Karnataka High Court
Siddaruda @ Karna vs The State Of Karnataka on 18 November, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.1300/2016
Between:
Siddaruda @ Karna,
S/o Hanumanthappa,
Aged about 37 years,
Hosa Colony Nenivala,
Challakere Taluk,
Chitradurga District - 577 522. ...Appellant
(By Sri G.M. Ananda, Adv.)
And:
The State of Karnataka,
By Kodigenahalli Police,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru - 560 001. ... Respondent
(By Sri. K. Nageshwarappa, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the judgment and order dated
29.02.2016 and sentence dated 01.03.2016 passed by the
III Addl. S.J., Tumakuru in Spl.C.No.428/2014 -
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convicting the appellant/accused for the offence
punishable under Section 6 of POCSO Act.
This Criminal Appeal is coming on for Hearing this
day, the Court delivered the following:
JUDGMENT
This appeal is directed against the judgment dated 29.2.2016 and sentence dated 1.3.2016 in Spl. Case No.428/2014 passed by the III Addl. Sessions Judge, Tumakuru and Special Court for Trial of cases under SC/ST (Prevention of Atrocities) Act, 1989 and Special Court for the Trial of cases under Protection of Children from Sexual Offences Act, 2012.
2. By the impugned judgment, the appellant/sole accused is convicted for the offence punishable under Section 6 of the Protection of Children from Sexual offences Act, 2012 and is sentenced to undergo 10 years rigorous imprisonment with fine of Rs.10,000/-, in default to pay the fine, to undergo simple imprisonment for one year.
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3. The accused was sent up for trial on the allegation that on 15.5.2011 at about 10 a.m. when minor daughter of the compaliant-PW1 was alone in the house, the accused kidnapped her and thereafter committed forcible intercourse on her against her will. Further, the case of the prosecution is that during the commission of the offence the accused was on parole and even after the expiry of the parole period, he remained absconding.
4. During the course of investigation, he was arrested on 5.6.2013. With the permission of the Court, his blood was drawn and the same was subjected to DNA examination. The blood of the victim as well as the child born to her was also collected with prior permission of the court and on obtaining opinion of PW18, charge sheet was filed against the accused alleging commission of the offences under Sections 366-A and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012.
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5. At trial, the prosecution examined 21 witnesses and produced in evidence 21 documents as Ex.P.1 to P.21 and the material objects at M.O.1 to 11. All the material witnesses examined by the prosecution including the victim of the offence having turned hostile, the learned trial Judge relied on the evidence of the official witnesses and based on the DNA report, convicted the accused for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and acquitted him of the charges under Sections 366-A and 376 of IPC.
6. I have heard Sri. G.M. Ananda, the learned counsel for the appellant/accused and learned HCGP and examined the records.
7. Learned counsel appearing for the appellant would submit that all the material witnesses examined by the prosecution having turned hostile, the prosecution is not left with any evidence, even to prove the charge under Section 6 of the Protection of Children from Sexual Offences Act, and in the absence of any evidence to show 5 that the victim was subjected to rape or sexual intercourse, the finding recorded by the trial court solely based on the opinion of the scientific officer is perverse and is liable to be set aside.
8. On going through the records, it is seen that, out of 21 witnesses examined by the prosecution, all the material witnesses including the victim and the complainant have wholly turned hostile to the prosecution case. But, the fact that the minor victim has given birth to a female child has been established by the prosecution without any pale of doubt. Undisputedly, the law was set in motion by the father of the minor victim alleging that the accused abducted his daughter. In the complaint a specific allegation was made that the accused who was then serving life sentence had come to the village on parole. The fact, that during the relevant period, the accused was released on parole is proved by production of the parole card -M.O.2.
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9. Evidence of PW.20, CPI of Madhugiri Circle reveals that on 11.7.2013, he produced the accused and the victim before the Addl. C.J.M. Madhugiri and obtained permission to subject them to DNA examination. PW18, Scientific Officer has deposed that on 31.7.2013, he received three exhibits for DNA profile. He ascertained that the said exhibits contained blood samples drawn in the presence of CJM Madhugiri. Blood samples were subjected to DNA examination and on comprehensive analysis of the exhibits, he submitted his report in terms of Ex.P.21 with the following conclusion:
"From the DNA profile results of the blood samples sent in item nos.1, 2 and 3, it is found that:
1. The DNA profile of the sample blood sent in item no.2, the female child Veeravignapti Suma Siddaruda d/o Ms. Sumithra is consistent with having come from the offspring of Siddaruda @ Karna s/o Sri Hanumanthappa and Ms Sumithra d/o Lingappa Nayaka, and matching with the 7 DNA profile of the sample blood sent in item nos.1 and 3 respectively.
