Gangadhar S/O. Mallappa ... vs The State Of Karnataka
2021 Latest Caselaw 7135 Kant

        IN THE HIGH COURT OF KARNATAKA
               AT DHARWAD BENCH

 DATED THIS THE 23RD DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MRS.JUSTICE M.G.UMA

                CRL.A.NO.2501/2013

BETWEEN:

GANGADHAR
S/O MALLAPPA YANDIGERI,
AGE : 28 YEARS,
OCC; GENERAL STORE BUSINESS,
R/O MANTUR, TQ: MUDHOL,
DIST: BAGALKOT.
                                            ... APPELLANT

(BY SRI VYAS DESAI ADV. FOR SRI JAGADISH PATIL, ADV.)

AND :

THE STATE OF KARNATAKA,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD.
                                           ... RESPONDENT
(BY SRI PRAVEEN K.UPPAR, HCGP)

      THIS APPEAL IS FILED UNDER SECTION 374(2) OF THE
CODE OF CRIMINAL PROCEEDURE PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT PASSED BY THE COURT OF FAST
TRACK, JAMKHANDI IN SESSIONS CASE NO.49/2011 DATED
20TH NOVEMBER 2012 AND ACQUIT THE APPELLANT FROM THE
CHARGES LEAVED AGAINST HIM BY ALLOWING THIS APPEAL IN
THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR THIS APPEAL HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.11.2021,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                            2




                    : JUDGMENT :

The appellant being the accused in

S.C.No.49/2011 on the file of learned District and

Sessions Judge and Presiding Officer, Fast Track

Court, Jamkhandi ("the Trial Court" for short) is before

this seeking to set aside the impugned judgment of

conviction and order of sentence dated 20.11.2021,

where under he was convicted and sentenced to

undergo rigorous imprisonment for a period of five

years and to pay fine of Rs.2,000/- and in default to

pay fine he shall suffer further rigorous imprisonment

for a period of three months for the offence punishable

under Section 366A of the Indian Penal Code ("IPC"

for short) and to undergo rigorous imprisonment for a

period of 7 years and to pay fine of Rs.5,000/- and in

default to pay fine he shall further suffer rigorous

imprisonment for a period of six months for the

offence punishable under Section 376 of IPC.

2. Brief facts of the case are that, the

appellant was charged for the offence punishable

under Sections 366(A) and 376 of IPC on the

allegation that on 18.04.2011 at 1.15 p.m., the

accused procured the minor girl, who was below the

age of 16 years, with an intention to have illicit

intercourse with her and had taken her away from the

custody of her lawful guardian, taken her to various

places, committed rape on 22.04.2011 and thereby

committed the offences as stated above.

3. On the basis of the first information lodged

by PW.1, the father of the victim, the investigation

was undertaken and the charge sheet was came to be

filed. The learned Magistrate took cognizance of the

offence and committed the matter to the Trial Court.

The Trial Court summoned the accused to appear

before the Court. The accused has pleaded not guilty

for the charge leveled against him for the said

offences and claimed to be tired.

4. The prosecution in order to prove the guilt

of the accused, examined 17 witnesses got marked 31

documents and identified 9 material objects in support

of its contention. The accused has denied all the

incriminating materials available on record in his

statement recorded under Section 313 of Cr.P.C. But

has not chosen to lead any evidence in support of his

defence. However, during cross-examination of the

prosecution witness, Exs.D.1 and 2 came to be

marked. The Trial Court after taking into consideration

of all these materials on record came to the conclusion

that the prosecution is successful in proving the guilty

of the accused beyond reasonable doubt. Accordingly

the accused was convicted and sentenced for the

above stated offences.

5. Being aggrieved by the judgment of

conviction and order of sentence passed by the Trial

Court, the accused is before this Court seeking to set

aside the same and to acquit him for the above said

offences in the interest of justice.

6. Heard Sri Vyas Desai learned counsel for

the appellant and Sri Praveen K.Uppar, learned High

Court Government Pleader for respondent-State.

7. Learned counsel for the appellant has

addressed his arguments and also filed his written

submission. Perused the same.

