Abdul Riyaz @ Riyaz Pasha vs The State Of Karnataka
2021 Latest Caselaw 6081 Kant

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                                                            R
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF DECEMBER, 2021

                        BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.1193 OF 2016

BETWEEN:

ABDUL RIYAZ @ RIYAZ PASHA
S/O ABDUL MAZEED
AGED ABOUT 38 YEARS
AUTO DRIVER
R/O CHATIPURA VILLAGE
CHAMARAJANAGAR-571 121.                     ... APPELLANT

[BY SRI. PARAMESHWARAPPA.C, ADVOCATE]

AND:

THE STATE OF KARNATAKA
THROUGH CHAMARAJNAGAR
RURAL POLICE STATION
CHAMRAJNAGAR - 571 121
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-01.                             ... 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
DATED 09/10.06.2016 PASSED BY THE PRL. DIST. AND S.J.,
CHAMARAJANAGAR IN SPL.C. NO.80/2014 - CONVICTING THE
APPELLANT/ACCUSED FOR OFFENCE P/U/S 376(2)(j)(n), 420 AND
506 OF IPC AND SEC.5(j)(ii) AND (l) R/W 6 OF POCSO ACT.

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

The Judgment and Order dated 09/10.06.2016

passed by the Court of Principal District and Sessions

Judge at Chamarajanagar, in Special Case No.80/2014 is

under challenge in this appeal, preferred by the accused.

2. By the impugned Judgment, the learned

Sessions Judge has convicted and sentenced the

accused/appellant for offence punishable under Sections

5(j)(ii) and (l) r/w 6 of the Protection of Children from

Sexual Offences Act, 2012 [hereinafter referred to as

'POCSO Act' for short] and Section 376(2)(j) and (n),

420 and 506 of IPC.

3. Heard the learned counsel for appellant and

the learned HCGP for respondent State and perused the

evidence and material on record.

4. At the outset, it is relevant to mention that

the trial Court has passed sentence against the accused

under the POCSO Act as well as under Section 376(2)(j)

and (n) of IPC. In view of Section 42 of the POCSO Act,

if the offender is found guilty of an offence under the

said Act or under the Indian Penal Code as mentioned in

the said provision, he shall be liable to punishment for

any of the offence as provides for punishment which is

greater in degree. Hence, passing sentence for both the

offences under Section 376(2)(j) and (n) of IPC as well

as under the POCSO Act is not proper.

5. The case of the prosecution is that, since 9

months prior to 28.05.2014, the accused was in love

with the victim girl, a minor aged about 16 years and

while she was going to the house of one Mohammed

Yusuf for rolling beedi, by alluring and promising that he

will marry her, committed penetrative sexual assault on

her repeatedly, on account of which she became

pregnant and delivered a baby girl on 24.05.2014.

Further, the accused committed sexual act by alluring

that he will marry only her and then cheated her and

also intimidated her by threatening to kill her if she

cause any alarm and disclose the incident to others.

Complaint is lodged by the father of the victim girl

who is examined as P.W.2. In his complaint lodged as

per Ex.P4, he has stated that he is a resident of

Chatipura village, Chamarajanagar and he is working as

an auto driver in Mysuru. He has 4 daughters and 3

sons. The victim girl is his third daughter and she is

aged about 16 years. She is residing along with her

mother in Chatipura village. About 5 days back, when he

was in Mysuru, his daughter was brought to K.R.Hospital

by his sister [P.W.3] and on enquiry, his daughter

revealed that the accused with a promise of marriage

committed forcible sexual intercourse on her since 9

months, due to which she has become pregnant and

that he threatened her with dire consequence not to

disclose the incident to others.

In order to prove the guilt of the accused, the

prosecution has got examined in all 25 witnesses and got

marked Ex.P1 to 26. The accused got himself examined

as D.W.1.

6. The defence taken by the accused is that,

P.W.3 viz., Raheebabanu, first informant's sister had

married his brother by name Ilyas Pasha on 19.08.1989.

However, they got separated since she was ill-treating

his brother. Therefore, P.Ws.2 and 3 were nurturing ill-

will against him. It is stated that P.W.3 was not in good

terms with her husband and they were waiting for an

opportunity to drive him out of the village and therefore

a false case was foisted against the accused.

