Karnataka High Court
Ramamurthy vs State Of Karnataka on 31 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC:30333
CRL.A No. 1907 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 1907 OF 2017
BETWEEN:
1. RAMAMURTHY
S/O VENKATESHAPPA
ELECTRICIAN, 4TH WARD
AGED ABOUT 33 YEARS,
2ND CROSS, TANK BUND ROAD
CHINTAMANI
CHIKKABALLAPUR DISTRICT-563125
...APPELLANT
(BY SRI. S.Z.BAREED, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY CHINTAMANI TOWN POLICE
REPT BY STATE PUBLIC PROSECUTOR
Digitally HIGH COURT OF KARNATAKA
signed by
LAKSHMI T BANGALORE-01
Location: 2. SMT.HAMSA JYOTHI
High Court
of Karnataka W/O. LATE MUKUNDA
AGED ABOUT 45 YEARS
R/AT OPP. M.W.SCHOOL,
RAMA KRISHNAPPA HOUSE,
KR\ R BADARANE, CHINTAMANI TOWN
CHIKKABALAPURA-563125.
ALSO AT 8TH CROSS,
KASTURBA NAGAR
BENGALURU-560 026.
...RESPONDENTS
(BY SRI. RAHUL RAI K., HCGP FOR R1;
SRI. SHARATH J.M, ADVOCATE FOR R2)
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CRL.A No. 1907 of 2017
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
DATED 18.01.2017 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHIKKABALLAPURA (SITTING AT
CHINTAMANI) AND SPECIAL COURT FOR POCSO CASES, IN
SPL.S.C.NO.45/2016 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 376(2)(i) OF IPC AND SEC. 4 AND 8
OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,
2012.
THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ
ORAL JUDGMENT
In this appeal, accused has challenged his conviction and sentence passed by the Court of II Additional District and Sessions Judge, Chickballapur (sitting at Chintamani) and Special Court for POCSO cases in Spl.S.C.No.45/2016 wherein, the learned Sessions Judge vide Judgment and Order dated 18/20.01.2017 has convicted and sentenced him for the offence punishable under Section 376(2)(i) of IPC, Sections 4 and 8 of POCSO Act, 2012 (for short 'POCSO Act').
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NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 2(i). For the offence punishable under Section 376(2)(i) and Section 4 of POCSO Act, accused has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for 6 months.
2(ii). For the offence punishable under Section 8 of POCSO Act, accused has been sentenced to undergo simple imprisonment for a period of 3 years and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for 3 months.
3. It is the case of prosecution that, the victim child was aged about 10 years and between 2.5.2015 and 24.3.2016, accused committed sexual violence against her for about 8-10 times and thereby committed the charged offences under Section 376 of IPC and Sections 6 and 8 of POCSO Act.
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4. Before the trial Court, prosecution in all examined 14 witnesses and got marked 20 documents and MOs.1 to 9 to establish the charges levelled against the accused.
5. PW1 is the first informant. She was working as Counselor at Women's Special Treatment Unit, Government Hospital, Chickballapur. The victim child is examined as PW11 and her mother as PW12. PW13 is the Medical Officer who examined the victim and PW14 is the P.I., who registered the case, conducted investigation and filed charge sheet.
6. Apart from the evidence of the above witnesses, prosecution has also placed reliance on the evidence of PW8 who examined the accused and issued report, marked as Ex.P10. PW9, the Head Master of the School, where the victim studied, who issued the Study Certificate of the victim, wherein the Date of Birth of the victim is mentioned as 01.11.2006 and PWs.6 and 7- -5- NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 Radiologist and Dentist, who have issued Ex.P8 and Ex.P9 reports regarding the age of the victim. PW10 is the Head Constable who carried the articles to the FSL for examination.
7. PWs.2 and 3 are the panch witnesses to the spot mahazar-Ex.P3. PWs.4 and 5 are neighbours of the accused. However, PWs.2 to 5 have turned hostile and not supported the case of prosecution. Their evidence in no way help the prosecution case.
8. The age of the victim is not seriously disputed by the learned counsel for appellant. According to the prosecution, the victim was aged 10 years at the time of incident. As per Ex.P11 i.e, Study Certificate issued by PW9, the Date of Birth of the victim child is 01.11.2006. The incident is alleged to have taken place between 2.5.2015 and 24.03.2016. The age of the victim child was therefore proved to be below 12 years at the time of incident in question. Further, PW7 is the Dentist, who examined the victim child and issued Ex.P9, wherein he -6- NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 has opined that the victim child was aged about 10 years. Similarly, PW6 is the radiologist, who has issued report- Ex.P8, on examination of the victim child. He has estimated her age between 10 years and 14 years.
