H. M. Naveen vs State Of Karnataka
2021 Latest Caselaw 5434 Kant

                              1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF DECEMBER, 2021

                        BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

            CRIMINAL APPEAL NO.294 OF 2019

BETWEEN:

H. M. NAVEEN
@ NAVEEN KUMAR,
S/O. MURUGESHAPPA,
AGED ABOUT 22 YEARS,
R/AT. M. HOSAHALLI,
MASTHI HOBALI, MALUR TALUK,
KOLAR DISTRICT - 563 130.                      ...   APPELLANT

[BY SRI. MOHAN KUMAR D., ADVOCATE]

AND:

STATE OF KARNATAKA
BY MASTHI POLICE STATION,
KOLAR
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.                     ...     RESPONDENT

[BY SMT. RASHMI JADHAV, HCGP]

                          ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 18.12.2018 PASSED BY THE
II ADDITIONAL SESSIONS JUDGE, KOLAR IN SPL.C.NO.56/2016 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR OFFENCE P/U/S
363 AND 376 OF IPC AND 6 OF POCSO ACT, ETC.

     THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
                                  2




                             JUDGMENT

This appeal is preferred by accused No.1,

challenging his conviction and sentence passed by the

Court of II Additional Sessions Judge at Kolar [Special

Court for POCSO] in S.C. No.56/2016, whereby the

learned Sessions Judge by Judgment and Order dated

18.12.2018, convicted him for offences punishable under

Sections 363, 376 of IPC and Section 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 and

the learned High Court Government Pleader for

respondent-State and perused the evidence and material

on record.

3. The charges were framed against accused

No.1 for offence punishable under Sections 366-A, 376 of

IPC., Section 6 of the POCSO Act and against accused

Nos.2 to 4 for offence punishable under Sections 504 and

506 read with 34 of IPC.

4. To establish the case of prosecution, in all 14

witnesses were examined as P.Ws.1 to 14 and Exs.P1 to

19 and M.O's.1 to 12 were marked in evidence. The

defence got marked Exs.D1 to 6.

5. The Trial Court after appreciating the oral and

documentary evidence on record, acquitted accused

Nos.2 to 4 under Sections 504 and 506 read with Section

34 of IPC and convicted and sentenced accused No.1 for

offence punishable under Sections 363 and 376 of IPC

and Section 6 of the POCSO Act.

6. The case of the prosecution is as under:

On 26.12.2014, at about 1.00 p.m., when PW-1,

victim girl, aged about 17 years was in front of Gowtham

High School, Hanumanthanagar, the appellant/accused

No.1 by saying that her father is being admitted at S.N.R

Hospital, Kolar and her mother is calling her, kidnapped

her in a TVS Star City two wheeler bearing registration

No.KA-42-E-5300, with intent that she may be forced or

seduced to illicit intercourse and took her to a eucalyptus

grove near M.Hosahalli village and dragged her inside the

eucalyptus grove and committed rape on her and then

kept her in his hut. It is the further case of the

prosecution that on 22.02.2015, at 4.30 p.m., at

M.Hosahalli village, accused Nos.2 to 4 went near the

house of the victim - CW-1 and abused her and also

intentionally insulted her in filthy language, provoked

and caused breach of public peace and also committed

criminal intimidation by posing life threat to her.

7. According to prosecution, the victim was a

minor at the time of incident. The prosecution has got

marked Ex-P4, certificate issued by PW-4 - Headmaster

of Gautham High School. In Ex-P4, the date of birth of

the victim is mentioned as 05.04.1998. The prosecution

has also got marked Ex-P6 issued by PW-6, the doctor at

SNR hospital, who after examining the victim has

estimated her age as between 15 to 17 years.

8. It is the contention of the learned counsel for

the appellant that, the victim was not a minor at the

time of incident. On the other hand, she was aged more

than 18 years. He would contend that prosecution has

not placed any cogent evidence such as date of birth

certificate or SSLC marks card to prove the age of the

victim. He contends that in support of Ex-P4 there are

no documents furnished by the prosecution such as

school register etc., and even accepting Ex-P6, some

margin has to be given to the age estimated by PW.6.