The female child Veeravignapti Suma Siddaruda d/o Ms. Sumithra, sample blood sent in item No.2 is an offspring and biological daughter of Sri.Siddaruda @ Karna s/o Sri Hanumanthappa and Ms.Sumithra d/o Lingappa Nayaka, sample blood sent in item nos.1 and 3 respectively."
10. The report at Ex.P.21 contains the methodology adopted by PW18 and the grounds and reasons in justification of the opinion given by him with regard to the paternity of the child born to the accused and the victim. This evidence in my view, conclusively determines the fact that the child was born to the victim through the accused. The fact that the victim was a minor and was aged below 16 years as on the date of subjecting her to medical examination is also proved by the certificate issued by the school authority where the victim studied as per Ex.P15, wherein the date of birth of the victim is shown as 1.4.1996. In the wake of the said finding, the question of 8 victim giving consent for the sexual intercourse becomes immaterial. Thus, it stands established that the accused committed the rape on the victim within the meaning of section 375 of IPC.
11. The Trial Court however has convicted the accused under section 6 of the POCSO Act. This conviction is challenged on the ground that Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act') came into force only on 3.2.2013, whereas the offence in question is alleged to have been committed much prior to the enforcement of the POCSO Act. Therefore, it is contended that the conviction of the appellant under Section 6 of the POCSO Act is bad in law and cannot be not sustained.
12. The contention urged by the learned counsel is based on the jurisdictional fact and therefore deserves to be accepted. Undisputedly, the POCSO Act came into operation with effect from 3.2.2013 whereas the offence in question is proved to have been committed much prior to 9 the coming of the POCSO Act. Therefore, the trial Court has committed the jurisdictional error in convicting the appellant/accused for violation of law which was not in force at the time of commission of the act charged as an offence. As a result, the impugned conviction under Section 6 of the POCSO Act cannot be sustained.
13. Nonetheless, the facts and circumstances of this case, in my view, do not entitle the accused for acquittal of the charges proved against him. The records reveal that in addition to the charge under Section 6 of the POCSO Act, specific and distinct charges were framed against the accused under Sections 366-A and 376 of IPC. The trial Court has recorded a clear finding that the ingredients of the offence punishable under section 376 IPC have been proved by the prosecution. But the trial Court chose to convict the accused under Section 6 of the POCSO act apparently for the reason that aggravated offence was committed by the accused against a minor. This could be gathered from para-19 of the impugned 10 judgment wherein the learned trial Judge has observed as under:
"In the present case, charge was also framed for the offence under Section 376 of IPC, the ingredients mentioned in Section 376 of IPC are similar to that of Section 6 of the POCSO Act. When the court comes to a conclusion that the accused has committed an offence punishable under Section 6 of POCSO Act, it is not proper to convict the accused under Section 376 of IPC, hence, the accused is liable for acquittal for the offence under Section 376 of IPC. "
14. On considering the evidence and the material on record, I am also of the view that the facts proved against the accused squarely attract the offence punishable under section 376 of IPC.
15. But the question that requires to be considered is whether the accused who has been tried by the Special Court constituted under the provisions of the POCSO Act could be convicted only for the offence under IPC when the provisions of the POCSO Act are found not 11 applicable to the facts of the case. In order to answer this question, it needs to be noted that there is no material difference between the definition of rape in terms of section 375 of the IPC and penetrative sexual assault defined in section 3 of the POCSO Act. As explained by the Hon'ble Supreme Court of India in the case of INDEPENDENT THOUGHT vs. UNION OF INDIA, AIR 2017 SC 4904, at para 47 that, "The only difference is that the definition of rape is somewhat more elaborate and has two exceptions, but the sum and substance of two definitions is more or less the same and the punishment (under Section 376(1) of the IPC) for being found guilty of committing the offence of rape is the same as for penetrative sexual assault (under Section 4 of the POCSO Act). Similarly, the punishment for 'aggravated' rape under Section 376(2) of the IPC is the same as for aggravated penetrative sexual assault under Section 6 of the POCSO Act. Consequently, it is immaterial if a person is guilty of the same sexual activity under the provisions of the POCSO Act or the provisions of the IPC - the end result is the same and only the forum of 12 trial charges. In a violation of the provisions of the POCSO Act, a Special Court constituted under Section 28 of the said Act would be the Trial Court but the ordinary criminal court would be the Trial Court for an offence under the IPC.
