Karnataka High Court
Saibanna vs The State Through on 3 July, 2024
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NC: 2024:KHC-K:4535-DB
CRL.A No.200050 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200050 OF 2019
BETWEEN:
SAIBANNA
S/O REVANSIDDAPPA AARI,
AGE: 26 YEARS,
OCC: COOLIE,
R/O: RATKAL, TQ:CHINCHOLI,
DIST: KALABURAGI - 585 101.
...APPELLANT
(BY SRI BABURAO MANGANE, ADVOCATE)
AND:
Digitally signed by
BASALINGAPPA
SHIVARAJ THE STATE THROUGH
DHUTTARGAON
RATKAL POLICE STATION,
Location: HIGH
COURT OF TQ: CHINCHOLI, DIST: KALABURAGI.
KARNATAKA REP. BY ADDL. S.P.P.,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585 107.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C, PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER PASSED BY THE
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NC: 2024:KHC-K:4535-DB
CRL.A No.200050 of 2019
HON'BLE II ADDITIONAL SESSIONS JUDGE AT KALABURAGI IN
SPL. CASE (POCSO) NO.7/2016 DATED 17.06.2017 AND
20.06.2019 AND ACQUIT THE ACCUSED / APPELLANT FROM
THE CHARGES PUNISHABLE UNDER SECTION 376(2) 9I) OF
I.P.C., AND SECTION 6 OF POCSO ACT, 2012, IN THE
INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, RAJESH RAI K. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the convicted-accused directed against the judgment and order of sentence dated 17.06.2017 passed by the II Additional District and Sessions Judge, Kalaburagi in Special Case (POCSO)No.7/2016, wherein the appellant/accused is convicted for the offence punishable under Section 376(2)(i) of Indian Penal Code, so also Section 6 of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act', for short) and sentenced the accused to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/- for the offence punishable under Section -3- NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 376(2)(i) of IPC and in default of payment of fine amount, he shall undergo simple imprisonment for six months.
2. The factual matrix of the prosecution case is that:
On 24.11.2015 at about 2.00 p.m., PW.1 i.e., mother of the victim was taking lunch in her house, at that time, the accused i.e., brother of her co-sister came and picked up her daughter/victim, who was aged about 3 years on the guise that he would get her chocolates. As earlier also, he used to take her children and get them chocolates, PW.1 kept quiet. After some time, PW.2 i.e, cousin sister of the victim rushed to PW.1 and informed that the victim is crying loudly coming out from the house of accused. When PW.1 rushed to the spot, she saw her daughter/victim was keeping her legs apart. On enquiry, victim revealed that, the accused laid her on ground in his house and committed forcible sexual intercourse on her. Thereafter, PW.1 also noticed bleeding from her private part. Though PW.1 went to the house of the accused to -4- NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 enquire about the same, he was already fled away from the spot. Thereafter, PW.1 called the neighbours i.e., PWs.4, 5 and CW.9 and shifted the victim to the hospital for treatment. Subsequently, PW.1 lodged the complaint before the respondent-police against the accused as per Ex.P1.
3. On receipt of the complaint of PW.1 i.e, Ex.P1, PW.12 - PSI of respondent-police registered the case in crime No.125/2015 dated 24.11.2015 against the accused for the offence punishable under Section 376 of IPC and under Section 6 of POCSO Act, as per Ex.P.11. Later, PW.12-PSI took up further investigation and arrested the accused on 25.11.2015 and produced him before the Special Court. During the course of investigation, PW.13 drawn the spot mahazar and sent the victim for medical examination and after obtaining necessary documents from the concerned authorities laid the charge sheet against the accused for the offence punishable under -5- NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 Section 376(2)(i), 406 read with Sections 6 and 8 of POCSO Act.
4. Based on the said charge sheet, the Special Judge took cognizance of the offence and framed the charges against the accused for the offence punishable under Section 376(2)(i) of IPC and under Section 6 of POCSO Act. However, the accused denied the charges and claims to be tried.
5. In order to prove the charges leveled against the accused, the prosecution in total examined 14 witnesses as PWs.1 to 14 before the trial Court, so also got marked 14 documents as Exs.P1 to 14 and got identified 3 Material Objects marked as MOs.1 to 3. After closure of the prosecution evidence, learned Sessions Judge read over incriminating portion of evidence of the material witnesses to the accused as contemplated under the provision of Section 313 of Cr.P.C., however, the accused denied the same. The defence of the accused is of total denial and that of false implication. The accused -6- NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 neither examined any witnesses nor got marked any documents.
