Anand vs Stae By Puttenahalli Police ...
2021 Latest Caselaw 5146 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1ST DAY OF DECEMBER, 2021

                       BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.764 OF 2018

BETWEEN

ANAND
S/O SHIVASWAMY
AGED ABOUT 28 YEARS
R/AT KARDIGUDDA
NEAR WATER TANK
KANAKAPURA TOWN
RAMANAGARA DISTRICT - 562 123               ...   APPELLANT

[BY SRI M.R.NANJUNDA GOWDA, ADVOCATE]

AND

STATE BY PUTTENAHALLI POLICE STATION
REPRESENTED BY STATE PUBLIC
PROSECUTOR HIGH COURT OF KARNATAKA
HIGH COURT COMPLEX
BENGALURU - 560 001                     ...   RESPONDENT

[BY SMT. LEENA C.SHIVAPURMATH, HCGP]

                         ***

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 26.02.2018 PASSED BY
THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN SPL.C.C. NO.292/2017-CONVICTING THE
APPELLANT/ACCUSED FOR OFFENCES P/U/SECTIONS 366, 376
AND 506 OF IPC AND SECTION 5(l) R/W 6 OF THE POCSO ACT.
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     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is preferred by the accused challenging the

judgment and order dated 26.02.2018 passed by the Court of

LIII Additional City Civil and Sessions Judge, Bengaluru in

Special C.C. No.292/2017, convicting and sentencing him for

offence punishable under Sections 366 and 376 of IPC and

Sections 5(l) r/w 6 of the Protection of Children from Sexual

Offences Act, 2012 [hereinafter referred to as 'POCSO Act' for

short].

2. Heard the learned counsel for appellant, learned

High Court Government Pleader for respondent/State and

perused the evidence and material on record.

3. Brief facts of the prosecution case are that,

accused got acquainted with complainant's minor daughter

(PW.1), while she was staying in her grand mother's house in

Kanakapura and pursuing her studies. About 2 to 3 months

prior, he secured her near Kabbalamma temple and from

there took her to a lodge and committed forcible penetrative

sexual assault on her, in spite of her assistance, telling her

that he will marry her and he is in love with her. Later

threatened her not to disclose the incident to any body.

Thereafter started blackmailing her saying that he will inform

her family members about the incident, if she did not

cooperate. Again on 10.03.2017 at about 5.30 p.m., he

secured her near Jaraganahalli park, 6th Stage, J.P Nagar and

from there abducted her on a two wheeler to his house

situated near water tank, Karadigudda, Kanakapura Taluk and

committed forcible penetrative sexual assault on her and

thereby committed the charged offence.

4. Charges were framed against the

accused/appellant for offences punishable under Sections 366,

376 of IPC and Section 5(l) read with 6 of the POCSO Act and

Section 506 of IPC.

5. To establish the guilt of the accused, the

prosecution got examined 13 witnesses and got marked

Exs.P1 to P11 and MO's 1 and 2.

6. The learned Sessions Judge vide impugned

judgment and order convicted and sentenced the accused for

the charged offence.

7. At the outset, it is pertinent to see that the trial

Court has passed sentence against the appellant for both the

offences under Sections 376 of IPC and Section 5(l) read with

6 of the POCSO Act.

8. Section 42 of the POCSO Act provides for alternate

punishment, wherein, if the offender is found guilty of an

offence under the said Act along with similar offence under the

Indian Penal Code, which are mentioned therein, he shall be

liable to punishment either under the POCSO Act or under IPC,

wherein, the punishment provided is greater in decree. Since

the trial Court has sentenced the appellant to undergo R.I for

a period of 10 years for the offence punishable under Section

6 of the POCSO Act, then once again sentencing him to

undergo S.I for a period of 7 years for offence under Section

376 of IPC is uncalled for.

9. According to prosecution, the victim was a minor

aged below 18 years at the time of commission of offence. In

order to establish her age, the prosecution has got marked

Ex.P9 namely the study certificate/age certificate issued by

the principal Government Pre-University College, Jayanagar,

Bengaluru. In Ex.P9 the date of birth of the victim is

mentioned as 26.06.1999. If the said date is taken into

consideration, the victim was aged about 17 years 9 months

as on the date of commission of offence.

10. Ex.P9 is marked through the Investigation Officer-

PW.11. In his evidence, PW.11 has stated that on 09.06.2017

he obtained the document regarding date of birth of the

victim. It is relevant to see that as per Ex.P9 issued by the

principal of the college, the date of birth was mentioned as per

the records maintained in the said college. The said records

on the basis of which the certificate-Ex.P9 was issued has not

been produced or marked in evidence. The principal who has

issued Ex.P9 is also not examined by the prosecution. Except

Ex.P9, the prosecution has not produced any other documents

such as the date of birth certificate or SSLC Marks card to

establish the exact age of the victim. Further, there is no

medical examination conducted to ascertain the age of the

victim. In that view of the matter it cannot be said that the

prosecution has been able to establish beyond reasonable

doubt that the victim was a minor at the time of incident in

question.