16. Undisputedly in the instant case, the trial was conducted by the III Additional Sessions Judge which was invested with the powers of a Special Court constituted under Section 28 of the POCSO Act. Section 28 of the POCSO Act invests power with the Special Court to try an offence under the POCSO Act and also to try an offence with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. In other words, by virtue of sub-section 2 of Section 28, "while trying an offence" under the POCSO Act, a Special Court constituted under Section 28 is empowered to try the offences under the IPC as well. It is not in dispute that charges were framed against the accused both under the provisions of POCSO Act as well as under IPC. Therefore, the existence of jurisdiction to try IPC offences, while 13 trying an offence under POCSO Act has been satisfied. Under the said circumstance, on conclusion of trial, if it has turned out that the provisions of POCSO Act are not applicable to the facts of the case, that does not take away the jurisdiction of the Special Court to convict the accused solely for the IPC offences. Hence, in my considered opinion, the conviction of the accused for the offence under Section 376 of IPC could be maintained.
17. Viewed from another angle, the trial was conducted by the Sessions Court which was designated as a Special Court in terms of Section 28 of the POCSO Act. Merely because a court of Sessions is designated as Special Court, it is not denuded of its oridinary jurisdiction to try the offence under IPC or non-POCSO cases. Section 26 of the Cr.P.C. empowers the High Court and the Court of Sessions to try any offences under the Criminal Code, even though it is triable by a Magistrate, according to the 6th column of I Schedule of the Code. Therefore, the Sessions Court has inherent jurisdiction to 14 try IPC cases. Hence, it cannot be said that the prosecution of the accused by the Sessions Court is without jurisdiction. It is not a case where the Court which tried the accused had no inherent jurisdiction to try the offence and the offender. Even otherwise, as per the scheme of the POCSO Act, a Court of Session is merely designated as a Special Court for the purpose of providing speedy trial. The trial essentially is conducted by the Sessions Court. Therefore, the trial of the accused and the consequent conviction for the offence under Section 376 of IPC cannot be said to be without jurisdiction. Hence, in the light of the above factual and legal position, I hold the accused guilty of the offence punishable under Section 376 of IPC in lieu of Section 6 of the POCSO Act. Accordingly, the conviction recorded by the Special Court under Section 6 of the POCSO Act shall stand altered to the conviction under Section 376 of IPC.
18. Insofar as the sentence awarded by the trial court is concerned, learned counsel for the accused 15 submits that the accused has married the victim and on account of the said fact, all the material witnesses including the parents of the victim turned hostile to the prosecution case. Therefore, in the interest of victim, he pleads that the circumstances of the case be considered as a special case to reduce the sentence as per the proviso appended to section 376 of IPC.
19. The plea put forwarded by the accused cannot be accepted for the reason that the offence is proved to have been committed when the accused was on parole. There is nothing on record to show that after the expiry of the parole period, the accused has surrendered to serve the sentence. Having regard to the fact that the offence was committed against a minor girl, while he was serving the sentence in a criminal offence, I do not find that the accused is entitled to the benefit of the proviso to section 376 of IPC, nor is he entitled to plead for reduction of sentence. Marriage of the victim with the accused even if it is true, cannot be taken as special reason to reduce the 16 sentence in the fact situation of this present case. Therefore, having regard to the gravity of the offence, I am of the view that the sentence imposed by the trial court is well merited and justified and does not call for any interference. However, for the reasons discussed above, the conviction of the accused under Section 6 of the POCSO Act shall stand altered to the conviction under Section 376 of the IPC. As a result, the appeal is liable to be dismissed. Hence the following order:
Crl.A.No.1300/2016 is dismissed.
Sd/-
JUDGE Psg/mpk/-*