9. In Ex-P4 issued by PW-4, the Headmaster of

the school where the victim was studying, the date of

birth of the victim is mentioned as 05.04.1998. If the

said date is taken into consideration, the victim was aged

about 16 years 8 months as on the date of incident and

therefore, she was a minor. It is true that the

prosecution has not collected the school register on the

basis of which PW-4 has issued Ex-P4. However, as per

the evidence of PW-6, the victim was brought before him

for estimation of her age, on 27.02.2015 and after

examination, her age was estimated as between 15 and

17 years. In the cross-examination, PW-6 has denied

the suggestion that the victim was aged 18 years and

also denied that he has mentioned her age as 15 to 17

years on the pressure of the police.

10. According to prosecution, the victim girl was

studying in 10th standard at the time of incident. The

same is not disputed by the defence. From the evidence

of PW-6, who issued Ex-P6, prosecution has been able

to prove that the victim's age was between 15 to 17

years. In the cross-examination of PW-6, nothing is

elicited so as to disbelieve his evidence regarding the age

of the victim. It is well settled that if documents such as

birth certificate, SSLC marks card or equivalent

certificate are not available, then the age can be

determined by subjecting the victim to medical

examination. In the instant case, this court is of the

considered view that prosecution has been able to

establish that the victim was aged between 15 to 17

years at the time of incident and therefore, she was a

minor.

11. The specific case of the prosecution is that on

26.12.2014, at about 1.00 p.m., when the victim was in

her school, the appellant/accused No.1 went near her

school by saying that her father is being admitted in the

hospital and took her in his two wheeler and thereafter,

dragged her inside the eucalyptus grove and committed

aggravated penetrative sexual assault on her.

12. The prosecution is mainly relying on the

evidence of PW-1, PW-3 and the medical evidence to

establish that the appellant/accused No.1 kidnapped the

victim and then took her inside a eucalyptus grove and

committed aggravated penetrative sexual assault on her.

13. The learned counsel for the appellant has

contended that there is an inordinate delay of two

months in lodging the complaint and there are material

contradictions in the evidence of Pw-1 and therefore, her

evidence is not trustworthy. He contends that the

evidence of the victim is not supported by medical

evidence. It is his contention that when the testimony of

PW-1 is not reliable and is not supported by any other

evidence, then the conviction is unsustainable.

14. The incident has taken place on 26.12.2014,

at about 1.00 p.m. The FIR is lodged on 26.02.2015.

There is a delay of two months in lodging the FIR. Ex-P1

is the complaint lodged by PW1. She has stated that,

believing the words of the appellant/accused No.1, she

went along with him in his two wheeler and on the way

he stopped the two wheeler near a eucalyptus grove and

held her hand and dragged her inside the eucalyptus

grove. Further, by saying that he is her cousin and he is

in love with her since one year and that he is going to

marry her, committed forcible sexual intercourse.

Thereafter, he threatened her not to disclose the incident

to others. Then she was kept in a hut till 9.00 p.m. Her

mother, uncle and one Papanna came in search of her.

She disclosed the entire incident to them. It is further

stated that the matter was informed to the village elders

and they all waited thinking that justice will be done.

However, on 22.02.2015, at about 4.30 p.m., the

parents and uncle of appellant/accused No.1 came near

her house and abused and forced her to withdraw the

allegations and threatened with dire consequences etc.

Even in her evidence, PW-1 has stated that after she was

taken back to her house, the uncle of appellant/accused

No.1 informed them that they will conduct a panchyat.

However, on 22.02.2015 at about 4.30 p.m., they came

to her house and gave life threat.

15. One cannot lose sight of the fact that the

victim was a minor at the time of incident and in a case

of this nature, normally the victim or her parents will

hesitate to lodge a complaint immediately. Both in Ex-P1

as well as in the evidence of PW-1, it is stated that after

the incident, uncle of appellant/accused No.1 assured

that they will conduct a panchayat and later, since no

such panchayat was conducted, the complaint was

lodged. Hence merely because there is delay in lodging

the complaint, the evidence of the prosecutrix cannot be

disbelieved.

