Mr. Rajesh vs The State Of Karnataka
2021 Latest Caselaw 6276 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF DECEMBER, 2021

                        BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.1423 OF 2018

BETWEEN:

MR. RAJESH
S/O ERAPPA
AGED ABOUT 26 YEARS
R/A NARASAPUR VILLAGE
KOLAR TALUK & DISTRICT-563 133.              ...   APPELLANT

[BY SRI. TIGADI VEERANNA GADIGEPPA, ADVOCATE]

AND:

THE STATE OF KARNATAKA
REPRESENTED BY:
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA BUILDING
BY VEMGAL POLICE
KOLAR DISTRICT-563 133.                  ...   RESPONDENT

[BY SMT. LEENA C. SHIVAPURMATH, HCGP]


                          ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 04.07.2018 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, KOLAR IN S.C.NO.67/2017 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR OFFENCE P/U/S
376 OF IPC AND SECTION 4 OF POCSO ACT.

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

This appeal is preferred by accused No.1 in S.C.

No.67/2017 on the file of the Court of II Addl. Sessions

Judge at Kolar, convicting and sentencing him for offence

punishable under Section 376 of IPC and Section 4 of the

Protection of Children from Sexual Offences Act, 2012

[hereinafter referred to as 'POCSO Act' for short].

2. Heard both side and perused the evidence and

material on record.

3. Charges were framed by the trial Court for

offence punishable under Section 376 of IPC and Section

4 of the POCSO Act against appellant/accused No.1 and

under Sections 323, 324, 504, 506 r/w 34 of IPC against

other accused.

4. The trial Court by its Judgment and Order

dated 04.07.2018 was pleased to acquit accused Nos.

2 to 4 for offence punishable under Sections 323, 324,

504, 506 r/w 34 of IPC and convicted accused No.1 for

offence punishable under Section 376 of IPC and Section

4 of the POCSO Act, 2012.

5. Gist of the prosecution case is that, accused

No.1 by promising the victim aged less than 18 years

that he will marry her, committed rape on her two

months prior to the date of lodging of the complaint and

thereafter threatened her not to disclose the incident to

others. Thereafter, he refused to marry her and all the

accused picked up quarrel with the victim, abused her

and assaulted her with hands and accused No.3

assaulted with a knife and caused injuries to her head

and thereby committed the charged offences.

To substantiate the charges leveled, prosecution

got examined in all 18 witnesses as P.Ws.1 to 18 and got

marked Exs.P1 to 24 and M.Os.1 to 10. The defence of

the accused was total denial, however no defence

evidence was lead.

The trial Court came to the conclusion that, the

evidence of P.Ws.1 and 2 coupled with the medical

evidence shows that there was rape on the victim and

the doctor-P.W.13 has given report that the victim was

aged between 17-18 years and if the date of birth of the

victim as per Ex.P10 is taken into consideration, the

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

incident has taken place two months prior to lodging of

the complaint and therefore the victim's age will be 16

years 6 months as on the date of the incident. The trial

Court has however acquitted accused Nos.2 to 4 holding

that the materials available on record are not sufficient

to say about the assault and involvement of the said

accused.

6. P.W.1 is the victim girl. The complaint is

lodged by her. Her complaint is marked as Ex.P1. P.W.2

is victim's father.

7. P.W.3 is the panchwitness to Exs.P4 and 5 i.e.

Ex.P4 is the spot where the appellant/accused No.1 is

alleged to have committed rape and Ex.P5 is the spot

where the accused persons assaulted the victim. He has

turned hostile.

8. P.Ws.4 and 5 are the witnesses to the

panchayat said to have been conducted. Both of them

have turned hostile and not supported the prosecution.

9. P.W.6 is the Assistant Engineer, Health and

Family Welfare Department, who drew the sketch as per

Exs.P2 and 8.

10. P.W.7 is the Principal of the Government Pre-

University College, who has issued Ex.P10 i.e., Age

Certificate concerning the victim.