11. In the instant case, the victim who is examined as

PW.1 has not supported the case of prosecution and she has

totally turned hostile. The remaining evidence is that of her

parents namely PWs.2 and 3, the evidence of PWs.4 and 5 and

the medical evidence.

12. PWs.2 and 3 are the parents of the victim. PW.2,

the father of the victim has set the law into motion by lodging

a missing complaint on 11.03.2017 as per Ex.P5. In the said

complaint he has stated that his daughter aged about 16

years 9 months studying in II PUC at Yadiyuru Government

College on 10.03.2017 at about 6.00 p.m., was watching TV

and therefore, he reprimanded her saying that why she is

always watching TV. At that time she went out of the house

and did not return. Hence, he lodged the said complaint

suspecting that the appellant might have kidnapped his

daughter. On the basis of the said complaint a case in Crime

No.110/2017 was registered at Puttenahalli Police Station

against the accused/appellant under Section 363 of IPC.

13. PW.2 in his evidence has deposed that after

lodging the complaint, his daughter returned to his house and

on enquiry she revealed that accused asked her to come near

Jaraganahali Park and from there he by inducing her took her

to Kabbalamma temple and from there took her to a lodge and

in the said lodge he committed rape on her.

14. PW.3-mother of the victim has deposed that on

10.03.2017 at about 6.00 p.m., her daughter went out of the

house and did not return and therefore they searched for her

and on the next day her husband lodged the complaint as per

Ex.P5. Thereafter on 13.03.2017, her daughter returned to the

house. On enquiry she informed that the accused called her

near Jaraganahalli park and from there took her to

Karadigudda in Kanakapura and spoiled her. She has further

stated that the accused took her daughter to Kabbalamma

temple and from there to a lodge and committed rape on her

and thereafter threatened her with dire consequences.

15. The learned counsel for appellant has vehemently

contended that both PWs.2 and 3 are hearsay witnesses and

there are contradictions in their evidence. He contends, when

the victim herself has denied the case of prosecution then the

evidence of PWs.2 and 3 cannot be accepted as gospel truth.

16. From the evidence of PW.2 and the cross-

examination of PW.3, it can be gathered that while the victim

was watching TV at about 6.00 p.m., on 10.03.2017, she was

scolded by PW.2 as to why she is always watching TV, at that

time she switched off the TV and went out of the house and

did not return to the house. PW.2 lodged the complaint as per

Ex.P5 suspecting that the accused might have kidnapped his

daughter. According to him after lodging the complaint the

victim returned to the house and when he enquired with her,

she disclosed about the incident.

17. According to PW.2, victim on enquiry revealed that

the accused by inducing her took her near the temple and

from there took her to a lodge and committed rape on her.

He has not stated that the accused threatened the victim with

dire consequences not to disclose the incident to others.

Whereas, according to PW.3 the accused threatened her with

dire consequences.

18. According to PW.3, after lodging of complaint, on

13.03.2017, the victim returned to her house. However

PW.11, the Investigation Officer has stated that he took over

investigation on 11.03.2017 from PW.13 and on the same day

the victim along with her parents appeared before the Police

Station. Hence, a doubt arises as to whether the victim was

along with accused till 13.03.2017 as stated by PW.3 in her

evidence.

19. The prosecution has examined PWs.4 and 5 to

establish that the accused kidnapped the victim. According to

prosecution the victim was secured near Kabbalamma temple

by the accused and from there he took her on a two wheeler

to a lodge, wherein, he committed sexual assault on her.

PW.4 has turned hostile and his evidence is not helpful to the

prosecution. PW.5 has deposed that when he was drinking tea

near Jaraganahalli Park he saw accused No.1 and PW.1 near

the park. On seeing him, they immediately went on a two

wheeler. After 2-3 days PW.2 informed about missing of his

daughter.

20. From the evidence on record it can be gathered

that on 10.03.2017 when PW.2 scolded the victim for

watching TV, she herself went out of the house. Further,

according to PW.5 he saw the victim as well as the accused

near the park and on seeing him they hurriedly went on a two

wheeler from there. From the said evidence it cannot be

concluded that the accused has either kidnapped the victim or

it is he who secured her near the park.

21. According to PW.12, manager of the lodge, the

accused came along with a girl to his lodge on 10.03.2017 and

took room No.7 in the said lodge. Thereafter, the police came

near the lodge along with the girl saying that the accused has

committed rape on her and also showed the photograph of the

accused. It is relevant to see that the prosecution has not

produced any material to show that in fact the accused had

booked any room in the said lodge. Neither the register of the

lodge or any receipt has been seized by the police. In the

cross-examination PW.12 has admitted that they will issue

receipt to the customers who stays in the lodge and he has

issued receipt to the accused as well. It is also admitted that

they will enter the name of the customers in a ledger.

However, no such receipt or ledger has been either seized or

produced by the prosecution. Both P.Ws.5 and 8 have denied

that the Police have prepared a mahazar as per Ex.P1 in

Kabbalamma lodge.

