He would further submit that appellants- accused are not responsible in the commission of the crime. He would submit that, even the evidence of the official witnesses is full of contradictions and omissions therefore, do not inspire any confidence that it was -9- NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 accused nos. 1 and 2 who got printed, edited and published by accused no.3 of the said news naming the victim in the manner stated in the complaint. It is his submission that in view of all these factual features, none of the ingredients of offence under Section 228-A of IPC or Section 23 of POCSO Act are satisfied by the prosecution by leading cogent evidence. Therefore, he prays to allow both the appeals and set aside the impugned judgment of conviction and order of sentence.
Submission of the HCGP for the State:
12. As against this submission, the learned High Court Government Pleader Smt. Anitha Reddy submits that there is no rule as such to disbelieve the evidence of the official witnesses. Though the Panchas have been turned hostile but, the fact remains that, the said publication was made by accused no.3 being the Publisher of `Jananayaka' a Kannada newspaper fortnightly, edited by accused no.2 and printed by accused no.1. It was accused no.3 who permitted to print and publish. The
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 learned High Court Government Pleader Smt.Anitha Reddy would further submit that the learned trial Court has evaluated the evidence and has rightly concluded that these accused are guilty of committing such offences. She supported the reasons and findings of the learned trial Court. She would further submit that, in view of the sound findings given by the trial Court, the impugned judgment does not require any interference in these appeals. Therefore, she prays to dismiss both the appeals.
13. Having heard the arguments of both the side and on evaluation of the evidence placed on record by both the side, the only point that would arise for my consideration is, "whether the judgment of conviction and order of sentence impugned in these appeals suffer from infirmity and illegality and hence require any interference by this Court?"
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 Analysis of Evidence:
14. My answer to the above point is in the negative for the following reasons:
Before adverting to the other aspects of the case, it is just and proper to discuss the admitted facts. It is not in dispute that accused no.2 is the main editor of `Jananayaka' a Kannada newspaper fortnightly published and owned by him at Anagawadi - 587 116, Tq.Bilagi, Dist.Bagalkot printed at Udaya Printing Press, Old Vegetable Market, Bagalkot, Dist.Bagalkot (Karnataka).
Accused No.1 is the printer of the said newspaper. The said paper is printed in the property owned by accused no.3. It is also not in dispute that before Adarsha Nagara Police Station, a crime was registered in Crime No.151/2017 alleging, that on 19.12.2017, there was a sexual assault on victim minor girl and she was murdered and to that effect, the aforesaid crime was registered. The said `Jananayaka' a newspaper's editor, printer and publisher had published the photo as well as the news regarding the sexual assault on the victim minor girl which
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 is against the provisions of Section 228-A of IPC and Section 23 of POCSO Act, 2012. Thus, publication of the said news in the said fortnightly newspaper though denied by the accused persons but, in the course of evidence, there is an admission that, to the said publication, these accused nos. 1 to 3 are responsible. These admitted facts need not be proved.
15. It is the specific allegation of the prosecution that, the then PSI (Law and Order), Adarsha Nagara Police Station examined as PW.10 before the trial Court noticed such publication and immediately he lodged a complaint on 10.01.2018. The said fortnightly was published for fortnight commencing from 1.1.2018 to 15.1.2018. Based upon the complaint Ex.P11, the Crime was registered. During the course of investigation, the so called publication was seized by the Police at the time of conducting the panchanama. However, PW.1 Thippanna Chalawadi and PW.2 Hanamanth Bennur, the panchas to Ex.P1 having been turned hostile though they were cross-
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 examined but, they deposed ignorance about the contents of panchanama, therefore, their evidence would not help the case of the prosecution.
16. Likewise, PW.3 Mallappa Rangappa Rajanal who was examined as PW.3. According to him, he knows Uday Printing Press and owner of the said printing press is one Shivappa Basappa Rajanal i.e. accused no.3. But, he deposed ignorance about seeing of accused nos.1 to 3 and according to him, Police have not recorded his statement. He has been declared as hostile witness and cross- examined by the prosecution. But, nothing worth is elicited.