8. It is the contention of the learned counsel

for the appellant that the age of the victim that she

was under the age of 16 years is not proved by the

prosecution in accordance with law. Under such

circumstances, Section 366A of IPC could not have

been invoked by the Trial Court. Even with regard to

commission of the offence under Section 376 of IPC,

there are absolutely no materials placed before the

Court except the interested testimony of the victim

girl. Serious doubt arises from the evidence of the

victim girl. Her version is not corroborated by any

other material. Even the medical evidence and the

RFSL report are not helpful to the case of the

prosecution. Under such circumstances, the Trial Court

committed an error in convicting the accused. The

Trial Court should not have given the benefit of doubt

to the appellant and he should have been acquitted.

Since the impugned judgment of conviction and order

of sentence passed by the Trial Court is perverse, the

same is liable to be set aside. Accordingly he prays for

allowing the appeal.

9. per contra, learned High Court Government

Pleader opposing the contention taken by the learned

counsel for the appellant contended that the

prosecution examined PW.1, the father of the victim

girl, who lodged the missing complaint on 20.04.2011.

PW.2 is the scribe who wrote the first information i.e.,

missing complaint lodged by PW.1. PW.3 is the victim

herself who stated that she was born on 02.06.1995

and she is the informant who filed first information as

per Ex.P.2. This witness narrated the offence

committed by the accused in detail. Even though the

witness was cross-examined at length nothing has

been elicited from her. The prosecution has also

examined PW.10 to prove the age of the victim as 16

years at the time of incident. PW.11 is the doctor who

examined the victim girl and issued Exs.P.22, 23 and

25. PW.17 is the Investigating Officer who conducted

the investigation and filed the charge sheet. Apart

from these material witnesses, the prosecution has

also examined the other circumstantial and formal

witnesses. From these materials on record, the

prosecution is successful in proving the guilt of the

accused beyond reasonable doubt. The Trial Court

taken all these materials into consideration and rightly

formed an opinion that the prosecution is successful in

proving the guilt of the accused beyond reasonable

doubt. There are no materials to contend that the

impugned judgment of conviction is perverse or illegal.

There are no grounds to interfere with the impugned

judgment of conviction and order of sentence passed

by the Trial Court. Hence, he prays for dismissal of the

appeal.

10. Perused the materials on record.

11. In the light of the rival contentions of

learned counsel for both the parties, the point that

would arise for consideration of this court is as

follows:

"Whether the impugned judgment of conviction and order of sentence dated 20.11.2012 passed in S.C.No.49/ 2011 on the file of the Trial Court for the offence punishable under Sections 366A and 376 of IPC calls for interference by this Court?"

12. My answer to the above point is in the

'affirmative' for the following :

: REASONS :

13. It is the specific contention of the

prosecution that the accused who was knowing the

minor girl, procured her and taken away from her

guardian with an intention to commit illicit intercourse

and thereby committed the offence punishable under

Section 366A of IPC. Further the accused committed

rape on the victim and has committed offence

punishable under Section 376 of IPC. To prove this

contention the prosecution examined PW.1, who filed

the missing complaint on the initial stage on

20.04.2011.

14. PW.1 stated that, his daughter is aged 16

years and was studying in 10th Standard. The accused

was running a Kirana store in the village. The victim

was knowing the accused. Witness stated that on

18.04.2011 the victim had not returned to the house.

He searched for her for two days and on 20.04.2011

lodged the first information as per Ex.P.1. On

23.04.2011 the victim girl returned to the house along

with police. On enquiry she informed that the accused

had taken her away and both of them have went to

Hubballi, Dharwad, Davanagere and Aasangi. When

they were in Aasangi, the accused committed rape on

her. Therefore, the victim was taken to the police

Station. She lodged the first information against the

accused. During cross-examination of this witness, he

denied the suggestion that the victim is aged more

than 18 years and deposing falsely with regard to her

age. He also denied the suggestion that the

complainant was having ill-will against the accused

and therefore the false complaint was came to be

lodged.

15. PW.2 is a formal witness who wrote Ex.P.1.

16. PW.3 is the victim girl who stated that she

was studying in 10th Standard and was born on

02.06.1995. The accused was having Kirani store near

her school and therefore she was knowing him. She

used to purchase kirani items from his shop. On

18.04.2011 at 12.30 p.m., she was standing near the

entrance arch, accused came there and asked her to

accompany him to Jamkhandi. When she refused to

accompany him as she has not informed her family

members, accused assured that he informed her

family members and she may not have to worry.

