Karnataka High Court
State Of Karnataka vs Manjunath S/O Shankrappa Vaddarkal on 23 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100248/2019
BETWEEN
THE STATE OF KARNATKA,
REP. BY THE CIRCLE POLICE INSPECTOR,
KARATAGI POLICE STATION, GANGAVATHI
RURAL CIRCLE, DIST: KOPPAL,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
...APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
AND
MANJUNATH S/O.SHANKRAPPA VADDARKAL,
AGE: 22 YEARS, OCC: COOLIE,
R/O. SOMANAL, TQ. GANGAVATHI, DIST: KOPPAL.
...RESPONDENT
(BY SRI. ANAND R. KOLLI, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF CR.P.C., PRAYING TO SET ASIDE AND
GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 14.12.2018 PASSED BY THE DISTRICT
AND SESSIONS/SPECIAL JUDGE, AT KOPPAL IN POCSO (SC)
NO.15/2015 AND CONVICT AND SENTENCE THE RESPONDENT /
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
363, 366, 376 OF IPC AND OFFENCES UNDER SECTION 6 OF
POCSO ACT, 2012.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 08.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Sections 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C." for short), the State has challenged the acquittal of respondent / accused for the offences punishable under Sections 363, 366 and 376 of Indian Penal Code, 1860 (hereinafter referred to as IPC) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act).
2. For the sake of convenience, the parties are referred to by their rank before the Trial Court.
3. The allegations against the accused are that at the relevant point of time, prosecutrix was aged 17 years. On 30.03.2015 at 01:00 p.m., accused kidnapped the prosecutrix with a promise to marry her and on 31.03.2015 took her to the house of CW.11 Mallesh Doddabasappa Angadi, situated at Irandalli of Bengaluru 3 Rural District and stayed there for a period of 4 days. During this period, he committed rape on the prosecutrix and thereby committed the above said offences.
4. Accused has pleaded not guilty to the charges levelled against him and claims trial.
5. In support of the prosecution case, in all 16 witnesses are examined as PWs.1 to 16, Exs.P1 to 25 and MOs.1 to 8 are marked.
6. During the course of his statement under Section 313 of Cr.P.C., accused has denied the incriminating evidence. He has relied upon Exs.D1 and 2 which are portion of statement of PW.2 i.e., the prosecutrix. He has also produced six documents at the time of recording the statement under Section 313 of Cr.P.C.
7. After hearing arguments of both sides, vide impugned judgment and order, the trial Court has acquitted the accused.
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8. During the course of arguments the learned Additional State Public Prosecutor submitted that the impugned judgment and order of acquittal is contrary to law, facts and evidence on record and as such liable to be set aside.
9. At the time of incident the prosecutrix, who is examined as PW.2 was aged about 17 years. PW.4 is the father of the complainant. Both of them have deposed regarding the kidnapping of the prosecutrix. PW.5 the sister of the prosecutrix was very much present when accused kidnapped the prosecutrix and she has supported the prosecution case. The evidence of PWs.2 and 4 also support the case of prosecution. PW.6 the uncle of the prosecutrix is also the scribe of the complaint. The evidence of all these witnesses establishes the charges levelled against the accused. The trial Court has not relied upon evidence of these witnesses, only on the ground that they are related and interested witnesses. Mere interestedness or relationship is not a ground to discard their testimony. Their evidence is to be appreciated cautiously.
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10. He would further submit that as held by the Hon'ble Apex Court in the case of Mohammad Iqbal and Others V/s. State of Jarkhand reported in AIR 2013 SC 3077, the evidence of prosecutrix i.e., PW.2 alone is sufficient to convict the accused. She has deposed in detail about her kidnapping and rape committed by the accused. In Narender Kumar V/s. State (N.C.T. Of Delhi) reported in AIR 2012 SC 2281, the Hon'ble Apex Court observed that even if a woman is of a easy virtue or used to sexual intercourse, it cannot be a license for any person to commit rape and conviction can be based on her evidence and the Court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation.
