Karnataka High Court
Parashuram @ Pintu S/O Ashok Talwar vs The State Of Karnataka And Anr on 26 July, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-K:5405
CRL.A No. 200014 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO.200014 OF 2023 (374)
BETWEEN:
PARASHURAM @ PINTU
S/O ASHOK TALWAR
AGE. 23 YEARS,
OCC. DRIVING AND COOLI,
R/O. KAGGOD,
TQ. AND DIST. VIJAYAPURA-586127.
...APPELLANT
(BY SRI R. S. LAGALI, ADV.)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE SHO.,
Digitally INDI RURAL PS.,
signed by REP. BY THE ADDL. STATE PUBLIC
SHILPA R
TENIHALLI PROSECUTOR, HIGH COURT OF
Location:
HIGH KARNATAKA, KALABURAGI BENCH-585102.
COURT OF
KARNATAKA
2. VICTIM GIRL
REP. BY HER FATHER/ COMPLAINANT (PW-2),
SANGANNA @ SANGAPPA
S/O SAHADEV WALIKAR @ TALAWAR,
AGE. 40 YEARS,
OCCU. AGRIUCLTURE,
R/O. CHIKKA-BEVANOOR,
TQ. INDI, DIST. VIJAYAPURA-586209.
...RESPONDENTS
-2-
NC: 2024:KHC-K:5405
CRL.A No. 200014 of 2023
(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1
SRI A.M.NAGARAL, ADV. FOR R2)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION DATED 23.12.2022 AND ORDER OF CONVICTION
DATED 29.12.2022 PASSED BY THE ADDITIONAL SESSIONS
JUDGE FAST TRACK SPECIAL COURT - I AT VIJAYAPURA IN
SPL.CASE (POCSO) NO.8/2021 CONVICTING THE APPELLANT /
ACCUSED FOR THE OFFENCES PUNISHABLE U/S 376(2)(n) OF
IPC AND U/SEC. 6 OF POCSO ACT, 2012.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. Accused is in appeal before this Court under Section 374(2) of Cr.PC with a prayer to set aside the judgment and order of conviction dated 23.12.2022 and the order of sentence dated 29.12.2022 passed by the Court of Addl. Sessinos Judge, Fast Track Special Court-I, Vijayapura, in Spl. Case (POCSO) No.8/2021.
2. Heard the learned Counsel for the parties.
3. The appellant herein was charge-sheeted for the offences punishable under Section 376(2)(n) of IPC and Sections 4 and -3- NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 6 of the Protection of Children From Sexual Offences Act, 2012 in Crime No.208/2020, registered by Indi Police Station, Vijayapur. Appellant is the uncle's son of first informant, who is the father of the victim girl. Appellant had spent his childhood and grown in the house of first informant along with the victim girl. On 22.11.2020, the victim girl allegedly had informed the first informant and his wife that on 20.07.2020 at about 1.30 p.m. the appellant with an assurance to marry the victim girl had committed sexual assault on her against her wishes and thereafter, he had continued the said act on number of times. The first informant thereafter informed his relatives about the act committed by the appellant and subsequently, had approached the police. The police after investigation in the case had filed charge-sheet against the appellant and the Trial Court after framing the charges against the appellant, read over and explained the same to him. Since, the appellant pleaded not guilty and claimed to be tried, the prosecution in order to prove its charges against the appellant had examined 19 witnesses as PW.1 to PW.19 and had got marked 22 documents as Ex.P.1 to Ex.P.22. However, no defence evidence was led on behalf of -4- NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 the accused/appellant nor was any document marked in support of defence.
4. After hearing the arguments addressed on both sides, the Trial Court vide the impugned judgment and order convicted the appellant for the offences punishable under Section 376(2)(n) of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and for the offence punishable under Section 6 of the POCSO Act, the appellant was sentenced to undergo rigorous imprisonment for a period of 20 years and pay fine of Rs.20,00/- and in default, to undergo further imprisonment for a period of six months. Being aggrieved by the said judgment and order of conviction and sentence, the appellant is before this Court.
5. Learned Counsel for the appellant and the learned Counsel for respondent no.2, jointly submit that during the pendency of this appeal, the dispute between the parties has been amicably settled at the intervention of the elders and well-wishers of both the parties. After the order of sentence passed by the Trial Court was suspended and the appellant was enlarged on bail by this Court on 09.07.2024, the marriage of -5- NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 the appellant and the victim girl was performed on 22.07.2024 in the presence of elders and relatives of both the parties. Appellant and the victim girl are living as husband and wife after marriage and they intend to give a quietus to the dispute and live a happy married life. Therefore, the appellant and the victim have filed an application under Section 482 Cr.PC with a prayer to quash the entire proceedings in the case.