16. It is the contention of the learned counsel for

the appellant that the evidence of the victim is not

reliable with regard to the incident in question, because

her evidence is not supported by medical evidence. It is

also pointed out that in the cross examination, Ex-D1 to

Ex-D5, the photos were marked in which both the victim

and the appellant are seen along with their relatives

wearing garlands. He contends that the appellant has

married the victim in the presence of her relatives in

front of a temple and the same has been suppressed by

the prosecution.

17. PW-1 has stated in her cross-examination that

by threatening and by force, her marriage was

performed and photos were taken. Merely because,

some photos are taken showing victim and the

appellant/accused No.1 wearing garlands, that itself is

not sufficient to hold that there was marriage or that the

evidence of the victim is not trustworthy.

18. P.W.7 is the Lady Medical Officer who

examined the victim on 26.02.2015. She has issued

Exs.P8, 10 and 11. The learned counsel for the appellant

has contended that according to P.W.1, her uniform was

torn and her cloths were stained and she sustained

injuries to her hands etc. But as per the opinions

furnished by P.W.7, there is absolutely no injury said to

have been sustained by the victim and therefore the

evidence of the victim that she was dragged inside the

Eucalyptus grove and subjected to forcible sexual

intercourse cannot be believed. He has contended that

as per Ex.P10-FSL Report, seminal stains are not

detected in the articles sent to FSL. He therefore

contends that the medical evidence does not corroborate

the evidence of P.W.1.

19. Admittedly, the victim girl was examined after

2 months from the date of commission of the offence.

P.W.7 has stated in her chief-examination that she did

not find any injury. However, on the basis of clinical

examination, she has opined as per Ex.P11 that

possibility of genital assault cannot be ruled out.

20. In this case, the defence has failed to elicit

from the mouth of P.W.1-victim that the incident of

sexual assault on her has not taken place. Evidence of

P.W.1 is believable. The nature of evidence require to

lend assurance to the testimony of the prosecutrix most

necessarily depend on the facts and circumstances of

each case. It cannot be said that the evidence of

prosecutrix cannot be accepted unless it is corroborated

by material particulars. Evidence of P.W.7 and the Final

Opinion marked as Ex.P11 do indicate that there is

possibility of genital assault on the victim. Further, the

prosecution has got examined P.W.3-uncle of P.W.1. He

has deposed that in the year 2014 the victim girl was

studying in X Standard and on a particular day, she went

to school at about 9.00 a.m. and did not return even

after 7.00 p.m. and therefore they went in search of her.

They were informed by other students that accused No.1

took her at about 1.30 - 2.00 O'clock in the afternoon

from the school. He along with the victim's mother went

near the house of the accused. They came to know that

he has detained the victim in the hut. Then, they

brought her back to the house and on enquiry, she

disclosed about the incident to them. He has stated that

the victim girl informed them that the accused

threatened her with dire consequences and committed

sexual intercourse on her. Then, Papanna [accused

No.4] requested them not to lodge any complaint and

told that they will perform victim's marriage with accused

No.1, even though he informed them that the victim has

not completed 18 years. Then talks were held and they

took some photos and later accused Nos.2 and 3 came

near their house abused them etc.

21. The evidence of P.W.3 corroborates the

evidence of P.W.1 regarding the incident in question.

Nothing is elicited in his cross-examination so as to

disbelieve his evidence.

22. From the above discussion, it can be held that

the prosecution has been able to establish that on

26.12.2014 at about 1.00 p.m., the appellant/accused

No.1 kidnapped the victim, a minor girl aged below 18

years and committed penetrative sexual assault on her.

23. The trial Court has convicted the appellant for

offence punishable under Section 376 of IPC as well as

Section 6 of the POCSO Act. For offence under Section

376 of IPC., the appellant has been sentenced to

undergo simple imprisonment for a period of 7 yeas with

a fine of `5,000/- and in default of payment of fine, to

undergo further imprisonment of one month. For the

offence under Section 6 of the POCSO Act, he has been

sentenced to undergo simple imprisonment for a period

of 10 years with a fine of `5,000/- and in default of

payment of fine, to undergo further imprisonment of one

month.

24. In view of Section 42 of the POCSO Act,

accused is liable for punishment either under the said Act

or under IPC., which provides for punishment which is

greater in degree. Hence, the sentence imposed for both

the offences i.e., under Section 376 of IPC and Section 6

of the POCSO Act is not proper.