11. He would further submit that in view of the decision of the Hon'ble Apex Court in (2012) 9 SCC 750 in the case of Ashwini Kumar Suxena V/s. State of Madhya Pradesh, the documents at Exs.P7, 19 and 23 prove the date of birth of the prosecutrix as 04.08.1997 and as such, on the date of incident i.e., 30.03.2015 she 6 was aged 17 years. This fact is not appreciated by the trial Court. In view of proof of age of the prosecutrix, the documents produced by the accused during 313 statement cannot be relied upon. Therefore, relying upon the documents produced by the accused at his 313 statement, the trial Court has erred in holding that, as on the date of incident the prosecutrix was major. The trial Court has also not given due importance to the statement of the prosecutrix under Section 164 of Cr.P.C. and also holding that the medical evidence is negative. The trial Court has also failed to raise presumption under Sections 29 and 30 of POCSO Act and prays to allow the appeal, set aside the impugned judgment and order of acquittal and convict the accused and sentence him appropriately.
12. On the other hand, the learned counsel representing the accused submitted that as on the date of alleged incident the prosecutrix was major and the prosecution has failed to prove that accused kidnapped the prosecutrix and raped her. In the absence of legal evidence the trial Court has rightly acquitted the accused. He would further submit that after the acquittal, the 7 presumption of innocence of the accused is fortified and prays to dismiss the appeal.
13. We have heard the arguments of both sides and perused the records.
14. Thus, the State has challenged the impugned judgment and order of acquittal passed by the trial Court holding that as on the date of incident prosecutrix was major i.e., had completed the age of 18 years and the prosecution has failed to establish that she was kidnapped/abducted and raped by the accused. According to the prosecution, the date of birth of the prosecutrix is 04.08.1997. On the other hand, the accused has contended that the date of birth of the prosecutrix is 16.04.1996.
15. In order to prove the age of the prosecutrix the prosecution has relied upon the evidence of PW.13 Mahesh Kumar, the Head Master of the Higher Primary School, where the prosecutrix took admission for First Standard. PW.14 is the Assistant Teacher who has made the entry in the Admission Register pertaining to the 8 admission of the prosecutrix. Ex.P7 is the application for admission. Ex.P19 is the original school Admission Register and after retaining photocopy of the relevant portion at Ex.P19(a), the original register has been returned. Therefore, Ex.P19(a) is the relevant portion of the admission register pertaining to the prosecutrix. Ex.P18 is the certificate issued by the school regarding the date of birth of the prosecutrix. Ex.P23 is the original SSLC marks card. In all these documents, the date of birth of the prosecutrix is given on 04.08.1997. If these documents are taken into consideration, then as on the date of incident the prosecutrix was aged 17 years i.e., she has not completed the age of 18 years. In view of the fact that the accused has disputed that the date of birth as reflected in these documents is the correct date of birth of the prosecutrix and on the other hand, according to the accused, the prosecutrix was born on 16.04.1996, the evidence of PWs.13 and 14 is to be examined as to whether the entries made in the School Register at the time of admission of the prosecutrix are correct. 9
16. Before appreciating the oral and documentary evidence placed on record, it is necessary to refer to some of the decisions of the Hon'ble Apex Court as to how the date of birth of a child in conflict with law as well as children who are victims is to be ascertained. In the decision reported in (2013) 14 SCC 637 in the case of Mahadeo S/o. Kerba Maske Vs. State of Maharashtra, the Hon'ble Apex Court making reference to the statutory provisions contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, (hereinafter referred to as "Rules, 2007"), wherein under Rule 12, the procedure to be followed in determining the age of the Juvenile is set out, held that in every case concerning a child or juvenile in conflict with the law, the age determination inquiry shall be conducted by the Court or the Board or as the case may be, by the committee seeking evidence by obtaining:
"12(3)(a)(i) The matriculation or equivalent certificates, if available; and in the absence whereof;10
(ii) The date of birth certificate from the school (other than a play school) first attended;
and in the absence whereof;
(iii) The birth certificate given by a corporation or a municipal authority or a Panchayat."
17. The Juvenile Justice Act is amended in 2015 i.e., The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "Act, 2015"). However, the State Government has not framed separate Rules. But, the procedure for determining age of the juvenile is incorporated in Section 94 of the Act, 2015.