17. PW.4 Manjunath Rajanal was examined by the prosecution to prove that he was working at Udaya Printing Press. But, he has denied the same. He too has been turned hostile, therefore, evidence of PW.3 and 4 would not help the case of the prosecution.
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021
18. PW.5 Mantrappa Rajanal is the son of accused no.3 and according to him, he does not know accused nos. 1 and 2 and states that, he has not worked in his printing press but, the said Udaya Printing Press prints everyday's newspaper, wedding cards and other materials. According to him, said `Jananayaka' a newspaper is not printed in Udaya Printing Press. As he has denied the very printing of `Jananayaka' newspaper, he has been declared as hostile and cross-examined but nothing worth elicited from his mouth so as to help the case of the prosecution. He being a son of accused no.3, such evidence is expected from this witness to save his father.
19. PW.6 - Prashanth Shankareppa Chanagonda was the then Assistant Commissioner of Jamkhandi. It is his evidence that within his official jurisdiction, he used to inspect and enquire with regard to the printing of daily newspapers, weekly journals, weekly papers and other periodicals and also used to ascertain whether such newspapers and periodicals are registered or not.
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 According to him, the information was sought by the Adarshanagara Police Station on 24.09.2018 with request to provide information about registration of `Jananayaka' Newspaper before the appropriate authority. Therefore, he issued Ex.P5 stating that the said newspaper is a registered newspaper under license No.R.N.I./KARKAN/43901/2012.BKT/LRNP/07/16-18. This Ex.P5 shows about license granted to the Editor, Printer and Publisher of the said `Jananayaka' Kannada Fortnighty to publish said newspaper from the Office so stated in Ex.P5. He identifies Ex.P5 as well as his letter as per Ex.P6 addressed to the P.S.I, Adarshanagara Police Station under his signature. According to him, the said Newspaper as per the records belongs to Accused No.3 and Accused No.1 is the owner, Accused No.3 is the Publisher. He has been cross-examined by the counsel for the accused, wherein it is suggested to him that whether the said `Jananayaka' Kannada Fortnighty being published for a fortnight commencing from 01.01.2018 to 15.01.2018 is received by his Office. He has stated that
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 he has not received the same but, specifically states that based upon the register maintained, he submitted report.
20. From the evidence of PW.6, it is very much clear that the said `Jananayaka' Fortnighty Kannada newspaper is printed, published at the address so narrated in Ex.P5. While marking the said Ex.P5, defence has not raised any objections.
21. PW.7 - Chidhanandha Ramappa Sagar, the then A.S.I. of Adarshanagara Police Station, has come before the trial Court and deposed that as per the directions of his Superior Officer, he visited the Office of said `Jananayaka' Newspaper at Bagalkot on 14.01.2018 and in the presence of panchas he has prepared the panchanama as per Ex.P1. He has been thoroughly cross- examined by the defence counsel. But, throughout the cross-examination, he has maintained that it is he who had scribed Ex.P1 pertained to Cr.No.4/2018 of his Police Station in the presence of panchas and submitted a report to his superior Officer. To disbelieve his evidence, except
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 denial, nothing is suggested to this witness. Therefore, evidence of PW.7 can very well be accepted about preparation of Ex.P1, panchanama in the manner alleged by the execution. There is no rule as such to disbelieve the evidence of official witness who has prepared the panchanama and identified the same so also his signature on the said panchanama. The evidence of this witness being a Police Officer is found reliable, trustworthy.
22. PW.8 - Afsarpeer Inamdar, at the relevant time was Head Constable of Adarshanaraga Police Station and he was directed to carry a letter to the Tahsildar on 24.09.2018 so as to get information about licence issued to the `Jananayaka' Kannada fortnightly Newspaper. Accordingly, he has carried the said letter and produced acknowledgement before the P.S.I. This evidence is not denied by the defence.