9. There is no serious cross-examination of PWs.7 and 9. The defence has not disputed the Date of Birth of the victim child mentioned in the certificate issued by PW9. The cumulative effect of evidence of PWs.6,7 and 9 would establish that the victim was aged below 12 years as on the date of incident.
10. Before discussing the evidence of the victim, it may be necessary to appreciate the evidence of PW12, her mother. A perusal of her evidence reveal that, initially, she was residing along with her children in Kadambavadi, Maharashtra. Her husband died due to HIV in the year 2007. She got acquainted with the accused through Facebook. Accused was having conversation with her over phone. Thereafter, the accused stating that he will look after her and her children, secured them to Chintamani on -7- NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 01.05.2015. After 2-3 days, he tied a turmeric thread and married her. Thereafter, she started residing with him in his house in Tank Bund Road, Chintamani. She has stated that since mother of the accused was torturing her, she wanted to return to her village. The accused requested her to stay back. Thereafter, they stayed in a rented house situated at Nareppanakunte, near M.W.A. School, Chintamani. She has stated that she was taking treatment for her HIV disease every month at ART Centre in Chickballapur. On 30.03.2016, she along with her daughter went to ART Centre where her daughter was subjected to counseling and at that time, she revealed about the incident of sexual violence committed on her before the Counselor. Her daughter was examined by Dr.Manjula (PW7). She suggested them to lodge a complaint and accordingly, PW1 the Counselor working at Special Unit of Counselling Centre, District Government Hospital, Chickballapura, enquired them and sent them to Police Station.
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11. Ex.P1 is the complaint. PW12 has identified her signature marked at Ex.P1(c). In her cross-examination, the defence has not disputed the signature of PW12 in Ex.P1.
12. PW1 is the Counselor, who enquired both the victim child as well as her mother. She has stated that in her presence the victim child as well as her mother signed the complaint, which is marked as Ex.P1.
13. The learned counsel for appellant has contended that, prosecution has not proved that the accused married PW12 and the victim child and her mother were residing along with the accused. It is his contention that according to prosecution, the incident took place between 2.5.2015 and 24.03.2016 when the victim child and her mother were staying in the house of the accused at Tank Bund Road, Chintamani, whereas both PWs.11 and 12 have stated that in the said house they stayed only for 1½ months. Thereafter, they stayed in a rented house at Nareppanakunte, near M.W.A. School, -9- NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 Chintamani. He contended that till 30.03.2016, the incident was not revealed by the victim child to her mother or any one else and even according to PW12, she was visiting the ART Centre in Chickaballapur every month for taking treatment, but the incident was not revealed to the Doctor. He contended that PW12 and her daughter i.e., victim child started staying in the house of the accused from 1.5.2015 and if any such incident as alleged by the prosecution had taken place and the victim child was threatened by the accused, then the victim would have informed the matter to her mother who was staying with her. Therefore, he contended that the evidence of victim- PWs.11 and 12 cannot be believed. He also contended that the trial Court has convicted the accused for the offence punishable under Section 376(2)(i) r/w 4 and 8 of POCSO Act whereas the ingredients to attract the said offence are not proved by the prosecution. He contended that the medical evidence does not support the case of prosecution that the accused has committed aggravated penetrative sexual assault on the minor victim.
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NC: 2024:KHC:30333 CRL.A No. 1907 of 2017
14. The learned High Court Government Pleader, on the other hand, has contended that the evidence of PWs.11 and 12 fully establishes the case of the prosecution and their evidence is further corroborated by the medical evidence, wherein the doctor has opined that non-penetrative sexual assault cannot be ruled out and the history furnished as per Ex.P17 is that sexual violence occurred around 8 times from 2.5.2015 to 24.3.2016. He contended that the trial Court having appreciated the entire evidence and material on record has rightly convicted the accused for the charged offences.
15. The victim child is examined as PW11. She has deposed that earlier they were living in Maharashtra. The accused used to talk to her mother over phone. He asked her mother to come to his place saying that he will look after them. She has further stated that the accused secured them from Chintamani bus station and took to his house situated in Tank Bund road, Chintamani and in their house, accused and his parents and his brother were
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NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 residing. For about 11 months they stayed in their house. Her brother took a house on rent. The accused used to beat her mother when they were staying in his house at Tank Bund road. Therefore, they all shifted to the rented house taken by her brother. She has further stated that in the said house there were 3 rooms. In the hall, she and the accused were sleeping. The accused used to call her to sleep with him. Her mother and his brother were sleeping in the hall. When she was sleeping, accused used to remove his pant and remove her underwear and keep his private part on her private part. He threatened her that he will kill her and her mother if the matter is disclosed to her mother. She has stated that in a period of 10 months, about 8 times the accused has committed the said act and when no one was in the house even in the morning he has committed similar act. Though the defence has cross-examined PW11, she has withstood her statement made in the chief examination. The said part of the evidence of PW11 has not been demolished in the cross-examination.