18. However, in the case of Sanjeevkumar Gupta Vs. State of Uttar Pradesh and another, reported in (2019) 12 SCC 370, the Hon'ble Supreme Court while deciding the claim of juvenility of the accused in a criminal trial, held that Section 7A of Act, 2000 provides the procedure to be followed when a claim of juvenility is raised before a Court. Upon a claim being raised that an accused was juvenile on the date of commission of the offence, the Court is required to make an enquiry, take evidence and to determine the age of the person. The 11 Court has to record a finding whether a person is a juvenile or a child, stating the age as nearly as may be. Rule 12(3) of Rules, 2007 contains a procedural provision governing the determination of age by the Court or by the Board. In that case, on appreciation of the facts, the Hon'ble Supreme Court rejected the entry in the matriculation certificate and by considering the voluntary disclosure made by the accused while obtaining both Aadhaar Card and driving licence, held that the accused was not a juvenile as on the date of the commission of the offence.
19. Similar view is taken by the Full Bench of the Hon'ble Supreme Court in the case of Ramvijay Singh Vs. State of Uttar Pradesh reported in 2021 CRI.L.J. 2805. In this decision also the accused has taken the plea of juvenility. Referring to Rule 7A of Act, 2000 and Section 94 of the Act, 2015, wherein procedure for determining the age of a child in conflict with law is incorporated, the Hon'ble Supreme Court observed that the procedure prescribed in Rule 12 of Rules, 2007, is not materially different than the provisions of Section 94 of Act, 2015, to 12 determine the age of the person. There are minor variations as the Rules 12(3)(a)(i) and (ii) having clubbed together with slight changes in the language. Section 94 of the Act, 2015, does not contain the provision regarding the benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules, 2007. At para No.16 of the judgment, the Hon'ble Supreme Court held that the Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as in that case, all the three eventualities mentioned in Sub Section 2 of Section 94 of the Act, 2015 are either not available or are not found to be reliable and trustworthy.
20. Thus, in view of the above three referred judgments of the Hon'ble Supreme Court, the procedure contemplated under Rule 12 of Rules, 2007 and Section 94 of the Act, 2015, is only directory and the Court may examine any other evidence including the documents referred to in Rule 12 of the Rules, 2007 which is in pari materia with Section 94 of the Act, 2015, and determine the age of the juvenile or a victim under POCSO Act. 13
21. In the light of the ratio in the above decisions, it is to be examined whether 04.08.1997 as the date of birth entered in Exs.P7, 18, 19(a) and 23 is to be accepted as correct or 16.04.1996, as per the birth certificate produced by the accused during his statement under Section 313 of Cr.P.C.
22. PW.13 Mahesh Kumar, the Head Master of the School has given evidence based on the entries in the original Admission Register. Since he is not the one who has made the entries in the Register, the prosecution has examined PW.14 the Assistant Teacher. He has deposed that at the time of admission of the prosecutrix he was working as Head Master. He has stated that the prosecutrix was admitted to the School by her uncle Yamanoorappa Patil, who is examined as PW.6. The evidence of PW.14 prove that at the time of admission, birth certificate was not produced and only on the basis of oral instructions and entry in the application, the prosecutrix was admitted to the school. It is pertinent to note that in the application for admission at Ex.P7 as well as in the Admission Register at Ex.P19(b) there are 14 overwriting with regard to the month and year of birth of the prosecutrix. In this regard, PW.14 has deposed that earlier, the month was given as July and year of birth was given as 1998 and after the said Yamanoorappa observed it and instructed that it was August-1997, the said correction has been made. According to the original entry i.e., July-1998 means as on the date of the incident the prosecutrix was 16 years as against 17 years claimed by the prosecution. The overwriting and earlier entry and its correction would help the accused by increasing the age of the prosecutrix by one year. Therefore these overwriting and corrections are not prejudicial to the accused. PW.14 has clearly stated that after these entries have been corrected, signatures have been made endorsing the correction.