25. It is pertinent to see that according to

prosecution, the appellant/accused No.1 committed an

offence punishable under Section 6 the POCSO Act. To

attract Section 6, the prosecution has to establish that

the accused has committed aggravated penetrative

sexual assault as defined under Section 5 of the POCSO

Act. Unless the prosecution establishes that the

appellant/accused No.1 has committed any of the

offence mentioned in Section 5 of the POCSO Act, then it

cannot be held that he has committed aggravated

penetrative sexual assault against the victim and he

cannot be convicted and sentenced for an offence under

Section 6 of the POCSO Act.

26. The specific case of the prosecution is that the

appellant/accused No.1 came near the school of the

victim at about 1.00 p.m. on 26.12.2014 and saying that

her father is admitted to hospital and her mother is

calling, thus by inducing her, took her in his motorcycle

to a eucalyptus grove and committed forcible sexual

intercourse on her.

27. The charge framed under Section 6 of the

POCSO Act reads as under:

"On the aforesaid date, time and place, you accused No.1 having taken away CW.1/the victim girl aged less than 18 years, committed aggravated penetrative sexual assault on her, and thereby committed an offence punishable U/s 6 of

the POCSO Act, 2012, within the cognizance of this Designated Sessions Court".

28. Neither in the charge-sheet filed by the Police

nor in the charge framed it is mentioned that the

appellant has committed an act which would attract

Section 5 of the POCSO Act. A plain reading of the

above charge does not indicate that there was any

offence committed under the provisions of Section 5 of

the POCSO Act. Section 6 of the POCSO Act is a penal

provision provided for violation of Section 5 of the Act.

29. The learned High Court Government Pleader

would contend that the appellant/accused No.1 is none

other than the cousin of the victim and therefore, Section

5(n) of the POCSO Act would attract in the present case.

She therefore contends that the charge framed under

Section 6 of the POCSO Act and the punishment imposed

for the said offence is proper. She further contends that

from the cross-examination of P.W.1, it can be seen that

the appellant is victim's aunt's son and therefore, the

offence committed by him falls under Section 5(n) of the

POCSO Act, which is punishable under Section 6 of the

POCSO Act.

30. When the prosecution itself has not alleged

that the appellant/accused No.1 being a cousin or

relative of the victim, kidnapped her and committed

sexual intercourse on her and when no such charge is

framed, then it cannot be said that the conviction under

Section 6 of the POCSO Act is sustainable in law. When

the punishment provided for certain offence is greater in

degree, then, there must be specific charge framed

under the relevant provision. In the case on hand no

such charge has been framed and therefore, defence of

the accused has been prejudiced. Further, there is no

such question put to the accused while examining him

under Section 313 of Cr.P.C. Hence, the conviction and

sentence passed for the offence punishable under section

6 of the POCSO Act is liable to be set aside.

31. In the case on hand, having held that the

victim was a minor at the time of commission of offence

and the appellant has committed penetrative sexual

assault on her, the offence which would attract is one

under Section 3 punishable under Section 4 of the

POCSO Act. However, charge has been framed under

Section 376 of IPC., which has been held to be proved by

the trial Court. The punishment provided for the offence

under Section 376 of IPC, as on the date of commission

of offence being one and the same as provided for

Section 4 of the POCSO Act and since charge has been

framed under Section 376 of IPC, this Court is of the

view that the conviction and sentence passed by the trial

Court for offence under Section 376 of IPC is proper.

32. For the foregoing reasons, I proceed to pass

the following:

ORDER

Criminal Appeal is partly allowed.

The Judgment and Order of conviction and

sentence dated 18.12.2018 passed in S.C. No.56/2016

on the file of the Court of II Addl. Sessions Judge at

Kolar [Spl. Court for POCSO] is set aside in so far as

Section 6 of the POCSO Act.

The Judgment and Order of conviction and

sentence passed for the offence under Sections 363 and

376 of IPC is hereby affirmed.

Both the sentences shall run concurrently.

Period of judicial custody of the appellant/accused

No.1 shall be given set off under Section 428 of Cr.P.C.

Sd/-

JUDGE

JY & Ksm*