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16. In the case on hand, though a contention was raised that the marriage between the accused and PW12 is not proved, it is not necessary to discuss as to whether the accused has married PW12. This Court has to see as to whether the charges against the accused are established beyond reasonable doubt. The evidence of PWs.11 and 12 clearly establishes that PW12 was initially staying in Kadambhavadi, Kholapur, Maharastra. Her husband, who was infected with HIV disease died in the year 2007. Thereafter, she got acquainted with the accused through facebook and on his request, she came to Chintamani with her 2 children and started staying with him initially in his house situated at Tank Bund Road and thereafter, started staying with him along with her children in a rented house at Nareppanakunte, near M.W.A. School, Chintamani. PW12, who was also infected with HIV used to visit ART Centre in Chickballapur for treatment. On 30.03.2016, she went to ART Centre along with her daughter i.e., the victim, who was examined by the Doctor and during such examination, she revealed
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NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 before the doctor about the sexual assault committed on her by the accused. The evidence of PW11, which is corroborated by the evidence of PW12 is trustworthy.
17. The accused was charged for the offence punishable under Section 376 of IPC and Sections 6 and 8 of POCSO Act. A careful perusal of evidence of PWs.11 and 12 do not clearly establish that there was penetrative sexual assault on the victim. PW11 has deposed that the accused used to remove his pant and remove her underwear and keep his private part on her private part. The learned High Court Government Pleader has contended that as per medical report, the hymen of the victim child was absent and therefore, it establishes that the victim child was subjected to penetrative sexual assault. PW12, in her evidence, has stated that her daughter revealed to the Doctor that the accused used to remove her underwear and keep his private part on her private part and also rub her chest and her private part with his hand.
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18. PW13 is the Doctor who examined the victim on 30.03.2016. She has collected the vaginal swab, Vulval Swab, Vulval smear as well as innerware and pant of the victim, which were sent to FSL for examination by the I.O. On receipt of the FSL report, PW13 has given her final opinion. Her reports are marked as Exs.P16 to 18. As per Ex.P18-final opinion, she has opined that there are no signs of penetrative sexual intercourse. She has further opined that non-penetrative sexual intercourse cannot be ruled out. As per the history furnished, according to Ex.P16, the accused was sleeping with the victim and doing sexual violence such as touching the vagina with penis. There is no mention of penetration, insertion of finger etc. As per PW13, there are no signs of penetrative sexual intercourse and non-penetrative sexual violence cannot be ruled out. Hence, it cannot be held that the ingredients of Section 376 or Section 3 of the POCSO Act, punishable under Section 4 of the Act are established beyond reasonable doubt. From the evidence and material on record, it can be seen that the accused has committed
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NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 sexual assault, as defined under Section 7 of the POCSO Act. The victim child was proved to be aged below 12 years at the time of incident and hence, in view of Section 9(m) of the POCSO Act, the accused has committed aggravated sexual assault. The said offence is punishable under Section 10 of the POCSO Act wherein, imprisonment prescribed shall not be less than 5 years but which may extend to 7 years and shall also liable to fine.
19. The trial Court has convicted the accused even under Section 8 of POCSO Act, apart from Sec.376(2)(i) of IPC and Section 4 of the POCSO Act. Since the victim is aged below 12 years, the offence which would attract is one under Sections 9 and 10 of the POCSO Act.
20. The accused was arrested on 30.03.2016 and since then he is in custody. He has undergone imprisonment for more than 8 years. The maximum sentence of imprisonment prescribed under Section 10 of the POCSO Act is 7 years. Hence, the following:
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CRL.A No. 1907 of 2017
ORDER
i. Appeal is allowed in part.
ii. The Judgment and Order dated
18/20.1.2017 passed by the Court of II Additional District and Sessions Judge, Chickballapur (sitting at Chintamani) and Special Court for POCSO cases in Spl.S.C.No.45/2016, convicting and sentencing the appellant/accused for the offence punishable under Section 376(2)(i) of IPC and Sections 4 and 8 of POCSO Act, is hereby set aside.
iii. Appellant/accused is convicted for the offence under Section 9(m) punishable under Section 10 of the POCSO Act, 2012. He is sentenced to undergo R.I. for a period 7 years and to pay a fine of Rs.10,000/- in
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NC: 2024:KHC:30333 CRL.A No. 1907 of 2017 default of payment of fine, he shall undergo S.I. for a period of 6 months.
iv. If the appellant has already undergone imprisonment of 7 years, he shall be released, if not required in any other case.
Sd/-
(MOHAMMAD NAWAZ) JUDGE TL List No.: 1 Sl No.: 28