11. P.W.8 is the PDO, who issued Exs.P11-khata

extract.

12. P.W.9 is another witness who attended the

panchayat and he is a panchwitness to Ex.P5. He has

not supported the prosecution case.

13. P.W.10 is the doctor, who examined the

victim [P.W.1] and issued Wound Certificate marked as

per Ex.P15.

14. P.W.11 is the doctor, who issued Ex.P16 after

conducting medical examination of the appellant/accused

No.1.

15. P.W.12 is the doctor, who has examined the

victim [P.W.1] and issued Exs.P17 and 19. Ex.P18 is the

FSL Report marked through the said witness.

16. P.W.13 is the doctor, who estimated the age

of the victim as between 17-18 years and issued Ex.P20.

17. P.W.14 is the ASI, who has taken the victim

before the doctor for medical examination as well as

produced before the Magistrate for recording her

statement under Section 164 of Cr.P.C.

18. P.W.15 is the PSI who deputed P.W.16 to

record the statement of the victim from the hospital. On

receiving the said statement, he registered the case and

sent FIR Ex.P22 to the jurisdictional Magistrate.

19. P.W.16 is the panchwitness to Exs.P4 and 5.

20. P.W.17 is the Investigation Officer, who has

completed investigation and filed the charge-sheet.

21. P.W.18 is the CPI who conducted part of the

investigation.

22. The specific case of the prosecution is that the

victim is a minor, aged below 18 years. Accused No.1 by

inducing her and on a false pretext of marriage,

committed rape on her two months prior to the date of

lodging the complaint and thereafter, he threatened her

with dire consequence and refused to marry. Further, he

along with other accused persons picked up quarrel with

her and when she requested accused No.1 to marry her,

all of them abused and assaulted her and accused No.3

caused injury to her head with a knife.

23. As already noted, the trial Court has come to

the conclusion that the charges leveled against accused

Nos.2 to 4 are not proved by the prosecution. The

Judgment of acquittal in respect of the said accused has

become final.

24. To establish that the victim was a minor at

the time of incident in question, the prosecution has

placed reliance on the evidence of P.Ws.1 and 2 and the

Certificate issued by P.W.7-Principal of the Government

Pre-University College, wherein the victim was studying

as well as Age Certificate-Ex.P20 issued by P.W.13.

25. It is the contention of the learned counsel for

the appellant that the prosecution has failed to establish

victim's correct age, by adducing reliable evidence. He

would contend that Ex.P10 issued by P.W.7 is based on

the register maintained in the College. The prosecution

has not produced the said register and therefore, merely

on the basis of Ex.P10 it cannot be said that the date of

birth mentioned in the said Certificate is the correct date

of birth of the victim. It is his further contention that

according to P.W.13, X-ray examination was conducted

and the age of the victim was estimated as 17-18 years.

However, the prosecution has not produced any X-ray to

establish that in fact, the victim was subjected to such

an examination.

26. The learned counsel for the appellant would

also contend that in Ex.P1, the age of the victim is shown

as 18 years and even in the statement recorded under

Section 164 of Cr.P.C., her age is shown as 18 years and

therefore benefit of doubt has to be given to the

appellant/accused No.1.

Per contra, the learned High Court Government

Pleader has contended that there is nothing to disbelieve

the evidence of P.Ws.7 and 12 and the certificates issued

by them. The victim was studying in II PUC at the time

of incident and P.W.7 after verifying the documents, has

issued Ex.P10, wherein the date of birth of the victim is

shown as 09.08.1998. She therefore contends that the

prosecution has established that the victim was a minor

at the time of commission of the offence.