6. After assessment of oral and documentary evidence, the learned Sessions Judge convicted the accused for the offence punishable under Section 376 (2)(i) of IPC and also Section 6 of POCSO Act. Further, the Sessions Judge, sentenced the accused for the offence punishable under Section 376(2)(i) of IPC as stated supra. The said judgment is under challenge in this appeal.
7. We have heard the learned counsel for the appellant so also learned Additional State Public Prosecutor for the respondent-State.
8. It is the primary contention of the learned counsel for the appellant that the judgment under this appeal suffers from illegality and perversity and the learned Sessions Judge convicted the accused totally based on surmises and conjectures without appreciating the evidence on record in right perspective which caused great miscarriage of justice to the accused. He would also -7- NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 contend that though the victim girl examined before the Court she is unable to depose about the actual incident. The other evidence the prosecution relied is PWs.1 and 2 i.e., mother of the victim so also cousin sister of the victim, on perusal of their evidence there are material contractions and omissions in their testimony, which goes to the root of the prosecution case. Further, the medical evidence also goes against the prosecution case. Accordingly, he prays to allow the appeal by setting aside the impugned judgment.
9. Alternatively, learned counsel for the appellant submits that the sentence imposed by the learned Sessions Judge be modified to a lesser extent by considering the un-amended Section 6 of POCSO Act so also under the provisions of Section 376 (2)(i) of IPC. With these submissions, he prays to allow the appeal.
10. Per contra, learned Additional State Public Prosecutor would contend that the learned Sessions Judge after meticulously examining the evidence of material -8- NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 witness passed the well reasoned judgment which does not call for interference by this Court. He would further contend that perusal of the evidence of PW.1 i.e., mother of the victim and PW.2 i.e, sister of the victim who is an eye witness to the incident, so also the evidence of PW.3, and the neighbours who have shifted the victim to the hospital immediately after the incident, learned Sessions Judge rightly convicted the accused for having committed the brutal act on PW.3 who was infant at the time of incident. In such circumstance, the learned Sessions Judge rightly awarded maximum punishment to the accused which does not call for interference. Such being the position, the accused does not deserve any mercy at the hands of this Court. Accordingly, he prays to dismiss the appeal.
11. Having heard the learned counsel for the respective parties, so also having perused the evidence and documents placed before us, the points that would arise for our consideration are:
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 i. Whether the judgment under this appeal suffers from any perversity or any illegality?
ii. Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 376 (2)(i) of IPC by imposing sentence of life imprisonment?
12. This Court being the Appellate Court, carefully re-appreciated the evidence available on record as under:
13. PW.1 - Laxmi, is the mother of the victim in this case. She lodged the complaint before the police against the accused immediately after the incident as per Ex.P1. Before the Court she reiterated the contents of her complaint and deposed that on the date of incident, accused took her daughter by inducing that he would get chocolate for her and thereafter, committed sexual intercourse in his house. After sometime, PW.2 co-sister's daughter informed her that accused committed sexual
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 assault on the victim. As such, she rushed to the house of the accused and saw her daughter was bleeding. On enquiry, victim informed that accused committed forcible sexual act on her. Thereafter, herself, her husband and the neighbours shifted the injured victim to the hospital for treatment and subsequently, lodged the complaint before the respondent police as per Ex.P1. She also identified the material objects MOs.1 and 2 i.e,. clothes worn by the victim at the time of incident.
14. PW.2 is the eyewitness and cousin of the victim. According to her on the date of incident, accused took her sister to his house and after some time, when she heard the screaming sound of her sister, she went inside the house of the accused wherein she saw accused was sitting on her sister. As such, she cried for help and thereafter, her mother and neighbours took her sister to the hospital for treatment. She also deposed about her statement under Section 164 of Cr.P.C., recorded before the Magistrate.
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019
15. PW.3 is the victim deposed that accused took her to his house on the pretext of getting chocolate and thereby committed sexual assault on her. She also stated that due to the act of accused she sustained bleeding injury in her private part and she informed the same to her mother-PW.1 and thereafter, her mother took her to the hospital.