6. Per contra, learned HCGP has brought to the notice of this Court that since the offences for which the appellant has been convicted are non-compoundable offences, the prayer made in the application cannot be granted and that too in appellate stage.
7. The application filed by the appellant and respondent no.2 is taken on record. The same is signed by the respective parties who are identified by their learned Advocates. The application is also supported by the affidavit of the parties. In paragraphs 3 to 6 of the affidavit of the appellant, it is stated as under:
"3. It is submitted that, Complainant Sanganna @ Sangappa / PW-2 happens to be maternal uncle i.e. my grandfather's sister's son. Since my mother had passed -6- NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 away after my birth, I had grown along with the Complainant & his family. Myself & Victim both have grown up together. Since long myself and victim girl were in love with each other. I have not forced the victim at any point of time & it was voluntarily act of both of us. The Complainant lodged the complaint against me only when I upon ill-advice of my relatives refused to marry the victim. Moreover, at that time victim was minor so even for that reason marriage could not be performed. Even today I am in love with the victim girl and I intend to live with her all throughout my life.
4. I am told that after my conviction the victim situation had become miserable as there was social stigma attached against her and her marriage prospectus had completely gone. Even I realised my mistake and when the proposal of my marriage was told to me by my father I also agreed for it.
5. During the pendency of the appeal, I had approached this Hon'ble Court seeking suspension of sentence and release on bail. An affidavit was filed by my father stating that they are willing to get me and the victim married upon my release on bail.
6. On 09.07.2024 this Hon'ble Court was pleased to suspend the sentence of imprisonment & enlarged me on bail. After receipt of the interim order copy, on 22.07.2024 I under the aegis of elders, family members and friend married the victim girl with her consent and approval of her family members at Kaggod village. I have assured the victim as well as her family members -7- NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 that I would look after the victim with love & care. We are happily living together."
8. In paragraphs 3 to 7 of the affidavit of the victim, it is stated as under:
"3. It is submitted that, the Appellant is the son of PW-11 Ashok and said Ashok happens to be the maternal uncle of my father Sanganna @ Sangappa/PW-2. Since the mother of the Appellant had passed away after the birth of Appellant, he had grown along with us & our family. We both have grown up together and were in love with each other since long. I have voluntarily been involved with him since I was in love with him. Even after the incident there was no issue. My father was constrained to lodge a complaint only when he refused to marry me on ill advice of few our relatives. Moreover at that time I was minor so even for that reason marriage could not be performed.
4. Initially during the trial I had deposed against the Appellant. Further, since my parents were against the child & as I could not take care of my baby, I was constrained to give my baby to orphanage because my parents had felt that the Appellant had betrayed me. After the conviction of the Appellant by the Hon'ble trial Court the -8- NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 Appellant was taken into custody. My condition had become miserable as there a social stigma attached to me and nobody was coming forward to marry me as well inspite many attempt by parents and relatives. During that time the elders of both the families considering my pitiable situation and in the best interest of both us came forward & mediated between my parents & the parents of the Appellant and made them agree for the proposal of my marriage with Appellant. Even Appellant was enquired while he was in custody and he was also willing to marry me.
5. During the pendency of the appeal, the Appellant had approached this Hon'ble Court seeking suspension of sentence and release on bail. An affidavit was filed by the father of the Appellant stating that they are willing to get me and the Appellant married upon the appellant being enlarged on bail.
6. This Hon'ble Court was pleased to suspend the sentence & enlarge the Appellant on bail vide Order Dt. 09.07.2024. Immediately after the Appellant was enlarged on bail we have got married as per customs and rituals of our community under aegis elders, family and friends on 22.07.2024 at Kaggod village. I have fond hope that myself and the Appellant would live happily -9- NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 together. We have approached the orphanage where our baby was left and we are trying to get back our baby.
7. The Appellant along with his family members have assured me that they would look after me well. Even the marriage was performed in the presence of my parents and family members. Now with such development I pray that the Judgment & Order of Conviction against the Appellant may be quashed in view such developments."