7. The first informant has been examined as

P.W.2. He has re-iterated the averments made in the

complaint. In the cross-examination, though he has

denied that his sister i.e., P.W.3 married the brother of

the accused, however, P.W.3 has admitted in her cross-

examination that she had earlier married the brother of

accused. She has stated that a week after the marriage

she left her husband because she was not willing to stay

with him. However, she has denied that there was any

ill-will against the family of her husband.

8. The victim girl has been examined as P.W.1.

She has supported the prosecution. She has deposed

that she was going to the house of C.W.8 [P.W.7]-

Mohammed Yusuf for rolling beedi. At that time, the

accused used to sit beside her and tell her that he will

marry her. About 9 months prior to 03.05.2014, he

committed rape on her and threatened her not to

disclose the incident to others and therefore, she did not

inform to any one about the incident. Later, as she was

not keeping well, her aunt-P.W.3 took her to

Cheluvamba Hospital, wherein it was informed that she

is pregnant. Thereafter, she informed the accused that

he is responsible for her pregnancy. She has further

deposed that on 24.05.2014, she gave birth to a baby

girl and her father lodged the complaint on 28.05.2014.

The Police came to the hospital on 30.05.2014 and

recorded her statement as per Ex.P1. She has also

stated that she has shown the house of C.W.8 [P.W.7]

where the accused committed the offence. The spot-

mahazar is marked as Ex.P2. She has stated that the

accused is already married and having two children.

9. In the cross-examination of P.W.1, it is

elicited that her aunt i.e., P.W.3 had married the brother

of the accused and later she deserted him and married

another. She has stated that P.W.3 did not like the

accused as well as his brother and therefore the brother

of the accused left Chatipura village and started residing

in Bengaluru.

10. It is the contention of the learned counsel for

the appellant that as admitted by both P.Ws.1 and 3, all

was not well between the family of the accused and the

victim. P.W.3 is none other than the aunt of the victim.

She married the brother of the accused and thereafter

deserted him and therefore there was ill-will between the

two families. He therefore contends that P.W.3 while

admitting the victim girl in the hospital has falsely

alleged that the accused is responsible for victim's

pregnancy. It is his further contention that the

complaint is lodged after a delay of 6 days and it is

admitted by P.W.2 in the cross-examination that the

complaint was prepared by an Advocate. Therefore, he

contends that the complaint is tutored and filed after

deliberation.

11. The learned High Court Government Pleader

has contended that there is scientific evidence in the

form of DNA Profile Report which clearly establishes that

the accused is the biological father of the child given

birth by the victim and therefore there is conclusive

evidence to show that the accused has committed the

offence charged against him. She contends that the

victim's evidence is corroborated by medical evidence as

well as other material on record.

12. It is well-settled that the evidence of the

prosecutrix if inspires confidence of the Court, can be

accepted without there being any corroboration. In the

instant case, the victim who is examined as P.W.1 has

categorically stated that it is the accused/appellant who

committed sexual intercourse on her and cause for her

pregnancy.

13. Admittedly the victim delivered a baby on

24.05.2014 at Cheluvamba Hospital, Mysuru. P.W.23 is

the Forensic Expert, examined by the prosecution. He

has stated that he collected the blood samples of the

child, accused as well as the victim in the presence of the

learned Judge. The same is marked as Exs.P24 to 26.

14. P.W.19 has stated that he has taken 3

samples to FSL., Bengaluru and received

acknowledgement as per Ex.P19 and handed it over to

C.W.25 [P.W.24] viz., Investigation Officer. Assistant

Director, Forensic Science Laboratory, Bengaluru, has

been examined as P.W.23. He has stated that on

04.09.2014, he has received the sealed articles which

were brought by Mahadevaswamy i.e., P.W.19, which

was sealed and the said articles are as under:

"1. One sealed cloth packet containing two vacutainers said to contain sample blood collected from female individual by name Ms. Adila Banu @ Saira Banu, d/o. Sri. Aejas Pasha.

2. One sealed cloth packet containing a piece of bandage cloth said to contain sample blood collected from baby of Ms. Adila Banu @ Saira Banu.

3. One sealed cloth packet containing two vacationers said to contain sample blood collected from male individual by name Mr. Abdul Riaz @ Riaz Pasha, s/o. Sri. Abdul Majeed."