Accordingly she went with him. Both of them went to

Mudhol, in a bus. Thereafter gone to Jamkhandi. They

have visited several sites. Thereafter visited Hubballi

and Davanagere. In Hubballi and Davanagere they

visited several places and spent about two days in

Davanagere. They spent night hours in bus-stand.

17. Witness stated that, the accused took her

to Aasangi village and they went to the house of his

maternal aunt-Chandrawwa Hanchinal on 22.04.2011.

Thereafter he took the victim girl to their land where

sugarcane crop was grown. In the sugarcane filed the

accused committed rape on her. They spent that night

in the house of said Chandrawwa Hanchinal and on the

next day she returned to her house. The maternal

aunt of the accused enquired about the victim and the

accused informed that she is related to him Witness

states that she narrated the incident to her parents

who have scolded her and all of them went to police

station. She carried the clothes which she was wearing

at the time of incident to the police station and lodged

the first information as per Ex.P.2. She was examined

by the medical officer. She identified her dress as

MOs.1 to 4. She stated that she had shown the scene

of occurrence to the Police who have drawn

panchanama as per Ex.P.3 and Ex.P.8. Witness stated

that, she treated the accused as her brother and had

accompanied him.

18. During cross-examination by the learned

counsel for the accused, the witness sated that when

she left the house on 18.04.2011, PW.1 had scolded

and assaulted her. She denied the suggestion that she

was in constant touch with the accused and was

calling him very frequently and was also sending

messages.

19. Witness states that on the date of incident

on 12.30 p.m., she was standing near the arch and

immediately the accused came there. Within five

minutes they boarded the bus and went to Mudhol via

Bilagi. There were several passengers in the bus but

she has not informed any of them that the accused is

taking her away. When they alighted the bus in

Mudhol there were several persons. She has not

complained with any of them. So also she has not

complained with anybody, either in Hubballi or

Davanagere etc. They stayed in the bus-stand of

Davanagere for two nights. On 22.04.2011 they went

to the house of the maternal aunt of the accused.

There were 7 or 8 person in the house. Thereafter

they went to the sugarcane filed, where the accused

committed the offence. Immediately thereafter they

went back to the house of the maternal aunt of the

accused. She has not complained against the accused

with anybody. On the next day the accused brought

her back to the village. Witness stated that she

resisted the accused and opposed commission of the

offence. She admitted that if such an act was

committed in the sugarcane filed, there is every

chances of sustaining injuries. But stated that she had

sustained injuries on her back. She denied the

suggestion that she filed false complaint against the

accused even though she is aged more than 18 years

and the accused had not committed any offence as

alleged.

20. PW.5 is the mother of the victim who is a

circumstantial witness. PW.6 is villager who is also a

circumstantial witness who states that on 18.04.2011

he had seen the victim girl standing with the accused.

21. PW.10 is the Head Master of Higher Primary

School, Mantur. Witness stated that the victim girl was

the student of his school and studying in 10th

Standard. He has given the date of birth certificate of

the victim on the basis of the documents that were

available in his school, they are Exs.P.16 to 18. During

the course of cross-examination, witness stated that

the victim was admitted to the school on the basis of

the Transfer Certificate issued by the School where the

victim studied 7th Standard. He pleaded his ignorance

as to in which Schoo she studied up to 7th Standard.

He also pleaded his ignorance as to the basis on which

the date of birth is mentioned in the school record.

22. PW.11 is the doctor who examined the

victim on 24.04.2011. Witness stated that the history

of incident was given by the victim herself which had

taken place on 22.04.2011 at 11.20 a.m. She

examined the victim on 24.4.2011 at 12.00 in the

midnight. The hymen was torn. The victim complained

of pain in her private part. There were no external

injuries. She issued Ex.P.23. Witness admitted that if a

person forcibly commits rape, there is every possibility

of the victim sustaining injuries.

23. During cross-examination, the witness

stated that, there were no signs or injuries to show

resistance by the victim. Her clothes were not torn.

She denied the suggestion the victim was not

subjected to sexual assault. Witness also stated that

she had not determined the age of the victim nor any

ossification test was held.

24. PW.17 is the Investigating Officer who

deposed regarding the investigation under taken by

him.