23. Ex.P18 is the certificate issued by the School certifying the date of birth as 04.08.1997 as per the entries in the School Register. This entry is based on the application for admission as well as the admission register. As per these documents, as on the date of incident the prosecutrix was only 17 years. Now it is to be examined 15 whether these entries reflect the true date of birth of the prosecutrix. As discussed earlier, while admitting the prosecutrix to the school, her guardian i.e., PW.6 Yamanoorappa has not produced the birth certificate and the entries therein are based on his oral say.
24. Denying and disputing that the prosecutrix was born on 04.08.1997 as reflected in the School records including the SSLC Marks card, the accused has produced the certified copy of birth certificate issued by Tahasildar, Kushtagi. As per this document, the mother of the prosecutrix i.e., Basawwa Sharanappa Dandin has given birth to a female child on 16.04.1996 and the date of registration is 28.04.1996. During the cross-examination of the prosecutrix as well as her father and uncle, it is elicited that the prosecutrix was born at Ryavanaki which is the maternal home of the mother of the prosecutrix. In order to show that 04.08.1997 is not registered as the date of birth of the prosecutrix either at Kushtagi or Koppal, the accused has produced endorsement given by the respective Tahasildars that no entry of the child of the parents of the prosecutrix with the date of birth 16 04.08.1997 is registered either at the Ryavanaki of the Kushtagi Taluk, Koppal District or at Somanal of Gangavathi Taluk, Koppal District. In the birth certificate dated 16.04.1996 of the female child of the parents of the prosecutrix, the name of the child is given as Nagaratna, whereas the name of the prosecutrix is not Nagaratna. It is pertinent to note that as per the evidence placed on record, the parents of the prosecutrix are having only 2 daughters of which the prosecutrix is the eldest. Her younger sister i.e., PW.5 Manjula is 4 years younger to the prosecutrix. In spite of the fact that in the birth certificate the name of the child is given as Nagaratna, we have no hesitation to hold that it pertains to the prosecutrix. The possibility of subsequently changing the name of the child can not be ruled out. Therefore, based on the preponderance of the probabilities, the accused has established that the prosecutrix was born on 16.04.1996 and as such she was major as on the date of alleged incident.
25. This contention gets support from the statement of the prosecutrix given under Section 164 of 17 Cr.P.C. before the Judicial Magistrate. This document is marked as Ex.P4. This is the earliest version of the say of the prosecutrix and it is recorded before the judicial magistrate. While giving her statement, she has stated her age to be 18 years. She has specifically stated that she was born during the year 1996, but she do not remember the date and month of her birth. During the course of her statement she goes on stating that she is in love with accused and wanted to marry him, but it was opposed by her parents and she was confined in the home etc.
26. However, while giving evidence before the Court, dramatically she has changed her version claiming that she was minor as on the date of her kidnapping etc. However, her oral testimony before the Court while giving the evidence is contrary to her statement under Section 164 of Cr.P.C. In view of the fact that while admitting the prosecutrix to the School, her birth certificate was not given and the entry in the School Register and subsequent entry in the SSLC marks card which is based on the School Admission Register cannot be accepted as conclusive proof of her date of birth, vis-a-vis the certified copy of the birth 18 certificate produced by the accused. Therefore, based on these documents, the trial Court has came to a correct conclusion that as on the date of the alleged offence, the prosecutrix was major. We find no perversity in the said conclusion and it is based on admissible documents.
27. When once it is held that as on the date of the incident, the prosecutrix was not minor, the oral testimony regarding the kidnapping / abduction of the prosecutrix and the rape committed by the accused are to be examined keeping in mind that as on the date of the alleged offence, the prosecutrix was major. During the course of her evidence, the prosecutrix has stated that on the date of incident, while she was sitting outside the house, accused came and forcibly took her with him. She states that from Somanal, accused took her in a Bus to Karadagi, from there to Gangavathi and at 08:00 p.m. in they boarded the Bengaluru Bus and on the next day at 07:30 a.m., they reached K.R.Puram. She has also deposed that from K.R.Puram accused took her to the house of PW.10 Mallesha and they stayed in his house for a period of 5 days and during night of all these 5 days, 19 accused committed rape on her against her will. Admittedly at the time of incident, the prosecutrix was major. She has not raised any hue and cry and tried to get any help from the public or anyone, against the accused forcibly taking her. The very fact that as on the date of the incident she was a major and she did not raise any objections for being taken goes to show that she has willingly gone with the accused.