16. PW.4-Indramma is the neighbour of PW.1 deposed that on the date of incident, PW.1 informed her that accused had committed sexual assault on her. However, she also stated that she saw the victim and blood was oozing from the private part of the victim. Thereafter, PW.1 and her husband shifted the victim to the hospital.
17. PW.5- Channappa the father of victim has also deposed in similar line as that of PW.1 and PW.4.
18. PW.6-Bharati is the witness for spot mahazar Ex.P2. She identified the photograph of the alleged spot as per Exs.P3 and P4.
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19. PW.7-Santosh is the witness for the seizure mahazar i.e., Ex.P5 i.e,. clothes of the victim which were worn by her at the time of incident.
20. PW.8- Dilip is the Assistant Engineer drawn spot sketch as per Ex.P6.
21. PW.9-Dr.Devindra is the Medical Officer who examined accused and issued certificate as per Ex.P7 and Ex.P8 stating that accused was capable of performing sexual act.
22. PW.10-Ambika is the Head Master of the Government High School, Ratkal, who issued the birth certificate of accused as per Ex.P9.
23. PW.11-Dr.Kaveri is the Medical Officer who treated the victim and issued medical certificate as per Ex.P10.
24. PW.12-Surekha is the then PSI who registered the FIR as per Ex.P11 based on the complaint lodged by PW.1 as per Ex.P1.
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25. PW.13-R.Panchaksharayya is the CPI- Investigating Officer who investigated the case and after completing investigation laid charge sheet before the Special Court against the accused.
26. PW.14-Dr.Chaya Kumar is the Deputy Director of RFSL after examining the material objects sent by the police issued the FSL report as per Ex.P13.
27. On careful perusal of above evidence, in order to prove the charges leveled against the accused, the prosecution primarily relied on the evidence of PW.3 the victim, PW.1 mother and PW.2 i.e,. sister of the victim in this case. On perusal of evidence of these three witnesses, PW.3 being victim aged about 3 to 4 years deposed before the Court that on the date of incident, accused took her to his house in the guise of getting chocolate to her and committed sexual intercourse on her. Due to the same, she sustained bleeding injuries and she informed the same to her mother PW.1 and PW.2 sister. The said evidence of PW.3 victim clearly corroborates with
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 the evidence of PWs.2 and 1. PW.2 is the cousin sister of PW.3 also a minor girl deposed before the Court that on the date of incident, she witnessed the accused taking her sister to his house and after some time, she heard the screaming of her sister and she went to the house of accused and saw the accused committing rape on victim. By seeing her, accused ran away from the spot. Thereafter, she informed the same to PW.1 and in turn, PW.1 shifted the injured victim to the hospital for treatment. PW.1 also stated similarly by reiterating her averments in the complaint. She also stated that immediately after the incident, she along with neighbours shifted victim initially at the hospital at Ratkal thereafter, for higher treatment to the District Government Hospital, at Kalaburagi. On meticulous examination of these three witnesses, their evidence clearly corroborates with the medical evidence deposed by doctor PW.11. According to PW.11, on the date of incident, i.e,. on 24.11.2015 at about 4.58 p.m., victim was brought to the hospital
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 accompanied by PW.1 her mother and on examination of PW.3 victim, she found the following injuries:
1. Fresh active profuse bleeding from the vagina.
2. There was a complete fresh hymenal tear present.
3. Abrasion of the clitoris and the labia majora.
4. First degree perineal tear.
5. Mild abrasion in the perineal region.
6. Prolapse of anal mucosa seen which was red in colour.
7. No loose hair or any traces of semen in the vulval region.
8. Palpation: There was a tear of around 1 cm in the right lateral vaginal wall and 0.5 cm tear in the posterior vaginal wall with profuse bleeding.
28. PW.11 also deposed that the dentist assessed the age of the victim around 3 to 4 years. accordingly, she issued the medical certificate as per Ex.P10. She also gave her opinion that there are "recent signs of sexual intercourse with tear of perineal and vaginal parts". Hence, on conjoint reading of evidence of PWs.1 to 3 with the
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 evidence of PW.11 and Ex.P10 report issued by PW.11, the prosecution has proved that the victim PW.3 was subjected to sexual assault at the hands of accused.