15. P.W.23 has given his opinion as under:

The DNA profile results of the blood samples sent in

item Nos.1, 2, and 3 found that;

"(1) The DNA profile of the sample blood sent in Item No.2, baby of x x x x x is consistent with having come from the offspring of Mr. Abdul Riaz @ Riaz Pasha, s/o. Sri. Abdul Majeed and matching with the DNA Profile of the sample blood in Item No.3.'

16. Exs.P22 to P26 are marked through P.W.23

i.e., Ex.P22 is the DNA Report, Ex.P23 is the

Introduction Statement and Method of Observation and

his Opinion and Ex.P.24 to 26 are Identification Forms of

Accused. He has stated that the sample blood sent in

Item No.3 is the biological father and source of DNA of

the baby of x x x x x, sample blood sent in item No.2.

17. There is nothing to disbelieve the DNA Report

submitted by P.W.23. From the evidence of P.W.1-victim

girl and the DNA Report-Ex.P22, the prosecution has

established its case beyond all reasonable doubt.

18. The prosecution has also got marked the

statement of the victim recorded under Section 164 of

Cr.P.C. as per Ex.P3 and the victim has stated that she

has given the said statement before the Court.

19. The learned counsel for the appellant has

contended that the prosecution has not established that

the victim was a minor at the time of incident by

producing any authenticated document. It is his

contention that as per Ex.P12 issued by doctor-P.W.14 of

Cheluvamba Hospital, Mysuru, the age of the victim girl

is mentioned as 19 years. Therefore, he contends that

the victim was a major and the said fact has been

suppressed by the prosecution. It is his contention that

even if it is to be accepted that the accused is the

biological father of the child born to the victim, then it

cannot be said that there was forcible sexual intercourse

committed against the victim as the material on record

would clearly disclose that it was a consensual act,

wherein the victim being a major, has given her consent

and therefore, it cannot be said that the accused has

committed the charged offence. It is his contention that

the victim's name is stated differently in Ex.P23 and

therefore the school document produced and marked by

the prosecution cannot be accepted as the document

pertaining to the victim.

20. In Ex.P12, though the name of the victim is

mentioned differently, it is pertinent to see that in the

complaint itself her second name is mentioned in the

bracket. In the complaint at Ex.P4, the age of the

victim is shown as 16 years. Further, the prosecution

has got marked Exs.P14 and 15 through the Head

Mistress [P.W.16] of the Government Urdu Higher

Primary School, Chatipur, Chamarajanagar where the

victim studied. From the evidence of P.W.16, it can be

seen that the victim girl joined I Standard in the said

school, in the year 2003 and passed VII Standard in

April, 2010. Ex.P14 is the Transfer Certificate and

Ex.P15 is the Admission Register Extract. In the said

documents, the date of birth of the victim is mentioned

as 10.04.1997. There is nothing to disbelieve the said

documents, wherein the date of birth was mentioned at

the time of admission of the victim to the I

Standard, in the year 2003.

21. It is the contention of the learned counsel for

the appellant that both P.W.7-owner of the house where

the incident is alleged to have taken place and his wife

P.W.8 have turned hostile and therefore the case of the

prosecution that the victim was going to the house of

P.Ws.7 and 8 to role beedi and at that time the accused

committed rape, is not established. The said contention

cannot be accepted for the reason that the victim has

duly supported the case of prosecution and her evidence

is corroborated by medical evidence.

22. Having re-appreciated the entire evidence on

record, this Court is of the considered view that the

prosecution has established the guilt of the accused

beyond reasonable doubt. The trial Court after

considering the oral and documentary evidence and after

giving reasons, has convicted and sentenced the accused

for the charged offences.

23. As already discussed, the sentence imposed

against the accused for both the offences under the

POCSO Act as well as under Section 376(2)(j) and (n) of

IPC may not be proper. However, for both the said

offences, the trial Court has sentenced the accused to

undergo rigorous imprisonment for 10 years and to pay

fine of `1,000/- and in default of payment of fine, to

undergo simple imprisonment for 3 months. The

substantive sentences has been ordered to run

concurrently, observing that the ingredients of the

offences are one and the same. Hence, no interference

is called for. Accordingly, the following:

ORDER

Criminal Appeal is dismissed.

Sd/-

JUDGE

Ksm*