25. Ex.P.1 is the missing complaint lodged by

PW.1, the father of the victim girl. Ex.P.2 is the first

information lodged by the victim narrating the very

same fact that the accused had invited her and

accordingly she accompanied him on 18.04.2011. She

was taken to various places and finally on 22.04.2011

she was taken to his maternal aunt's house and both

of them went to sugarcane filed wherein he committed

rape.

26. Ex.P.17 is the school admission certificate

issued by PW.10 in favour of the victim as per this

document the victim was studying from 8th Standard

to 10th Standard in Government Higher Primary

School, Mantur and her date of birth is 02.06.1995.

Ex.P.18 is also the certificate issued by PW.10 to the

effect that the victim girl has taken SSLC examination

for the said academic year.

27. Ex.P.22 is the profarma of the examination

of victim of rape. According to which, the victim was

examined by PW.11 and her hymen was found

ruptured. There were no external injuries sustained by

the victim and the medical officer is of the opinion that

there was sexual intercourse that had happened.

28. Ex.P.23 is he wound certificate issued by

PW.11 certifying that the victim had not having any

injuries on her body. When the victim had brought to

her with the history of assault on 22.04.2011 at 11.20

a.m.

29. Ex.P.25 is the medical report concerning to

victim girl and as per the final opinion of the RFSL, the

presence of seminal stains was negative in the cloths

that were examined and the accused had also not

sustained any injuries.

30. The RFSL report is as per Ex.P.30.

According to which, the presence of seminal stains

was found negative in Item No.1 to 4 and 6, 8 and 9.

31. The accused denied all the incriminating

materials available on record in his statement

recorded under Section 313 of Cr.P.C nor he examined

himself or any other witnesses in support of his

defence.

32. It is the specific contention of the

prosecution that, the accused had committed the

offence punishable under Section 366A of IPC. To

attract Section 366A, the prosecution has to prove

that the victim is under the age of 18 years and she

was procured by the accused either by force or by

seducing for the purpose of committing illicit

intercourse. The evidence of PW.10, the Head Master

of the School where the victim said to be studying

discloses that he issued Ex.P.16 and 17 on the basis of

the School records. During cross-examination, the

witness pleads ignorance regarding the basis on which

the date of birth is recorded in the school records.

33. Learned counsel for the appellant placed

reliance on the decision of the Hon'ble Apex Court in

Jernail Singh Vs. State of Haryana1, wherein the

Hon'ble Apex Court laid down the procedure for

determining the age of the victim under the POCSO

Act. The Hon'ble Apex Court referred to Rule 12 of the

Juvenile Justice (Care and Protection of Children)

Rules 2007 ("Rules 2007" for short), which prescribes

procedure to be followed in determination of the age

of the child in conflict with law and held in paragraph

No.23, which reads as under:

"Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a

(2013) 7 SCC 263

child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied

upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion"

34. Therefore it is clear that in the absence of

specific provision for determination of the age of the

victim under POCSO Act, Rule 12 of Rules 2007 is

made applicable. As per Rule 12(3)(2) of the Rules

2007, the date of birth certificate from the School first

attended is to be preferred in the absence of the

certificate of matriculation or equivalent to that. In the

present case it is the contention of the prosecution

that the victim was still studying in 10th Standard.

Therefore, the prosecution chose to produce Ex.P.16

and 17 to prove the date of birth of the victim. The

requirement of law under the above rule, is the date of

birth certificate from the school first attended by the

victim. But Ex.P.17 is the certificate issued by PW.10

which specifically states that the victim was studying

in the school from 8th Standard to 10th Standard. He

pleaded his ignorance on what basis the date of birth

is mentioned in the School records.

35. When the accused specifically denies that

the victim was a minor aged under 18 years, heavy

burden lies on the prosecution to prove the same in

accordance with law. Except the oral say of PW.3 and

Ex.P.17 issued by PW.10 there are no other materials

to conclude that the victim was aged 16 years as

contended by the prosecution. Under such

circumstances, it cannot be concluded that the

prosecution is successful in proving that the victim

was under the age of 18 years at the time of incident.