23. PW.9-Rajesh Seethappa Lamani was PSI of Adarshanagara Police Station and the Investigation Officer. He secured the reported as per Ex.P5 noted above by
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 deputing his Head Constable so also conducted the investigation and filed the charge sheet against the accused persons. Though he has been cross-examined by the defence intensively, he is consistent that violating the provisions of Section 228A of Indian Penal Code and Section 23 of POCSO Act, there was a publication of name and photo of victim girl, who was sexually assaulted and murdered because of which, a crime in Cr.No.151/2017 was registered. He denied all the suggestions directed to him.
24. PW.10 - Basavaraja Malakanagowda Patil is the complainant and filed a complaint as per Ex.P11. Much was argued by the counsel for the appellants that it is PW.10 was the complainant and also conducted investigation which is not permissible. But, the learned trial Court has discussed elaborately the competency of PW.10 in filing the complaint and conducting of investigation in part. Throughout the appeal memo, no grounds have been urged questioning the competency of
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 PW.10 in filing the complaint and conducting the part of investigation. That means, the said findings of the trial Court have not been challenged and thereby such findings have attained finality.
25. PW.10 is thoroughly cross-examined by the defence but he is consistent throughout his evidence about the crime committed by the accused persons in the manner alleged in the complaint. Mere denial in the cross- examination is not sufficient. Therefore, evidence of PW.10 has to be accepted as credit worthy evidence.
26. PW.11 was the Head Constable of Adarshanagara Police Station at the relevant time and it was he who was deputed for nabbing accused but, could not trace them. Accordingly he submitted a report.
27. So far as documents are concerned, Ex.P1 is a Panchanama, wherein, from the evidence of A.S.I-PW.7, contents of the same are proved. Ex.P1 is accompanied with the sketch showing location of the said Udaya Printing
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 Press. The most important document is Ex.P10, the fortnightly Jananayaka Newspaper, wherein it is printed and published about the sexual assault on the minor girl and whose name is printed and her photograph is also printed on the Newspaper by accused No.1, edited by accused No.2 and published by accused No.3. This Ex.P10 if looked into, it do demonstrate that these accused persons are responsible for printing, editing and publishing the said fortnightly Newspaper.
28. Section 228A of the Indian Penal Code, specifically speaks that disclosure of identity of the victim of certain offences is an offence and liable for punishment. The said Section reads as under:
"
228A. Disclosure of identity of the victim of certain offences, etc.--(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an 2[offence under section 376, 3[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB] or section 376E] is alleged or found to have been committed (hereafter in this section referred to as the victim)
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication
(a) by or under the order in writing of the officer- in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim:
Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.
Explanation.--For the purposes of this sub-section, "recognised welfare institution or organisation"
means a social welfare institution or organisation recognised in this behalf by the Central or State Government.
(3) Whoever prints or publishes any matter in relation to any proceeding before a court with
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 respect to an offence referred to in sub-section (1) without the previous permission of such court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Explanation.--The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section."
29. As per this provision, the prosecution has to prove:
a) That the accused prints or publishes the name or any matter which may make known the identity of a person.
b) The person is one against whom an offence under any of the following Sections is alleged or found to have been committed -
(i) Section 376 or
(ii) 376A, 376B, 376C or 376D.
30. Thus, as per this Section, if any person makes a disclosure of identity of a victim of the said offences by way of printing or publishing the name of any matter which may make known the identity of any person whom
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 an offence under the aforesaid Sections is alleged or found to have been committed can be punished. This restriction does not relate to printing or publication of judgment by High Court or Hon'ble Apex Court. It is said that, but keeping in view of social object of preventing social victimization or ostracism of the victim of sexual offence for which this Section 228A has been enacted. Therefore, a direction is given to all the Courts in India by the Hon'ble Apex Court that at the time of conducting trial of such offences, the Courts are not expected to disclose the identity of the victim. Likewise, in this case, the victim was a minor girl who was sexually assaulted and murdered. Therefore, the criminal case was registered not only under the provisions of I.P.C. against the accused persons in the aforesaid crime but, also under the provisions of POCSO Act, 2012.