27. It is useful to refer to the relevant portion of

the Judgment of the Hon'ble Apex Court in the case of

Jarnail Singh Vs. State of Haryana, reported in

(2013)7 Supreme Court Cases 263. Para 22 of the

said Judgment is extracted hereunder:

"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:

                 "12.    Procedure       to      be    followed     in
           determination         of   age.-(1)    In   every      case

concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

                 (2) x x x x x

              (3) In every case concerning a child or
           juvenile   in  conflict with    law,  the   age

determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

                   (iii) the birth certificate given        by   a
            corporation or a municipal authority            or   a
            panchayat;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) x x x x x

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

(6) x x x x x ."

At para 23 of the said Judgment, the Hon'ble Apex Court

has held that even though Rule 12 is strictly applicable

only to determine the age of a child in conflict with law,

the aforesaid statutory provision should be the basis for

determining the age, even of a child who is a victim of

crime.

28. In the case on hand, it is not in dispute that

the victim was studying in II PUC at the time of incident

in question. As per Ex.P10 issued by P.W.7, the victim

was studying in I PUC and II PUC during the academic

year 2014-15 and 2015-16 respectively. It is mentioned

therein that as per the entry made during 2014-15, the

date of birth of the victim is 09.08.1998. If the said date

of birth is taken into consideration, the victim was aged

below 18 years at the time of incident.

29. It is relevant to see that in the present case,

the prosecution has not placed Certificate from the

school first attended or the Date of Birth Certificate given

by the Municipality/Corporation. It is not the case of the

prosecution that matriculation or equivalent certificate

was not available. However, such certificate is also not

produced. According to P.W.7, based on the entry made

in the registry, he has issued Ex.P10 mentioning the

Date of Birth as 09.08.1998. However, no such register

has been placed on record to show that in fact in the said

register, the date of birth of the victim is mentioned as

09.08.1998.

30. In the cross-examination, P.W.7 has stated

that based on the Transfer Certificate, he has mentioned

the date of birth of the victim. However, the said

Transfer Certificate has not been produced and marked.

As rightly contended by the learned counsel for the

appellant, even though Ex.P20 has been issued by

P.W.13 estimating the age of the victim as 17-18 years,

the prosecution has failed to place any material to show

that the victim was subjected to examination such as

Radiological/Ossification Test to estimate her age. It is

pertinent to refer to the cross-examination of P.W.13,

wherein he has stated that in the Scanning Report the

age of the victim is mentioned as 18 years.

31. In the complaint at Ex.P1 lodged by the

victim, she has mentioned her age as 18 years and even

in the statement recorded under Section 164 of Cr.P.C.,

her age is shown as 18 years. Hence, reasonable doubt

arises in the mind of the Court about the exact age of

the victim. Hence, it cannot be said that the prosecution

has established that the victim was a minor, aged below

18 years at the time of incident.

32. It is the contention of the learned counsel for

the appellant that there is material discrepancy in the

evidence of the victim and she has improved her case

from stage to stage and there are material

improvements. He would contend that even according to

the victim, there was a love affair. He submits that

according to the victim, appellant/accused No.1

committed sexual intercourse with her when she was

alone in the house. He contends that according to the

complaint, the appellant has only on one occasion

committed sexual intercourse, however, in the history

given before the doctor-P.W.12, she has alleged that on

several occasions the appellant has committed sexual

intercourse. He has pointed out that the averments in

the complaint are contrary to the statement-Ex.P3

recorded under Section 164 of Cr.P.C. He therefore

contends that the victim is not a trustworthy witness and

the allegation that the appellant with a false promise of

marriage has committed rape on her cannot be believed.

33. The learned High Court Government Pleader

has contended that the evidence of the victim is

corroborated by the evidence of P.W.2, her father as well

as medical evidence. There is nothing to disbelieve their

evidence and therefore the trial Court has rightly come

to the conclusion that the appellant has committed the

charged offence.

34. The perusal of Ex.P1, the complaint lodged by

the victim go to show that both the victim and the

appellant were in love with each other. About two

months prior, when she was alone in the house, the

appellant committed sexual intercourse with her with a

promise of marriage. She did not inform the incident to

others since the appellant had promised that he will

marry her. About one week prior to lodging of the

complaint, the appellant refused to marry. Hence, a

panchayat was conducted on 28.03.2016 and in the said

panchayat he agreed to marry. However, again on

02.04.2016, the appellant refused to marry and when

she questioned, all the accused picked up quarrel with

her and abused and also assaulted her etc.