28. The medical examination of the prosecutrix as per Ex.P9 does not disclose any injuries on her person to show her resistance to the rape committed by the accused against her will. The FSL Report at Ex.P11 does not refer to the presence of seminal stains or spermatozoa on the clothes of the prosecutrix. Even though the final opinion at Ex.P12 state that the prosecutrix was used to an act like that of sexual intercourse as hymen was found to be ruptured, it supports the statement of the prosecutrix under Section 164 of Cr.P.C., that as on the date of incident, she was major and as such she willingly went with the accused. In view of her statement under Section 164 of Cr.P.C. at Ex.P4 as well as her birth certificate 20 produced by the accused during 313 statement, goes to show that the oral testimony of the prosecutrix before the Court is not reliable and trustworthy. For reasons best known, before the Court, the prosecutrix has dramatically changed her version and claimed that the accused took her forcibly and committed rape on her against her will.
29. Therefore, as held by the Co-ordinate Bench of this Court in the case of State of Karnataka Vs. Gowtham reported in 2016 (4) Kar.L.J. 60 (DB), wherein the prosecutrix was aged 15 years and after analyzing the evidence, this Court held that having regard to the fact that at no point of time, the prosecutrix raised any hue and cry and it goes to show that she voluntarily went with the accused and therefore the provisions of Section 366 of IPC are not attracted i.e., the allegations of kidnapping are not proved. In the present case also the prosecution has failed to prove the offences punishable under Sections 363 and 366 of IPC.
30. So far as the evidence of the prosecutrix that accused had sexual intercourse with her against her will 21 and without her consent, at the first available opportunity, during the course of her statement under Section 164 of Cr.P.C., the prosecutrix has given a clear go bye to the allegations that there was force exerted by the accused. Only during the course of her evidence, she has changed her version. We find her testimony not reliable. She has no regard for the truth. As held by the Co-ordinate Bench of this Court in Gowtham's case, referred to supra, the factum of whether victim was sexually assaulted is not established by the prosecution especially when the presence of seminal stains is not detected as noticed in the FSL Report and thereby it is not supporting the prosecution case.
31. Similar view was taken by the Hon'ble Supreme Court in the matter of Alamelu and another Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385, wherein it was observed by the Hon'ble Apex Court that though the prosecutrix had several opportunities to protest and raise an alarm, she did not do so. Her behaviour of not complaining to anybody at any stage after being allegedly abducted is wholly 22 unnatural. Therefore, conviction solely on the testimony of prosecutrix is not sustainable. Thus from the material placed on record, it is evident that as on the date of incident, the prosecutrix was a major and she has willingly accompanied the accused on her own volition. Consequently, the prosecution has failed to establish that there was a kidnapping / abduction and rape of the prosecutrix.
32. In Mohammad Iqbal Singh's case, referred to supra, relied upon by the prosecution, the Hon'ble Supreme Court held that, even solitary evidence of prosecutrix is sufficient to convict the accused. However, such evidence must be cogent, convincing and reliable. As discussed above, in the present case, the testimony of prosecutrix is not reliable and it does not inspire the confidence of the Court. Therefore, we hold that this decision is not applicable to the case on hand.
33. So far as Narender Kumar's case, referred to supra, relied upon by the prosecution, wherein the Hon'ble Apex Court held that even if a woman is of a easy virtue or 23 use to sexual intercourse, it cannot be license for any person to commit rape and conviction can be based on her evidence. In the present case the prosecution has failed to prove that as on the date of incident, prosecutrix was minor and accused has committed rape on her against her will. Therefore we hold that this decision is also not applicable to the case on hand.
34. Taking into consideration all these aspects the learned Special Judge has come to a correct conclusion and acquitted the accused. We find no perversity in the conclusions drawn by him. In the result, the appeal filed by the State fails and accordingly it is dismissed.
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JUDGE Sd/-
JUDGE PJ / Rsh