31. Section 23 of the POCSO Act, 2012 also speaks with regard to procedure for Media. For better appreciation, it is just and proper to incorporate the
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 provisions of Section 23 of POCSO Act, which reads as under:
"23. Procedure for media.--(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
(2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child:
Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
(3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.
(4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 but which may extend to one year or with fine or with both."
32. On scrupulous reading of the aforesaid provision, it is mandatory, that no person can print, publish electronically in any social media etc.,i.e. the name of the victim or even in a remote manner disclose any fact which can lead to the victim being identified and which makes her identity known to the public at large. Therefore, the object behind this legislation is to protect such victims from any hostile discrimination or harassment in future. In this regard, the Hon'ble Apex Court has laid down the law as well as issued the direction to all the Courts in India in a judgment reported in (2019) 2 SCC 703 in the case of NIPUN SAXENA AND ANOTHER vs. UNION OF INDIA AND OTHERS. In Paragraph Nos.9 to 12 of the said judgment, Hon'ble Apex Court has observed as under:
"9. Sub-section (1) of Section 228-A, provides that any person who makes known the name and identity of a person who is an alleged victim of an offence falling under Sections 376, 376-A, 376-AB,
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E commits a criminal offence and shall be punishable for a term which may extend to two years.
10. What is however, permitted under sub- section (2) of Section 228-A IPC is making known the identity of the victim by printing or publication under certain circumstances described therein. Any person, who publishes any matter in relation to the proceedings before a court with respect to such an offence, without the permission of the court, commits an offence. The Explanation however provides that printing or publication of the judgment of the High Courts or the Supreme Court will not amount to any offence within the meaning of IPC.
11. Neither IPC nor CrPC define the phrase "identity of any person". Section 228-A IPC clearly prohibits the printing or publishing "the name or any matter which may make known the identity of the person". It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase "matter which may make known the identity of the person"
does not solely mean that only the name of the victim should not be disclosed but it also means
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 that the identity of the victim should not be discernible from any matter published in the media. The intention of the law-makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.
12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. In this regard, we may make reference to some ways and means where the identity is disclosed without naming the victim. In one case, which made the headlines recently, though the name of the victim was not given, it was stated that she had topped the State Board Examination and the name of the State was given. It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village, etc. is clearly visible. This also amounts to disclosing the
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 identity of the victim. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large."
33. If the aforesaid principles are applied to the present facts of the case, it was accused No.1 who is a printer and accused No.2 is an editor and accused No.3 is a publisher in collusion with each other, Ex.P10 was published and the complainant noticed the violation of the aforesaid penal provisions and immediately lodged a complaint. The learned trial Court has come to the conclusion that these accused Nos.1 to 3 are responsible in commission of the crime. Though there is denial by the defence about printing, editing and publishing Ex.P10, but, on the face of it, on reading Ex.P10 and also the evidence spoken to by the witnesses do establishes that it is accused No.1 to 3 who are responsible for printing, editing and publishing Ex.P10. As it is a fortnightly newspaper, perhaps to get the attraction of the public at large in general and leaders in particular so as to have the more
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 sales of the newspaper, these accused nos. 1 to 3 must have ventured to publish such a news in their newspaper thereby, these accused Nos.1 to 3 have committed the offences under Section 228A of IPC so also under the provisions of Section 23 of the POCSO Act, 2012. When documentary evidence do establishes about the same, merely because of some of the witnesses have turned hostile, their hostility pales into significance.