35. Ex.P3 is the statement of the victim recorded

under Section 164 of Cr.P.C. The said statement was

recorded on 05.04.2016. In the said statement, it is

stated that the appellant is her uncle and they were in

love with each other. On 28.03.2016, in the panchayat

conducted, he had agreed for marriage and later, on

28.04.2016, he refused to marry. According to her, she

was abused and assaulted by the accused persons on

02.04.2016 and about 7 days prior to the said incident,

appellant had committed forcible sexual intercourse on

her when there was no one in her house. The statement

given by the victim in Ex.P3 is contrary to the evidence

before the Court. She has specifically stated that about

two months prior to the date of lodging of the complaint,

appellant committed forcible sexual intercourse with her.

However, in Ex.P3 she has alleged that about 7 days

prior to the assault, the appellant committed forcible

sexual intercourse with her. It is relevant to note that on

the very next date of the alleged assault by the accused

persons, she has lodged the complaint.

36. The independent witnesses viz. P.Ws.4, 5 and

9 to the panchayat said to have been held have not

supported the case of prosecution and they have turned

hostile.

37. According to P.W.2-victim's father, his

daughter as well as the appellant were in love with each

other. On seeing her daughter crying, he enquired with

her and at that time she informed him that the appellant

by promising that he will marry, committed rape on her

and thereafter the appellant refused to marry. In the

cross-examination, he has stated that he does not

remember as to when his daughter informed him about

the rape committed on her by the appellant. P.W.12 is

the doctor who conducted medical examination on the

victim. She has deposed that the victim gave history

that about two months prior, on three occasions, the

appellant committed rape on her and 7 days prior to

conducting the medical examination, the appellant

committed rape on her. She has issued Exs.P17 and 19

opining that there are no signs of recent injuries, no

signs of recent penetration and findings are consistent

with vaginal penetration in the past. As per the FSL

Report-Ex.P18, the seminal/spermatozoa was not

detected in the article sent for examination.

38. From the above evidence on record, it is seen

that the victim has taken different stands at different

stages. She has alleged in Ex.P1 that two months prior,

when she was alone in the house, the appellant by

promising that he will marry, committed forcible sexual

intercourse on her, whereas in the statement recorded

under Section 164 of Cr.P.C. marked as Ex.P3, she has

stated that about 7 days prior, the appellant committed

forcible sexual intercourse on her. According to P.W.12-

doctor, history given by the victim is that on three

occasions the appellant committed sexual intercourse on

her. P.W.1 is not consistent about the alleged rape

committed on her by the appellant. Hence, a reasonable

doubt arises in the mind of the Court about the veracity

of the allegations made against the appellant. According

to P.W.13, the victim was subjected to scanning and it

was found that she was not pregnant. He has issued a

report as per Ex.P21. P.W.12 in her evidence has stated

that there was no injuries and no signs of recent sexual

intercourse. Hence, it cannot be said that the

prosecution has been able to establish the charges

levelled against the appellant/accused No.1 beyond all

reasonable doubt. The reasons assigned by the learned

Sessions Judge for convicting the appellant/accused No.1

is therefore not in accordance with law. The

appellant/accused No.1 is entitled to benefit of doubt.

Accordingly, the following:

ORDER

Criminal Appeal is allowed.

The Judgment and Order dated 04.07.2018 passed

in S.C. No.67/2017 on the file of the Court of II Addl.

Sessions Judge, Kolar, convicting and sentencing the

appellant/accused No.1 for offence under Section 376 of

IPC and Section 4 of the POCSO Act is hereby set aside.

The appellant/accused No.1 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.

Sd/-

JUDGE

Ksm*