22. The learned High Court Government Pleader

contends that the victim has given her statement under

Section 164 of Cr.P.C. and the said statement is corroborated

by the evidence of P.Ws.2, 3 and 5 and the medical evidence.

Therefore, she contends that the trial Court was justified in

convicting the accused relying on Section 29 of the POCSO

Act.

23. In so far as Section 164 of Cr.P.C. is concerned, the

statement itself is not a substantive piece of evidence. The

learned counsel for the appellant has relied on the decision of

the Hon'ble Apex Court in Ram Kishan Singh Vs. Harmit

Kaur and Anr. reported in 1972 Crl.L.J. 267. It is held

therein that the statement under Section 164 of Cr.P.C. is not

substantive evidence. It can be used to corroborate or

contradict the statement of a witness. In the instant case, the

victim who is examined as P.W.1 has not supported the case

of prosecution and she has completely denied the allegations

made against the accused. Hence, the statement under

Section 164 of Cr.P.C. itself cannot be relied upon, as the said

statement can be used to corroborate the statement of the

witness or to contradict the witness, as held by the Hon'ble

Apex Court.

24. The trial Court has relied on Section 29 of the

POCSO Act and observed that the said provision indicates that

the burden is on the accused to prove his innocence and it is

not for the prosecution to prove the guilt against the accused.

It is further observed that since the accused has been charged

not only for the offence punishable under the POCSO Act, but

also under the IPC provision, the prosecution has to prove the

guilt against the accused initially.

Section 29 of the POCSO Act reads as follows:

"Presumption as to certain offences:

Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."

It is well settled that Section 29 of the POCSO Act does not

relieve the prosecution from proving its case. However, it

lessens its burden. It does not affect the obligation to produce

admissible evidence and to prove the essential and

fundamental facts. The learned counsel for appellant has

relied on a decision in the case of Subrata Biswas and Anr.

Vs. State [2019 SCC CAL 1815], wherein it is held that the

statutory presumption applies when a person is prosecuted for

committing certain offence under the Act and a reverse

burden is imposed on the accused to prove the contrary. The

word 'is prosecuted' in the said provision does not mean that

the prosecution has no role to play in establishing and/or

probablising primary facts constituting the offence by leading

any admissible evidence.

25. In the instant case, P.W.1, the victim has not

supported the prosecution case. She has denied the contents

of Ex.P4, the statement recorded by the Police as well as the

contents of Ex.P2, the statement recorded under Section 164

of Cr.P.C. PWs.2 and 3 are hearsay witnesses. There are

contradictions in the evidence of P.Ws.2 and 3. The evidence

adduced by PWs.2 and 3 therefore, is not sufficient to convict

the accused, since the victim herself has denied the

allegations made against the accused.

26. P.W.10, the Medical Officer who conducted medical

examination on the victim girl has stated that on examination,

she did not find any injury on the private part and there are

no recent signs of sexual intercourse. As per prosecution,

immediately on return of the victim and lodging of the

complaint, she was subjected for medical examination and

therefore, the case of the prosecution that the victim was

subjected to penetrative sexual assault by the accused is not

established by medical evidence.

27. For the above reasons, the trial Court was not

proper in convicting the accused by placing reliance on the

testimony of P.Ws.2, 3, 5 and 8, observing that the accused

failed to discharge his burden as required under Section 29 of

the POCSO Act and therefore, failed to establish before the

Court that he is an innocent man. It is further relevant to

make a mention that the trial Court has taken into

consideration the Judgment relied upon by the defnece in the

case of K.P.Thimmappa Gowda Vs. State of Karnataka,

reported in 2011 Crl.L.J. 2591, wherein the Hon'ble Apex

Court has observed that sex with women above 16 years of

age with her consent is not rape. The trial Court was not

proper in observing that 'by relying upon the said citation,

probably accused admits that he had sexual intercourse with

the victim many occasions with consent of the victim'.

28. The entire approach of the trial court in convicting

the accused is therefore, not in accordance with law. The

evidence and material on record are not sufficient to hold that

the prosecution has been able to establish the guilt of the

accused for the charged offences.

29. For the aforesaid reasons and the discussion made

supra, the appeal deserves to be allowed. Hence, the

following:

ORDER

Appeal is allowed.

The Judgment and Order of conviction and sentence

dated 26.02.2018 passed in Spl.C.C. No.292/2017 on the file

of the Court of LIII Addl. City Civil and Sessions Judge,

Bengaluru, against the accused/appellant for offences under

Sections 366, 376 of IPC r/w Sections 5(l) r/w 6 of the POCSO

Act and Section 506 of IPC is hereby set aside. The

accused/appellant is acquitted of the offences for which he has

been convicted and sentenced by the trial Court. He shall be

set at liberty, if not required in any other case.

Fine amount if deposited, shall be refunded to the

accused/appellant.

Sd/-

JUDGE

HB & Ksm*