34. Though it is argued by the counsel for the appellants that, except the evidence of the Official witnesses, there is no evidence to prove the case of the prosecution. This submission of the learned counsel for the appellants cannot be accepted in view of the judgment of the Hon'ble Apex Court in Satyan vs. State of Kerala reported in (2023) 13 SCC 767 that "the case of the prosecution cannot be rejected solely on the ground that independent witnesses not examined or not supported". It is further held that, on perusal of the evidence on record, if the Court finds that case put forth by the prosecution is
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 trustworthy, the testimonies of official witnesses can be accepted if it is found reliable. (emphasis supplied).
35. The evidence of the witnesses coupled with documentary evidence do establishes the guilt of the accused beyond reasonable doubt. The learned trial Court taking into consideration of all these aspects has come to a definite conclusion that these accused Nos.1 to 3 are guilty of the charges leveled against them.
36. I do not find any factual or legal error in the findings of the trial Court. Therefore, the judgment of conviction so passed by the trial Court does not require any interference by this Court.
37. So far as sentence is concerned, the learned counsel for the appellants submits that looking to the gravity of the offence, the punishment so imposed is harsh and therefore, he submits that as the accused persons are aged persons and they are the only bread earners in the family and accused No.3, when the case was registered
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 was 73 years old, therefore, he submits that some leniency may be shown in imposing the sentence. He submits that instead of punishment of imprisonment, these accused Nos.1 to 3 may be directed to deposit the some more fine amount.
38. As far as offence under Section 228A of IPC is concerned, the punishment prescribed is imprisonment of either description for a term which may extend to two years and shall also be liable to fine. In this Section the word 'shall' has been used by the Legislature that means, both imprisonment and fine shall have to be imposed on the accused. So far as Section 23 of the POCSO Act, 2012 the punishment prescribed is, imprisonment of either description for a period which shall not be less than six months but, which may extend to one year or fine or with both. That means as the word 'shall' is used in this section also, the imprisonment shall not be less than six months. The learned trial Court for the aforesaid offences, by finding them guilty, sentenced accused Nos.1 to 3 for a
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 period of six months and also held liable to pay fine of Rs.30,000/- jointly with default sentence for the offence under Section 228A of IPC and accused Nos.1 to 3 are sentenced to undergo simple imprisonment for a period of six months with fine of Rs.30,000/- with default sentence for the offence under Section 23(1)(2) of POCSO Act, 2012 by exercising its discretion.
39. As minimum sentence is prescribed for the said offences which has been rightly imposed by the trial Court, this Court cannot reduce the sentence so imposed. Therefore, the submission of the learned counsel for the appellant cannot be accepted. In view of the mandatory provisions of Section 228A of IPC and Section 23 of the POCSO Act, 2012 and also the gravity of the offence committed by the accused persons, I do not find any error or infirmity in imposing the sentence by the trial Court. Accordingly, the aforesaid points is answered in favour of the prosecution and against the appellants. Judgment of conviction and order of sentence passed by the trial Court
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021 against accused no.3 do not call for any interference by this Court. Resultantly, I pass the following:
ORDER
(i) Criminal Appeal No.200068/2021 and Criminal Appeal No.200072/2021 are dismissed.
(ii) The judgment of conviction and order of sentence dated 19.04.2021 passed in Special Case No.38/2018 by the Addl.Sessions Judge and FTSC-I, POCSO, Vijayapura is confirmed.
(iii) Bail bonds of accused Nos.1 to 3 are cancelled. They are directed to surrender before the trial Court forthwith to undergo sentence and shall pay the fine amount immediately if not already paid.
(iv) The trial Court is requested to secure the
presence of accused Nos.1 to 3 in
accordance with law and issue conviction warrant for committing them to the Prison.
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NC: 2024:KHC-K:10005 CRL.A No. 200068 of 2021 C/W CRL.A No. 200072 of 2021
(v) Send back the trial court records along with copy of the judgment to the trial Court forthwith.
(vi) Send the operative portion of this order to the trial Court forthwith for compliance through e-mail.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK/SMJ List No.: 19 Sl No.: 1