36. It is the contention of the prosecution that

the victim was procured by the accused by inducing

her to take her to various places. Even according to

PW.3 she was not resisted while going along with

accused at any time. They gone around to several

places and finally visited the house of the maternal

aunt of the accused. The victim specifically stated that

there are 7 or 8 persons in the said house. She has

not complaining anything with them. Thereafter both

of them went to sugarcane filed where the accused

said to have committed rape. Victim specifically states

that after the incident both the them returned back to

the house. But she has not complained against the

accused. On the other hand, on the next both of them

returned back to their village. The victim came back to

her house and narrated the incident on questioning by

her parents, who said to have scolded her.

37. The conduct of the victim discloses that she

never resisted nor objected the act of the accused.

When the prosecution failed to prove that the victim is

a minor, this conduct of the victim assumes

importance. When the prosecution taken a specific

stand that the accused had committed an offence

punishable under Section 366A of IPC, it is incumbent

on the prosecution to prove that the victim was under

the age of 18 years. In the absence of such proof, it

cannot be said that the prosecution is successful in

proving the guilt of the accused for the offence

punishable under Section 366A of IPC. When there is

nothing on record to conclude that the victim is minor,

the conduct of the victim in not raising any objection

while going along with the accused, even immediately

after the incident in question, assumes importance

and it cannot be said that the accused has committed

rape on her forcibly. There is reasonable doubt arising

in the mind of the Court while considering the

contention of the prosecution in the matter of

commission of offence by the accused.

38. Except the testimony of PW.3-the victim

herself, absolutely no other materials are placed to

substantiate the contention of the prosecution. Even

as per the medical records except the fact that her

hymen was torn, there are no other signs of

committing the offence. Even though PW.3 states that

she had preserved her cloths which she was wearing

at the time of incident and handed over to the police,

the RFSL report which is as per Ex.P.13, gives

negative report for presence of seminal stains. The

medical certificate also gives a negative report for any

such offence committed by the accused.

39. When serious doubt arises about the

commission of the offence by the accused, it is the

bounden duty of the prosecution to place cogent

material to substantiate its contention. Except the

evidence of PW.3 there are no other materials to

substantiate her say about commission of the offence

under Section 376 of IPC. When the version of PW.3 is

shady, corroboration of her evidence is very

necessary. The prosecution has not examined any of

the persons who are said to be present in the house of

material aunt of the accused to probablise the

contention of the prosecution.

40. Learned counsel for the accused placed

reliance on the decision of the Hon'ble Apex Court in

Razak Mahammad Vs. State of Himachal Pradesh

(2018) 9 SCC 248, wherein on the facts and

circumstances of the case, the Hon'ble Apex Court

held that there is ample doubt with regard to the

correct age of the prosecutrix and the mere fact that

the victim has freely moved with the accused and

never complained with anybody with whom she was

confronted, either before or after commission of the

offence, would give rise to reasonable doubt about the

contention of the prosecution and therefore, acquitted

the accused. The facts and circumstances of the said

case aptly applies to the facts and circumstances of

the present case. Except the interested testimony of

the prosecutrix there are no other materials to prove

the contention of the prosecution. Therefore, I am of

the opinion that the prosecution is not successful in

proving the guilt of the accused beyond reasonable

doubt and therefore, the accused is to be given the

benefit of doubt and he entitled to be acquitted.

41. I have gone through the impugned

judgment of conviction and order of sentence passed

by the Trial Court, it has proceeded to convict the

accused only on the basis of the evidence of the Head

Master of the School in support of the birth certificate

and the version of PW.11, the doctor who examined

the victim and proceeded to convict the accused.

Therefore I find it appropriate to set aside the

impugned judgment of conviction and order of

sentence passed by the Trial Court. Accordingly, I

answer the above point in the 'affirmative' and

proceed to pass the following:

: ORDER :

The appeal is hereby allowed.

The impugned judgment of conviction and order of sentence dated 20.11.2012 passed in S.C.No.49/2011 on the file of the Trial Court for the offence punishable under Section 366A and 376 of IPC is hereby set aside.

Consequently, the appellant/ accused is acquitted for the offence punishable under Sections 366A and 376 of IPC.

Fine amount deposited, if any, by the accused is ordered to be refunded to him on due identification.

The bail bounds of the accused and that of his sureties stand cancelled.

Send back the Trial Court records along with copy of this judgment.

SD/-

JUDGE EM