29. Nevertheless, PWs.4 and 5 neighbours have also supported the case of the prosecution and they categorically deposed that soon after the incident, PW.1 informed them about the act committed by the accused and they also noticed bleeding from the private part of the victim-PW.3 and thereafter, they all shifted the victim to the hospital. Hence, the evidence of PWs.1 to 3 also corroborates with the evidence of PWs.4 and 5 neighbours. In addition to the evidence of doctor, the prosecution also examined PW.14, RFSL Officer and on careful perusal of Ex.P13, the same depicts that seminal stain was detected in item No.9 i.e,. inner garment of the accused. Hence, the medical evidence also corroborates with the scientific examination of the material objects seized on Item Nos.2, 3, 7, 8 and 9 belonging to the accused so also victim.
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30. Additionally, the prosecution also proved the spot mahazar drawn at the house of accused where the alleged act committed by him. The evidence of PW.6 corroborates to Ex.P2. insofar as age of the victim is concerned, PWs.1 to 3 and doctor PW.11, deposed that the victim was aged about 3 to 4 years at the time of incident. Ex.P10 also clearly discloses the said report was issued after conducting examination of the victim by the radiologist. In such circumstances, though the prosecution failed to produce any such certificate to prove the age of the victim or by not examining any witness to that effect, nevertheless, the age of the victim was not even seriously disputed by the defence during the course of trial.
31. Hence, on careful perusal of the entire evidence on record, we are of the view that the offence under Section 6 of POCSO Act so also under Section 376 (2)(i) of IPC is proved against accused by the prosecution beyond all reasonable doubt, as such, the learned Sessions Judge rightly convicted the accused for the charges levelled
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 against him and sentenced him for the offence punishable under Section 376(2)(i) of IPC, which does not call for interference by this Court.
32. Insofar as alternative contention of the learned counsel for the appellant that the learned Sessions Judge imposed maximum punishment of life imprisonment to the accused for the offence punishable under Section 376 (2)(i) of IPC, though minimum sentence prescribed in the Section is 10 years imprisonment is concerned, we made a query with learned Additional State Public Prosecutor about the conduct of the accused and the antecedents of the accused. Learned Additional State Public Prosecutor submitted that there are no such antecedents of the accused, except this case. The accused was 24 years at the time of incident. Further he has already suffered imprisonment of 8 years 7 months. It is submitted by the learned counsel for the appellant that he is the only bread earner of the family and he is having age old mother. Except him, nobody else to take care of his mother and in
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 such circumstance, lenience may be extended to him imposing minimum sentence of 10 years instead of life imprisonment.
33. Having considered the facts and circumstances of the case so also considering the age of the accused and since he has already undergone sentence of 8 years 7 months, we are of the view that the sentence imposed by the learned Sessions Judge may be modified to 10 years of imprisonment without giving any remission instead of life imprisonment by imposing reasonable fine amount. Accordingly, we are of the opinion that the impugned judgment deserves to be modified to the extent of imposing sentence.
34. Accordingly, we answer point No.1 raised above in the negative and point No.2 partly in the affirmative and proceed to pass the following:
ORDER i. The appeal filed by the accused is allowed in part.
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 ii. The judgment of conviction passed by the learned Sessions Judge in Special case (POCSO) No.7/2016 dated 17.06.2017 is confirmed however, the sentence imposed by the learned sessions judge for the offence punishable under Section 376(2)(i) is modified from life imprisonment to a period of 10 years without giving any remission.
iii. Accused shall also be liable to pay fine of Rs.5,00,000/-(Rupees Five Lakhs only). In default of payment of fine, he shall undergo rigorous imprisonment for a period of 02 years.
iv. The fine amount if deposited by the accused, the entire amount shall be kept in the Fixed Deposit in any Nationalised Bank and the same shall be paid to the victim on she attaining the age of majority on proper identification as per the provision of Section 357 of Cr.P.C.
v. If the fine amount is deposited by the accused, the learned Sessions Judge is requested to intimate PW.1-mother of the victim by passing appropriate order.
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NC: 2024:KHC-K:4535-DB CRL.A No.200050 of 2019 vi. Fine amount, if any, deposited by the accused shall be included in the fine amount imposed by this Court.
vii. Registry is directed to send the copy of this judgment along with Trial Court records to the concerned Trial Court.
Sd/-
JUDGE Sd/-
JUDGE SKS/VNR List No.: 1 Sl No.: 3 CT:VK