9. The Hon'ble Supreme Court in the case of RAMGOPAL VS STATE OF MADHYA PRADESH - 2021 SCC OnLine SC 834, has observed that the High Court after considering peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 of the Code in aid to prevent abuse of the process of any Court and/or to secure the ends of justice. It was further observed that the High Court can quash non- compoundable offences after considering the nature of the offence and amicable settlement between the concerned parties. The High Court can evaluate the consequential effects of the offence and need to adopt a pragmatic approach to ensure that quashing does not paralyze the very object of the
- 10 -
NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 administration of criminal justice system. It was further observed that a restrictive construction of inherent powers under Section 482 of Cr.PC may lead to rigid or specious justice which may lead to grave injustice.
10. The Hon'ble Supreme Court in the case of RAMAWATAR VS. STATE OF MADHYA PRADESH - 2021 SCC ONLINE SC 966 having reiterated its earlier judgment passed in the Ramgopal's case supra, in paragraph No.13 has observed as follows:
"13. We, however, put a further caveat that the powers under Article 142 or under Section 482 Cr.P.C., are exercisable in post-conviction matters only where an appeal is pending before one or the other Judicial forum. This is on the premise that an order of conviction does not attain finality till the accused has exhausted his/her legal remedies and the finality is sub-judice before an appellate court. The pendency of legal proceedings, be that may before the final Court, is sine-qua-non to involve the superior court's plenary powers to do complete justice.
11. In the case of Aarush Jain vs. State of Karnataka and another (Crl.P. No.3710/2022 DD 09.09.2022) a coordinate bench of this Court has observed as follows:
- 11 -
NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 "xxxxxxxxxxx It is an admitted fact that the petitioner and the victim were close friends and were infatuated to each other. Several Courts as quoted hereinabove have considered the impact of hauling an under aged boy into the web of the provisions under the POCSO Act has clearly held that POCSO Act was not meant to punish the accused who were in love with the victims therein.
14. It is a known fact which bear consideration in the aforequoted judgments, in physiological parlance, that adolescence of a child is between 10 to 19 years and young age is said to be between 20 to 24 years. Therefore, adolescence is a continuum of development process in the life of a child metamorphosing into young age or an adult.
It would not be inapt to notice that young children or boys who have not yet reached the age of 18 years, many a time, without realizing or being ignorant of the consequences of their act which they perform in the frenzy of youth, emerge themselves as offenders under the provisions of POCSO Act and face serious consequences. Romantic love between a boy and a girl of the age of adolescence sometimes arising out of infatuations result in the boy embroiling himself into the vortex of the provisions of the POCSO Act.
- 12 -
NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023
15. The laudable object for which the POCSO Act was brought into effect cannot be forgotten, but that would not mean that it is meant to punish young children who would fall in love and commit such acts which would become punishable under the Act, a caveat, this Court is not painting every incidence of sexual activity of any kind that would become an offence under the POCSO Act, with the same brush, but there are cases of the kind, like the one at hand, where the adolescents have indulged in such acts due to lack of knowledge of consequence of law. xxxxxxxxxxxx".
12. In the case on hand, the appellant was aged about 21 years and the victim was aged more than 17 years as on the date of incident. The appellant and the victim are close relatives. As on the date of registration of the FIR, the victim was pregnant and she had given birth to a child subsequently. Now at the intervention of the elders and well-wishers of both the parties, the dispute has been settled and the marriage of the appellant and the victim has been performed.
13. Having regard to the peculiar facts and circumstances of the case and in the light of the judgment of the Hon'ble Surpeme Court in Ramgopal's case supra and Ramawatar's
- 13 -
NC: 2024:KHC-K:5405 CRL.A No. 200014 of 2023 case supra, I am of the opinion that this is a fit case wherein this Court is required to exercise its power under Section 482 Cr.PC in order to do complete justice to the parties. Accordingly, the following order:
14. Criminal Appeal is allowed. In exercise of the inherent powers under Section 482 of Cr.PC, the entire proceedings in this case stands quashed. The judgment and order of conviction dated 23.12.2022 and the order of sentence dated 29.12.2022 passed by the Court of Addl. Sessinos Judge, Fast Track Special Court-I at Vijayapura, in Spl. Case (POCSO) No.8/2021, are set aside. The appellant is acquitted of the charge sheeted offences. Bail bonds, if any, executed by the appellant stands cancelled. Fine amount, if any, deposited by the appellant shall be refunded to him.
Sd/-
(S.VISHWAJITH SHETTY) JUDGE KK/SN