Gaddi Mallappa S/O Kotrabasappa vs The State Of Karnataka
2022 Latest Caselaw 6067 Kant

                              1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 05TH DAY OF APRIL, 2022
                          BEFORE
             THE HON'BLE MR. JUSTICE P.N.DESAI
              CRIMINAL APPEAL NO.100369/2019

BETWEEN:
GADDI MALLAPPA
S/O. KOTRABASAPPA
AGE:59 YEARS
OCC: HOTEL EMPLOYEE
R/O.SOGI VILLAGE,
AT POST:HADAGALI TALUK,
TAL & DIST:BALLARI DISTRICT
                                                 ...APPELLANT
(BY SHRI. PRASHANT S.KADADEVAR, ADVOCATE.)

AND:

THE STATE OF KARNATAKA
THE DEPUTY SUPERINTENDENT OF POLICE
HUVINAHADAGALI, SUB DIVISION
HUVINAHADAGALI, BALLARI DISTRICT
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH
DHARWAD
                                             ...RESPONDENT
(BY SMT. GIRIJA HIREMATH, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
15.12.2018 AND 18.12.2018 PASSED BY THE I-ADDL. DIST AND
SESSIONS JUDGE, BALLARI, IN SPL. CASE NO.02/2016 FOR THE
OFFENCE P/U/S 376(2)(F) OF IPC R/W SEC.4 OF POCSO ACT,
2012.

     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT PASSED THE FOLLOWING:
                                    2




                                 JUDGMENT

This appeal is filed challenging the judgment of

conviction and order of sentence passed by the 1st Additional

District and Sessions Judge, Ballari, in Special case

No.2/2016 dated 15.12.2018, wherein the appellant/accused

is convicted for the offence punishable under section

376(2)(F) of Indian Penal Code, 1860 (for short hereinafter

referred to as 'IPC') and also for the offence under Section 4

of the Protection of Children from Sexual Offences Act, 2012

(for short hereinafter referred to as 'POCSO Act'). The

appellant/accused was acquitted for the offence under

Section 506 of IPC and Sections 3(1)(xi) and 3(2)(v) of

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short hereinafter referred to as

'SC/ST (POA) Act') and also for the offence under Section 6 of

POCSO Act.

2. The appellant/accused was sentenced to undergo

rigorous imprisonment for a period of 07 years and ordered

to pay a fine of Rs.50,000/- and in default to pay fine

amount, he shall undergo simple imprisonment for a period

of one year for the offence under Section 376(2)(f) of IPC r/w

Section 4 of POCSO Act. The District Legal Services Authority,

Ballari is directed to disburse the compensation amount of

Rs.50,000/- to the victim under the Victim Compensation Act,

as per the G.O.NO.HD 22 PCB 2018 Dt. 21.6.2018.

3. The appellant was the accused before the trial

court.

4. It is alleged that on 18.10.2015 at about 07:30

p.m. when the victim/minor, daughter of complainant who

belongs to Korachara caste which comes under the SC/ST

Act, was waiting for her mother near Yallamma Temple

situated near her house at Sogi Village, at that time,

appellant/accused lured the victim stating that he will give

chocolate, then took her to his hotel, gave Rs.20/- and asked

her to bring brandy bottle. The appellant/accused consumed

brandy, removed the clothes of victim, when she tried to

escape from him, he dragged her, made her to fall on the

ground and committed penetrative sexual assault on her.

When victim was shouting, the complainant came there,

rescued her daughter/victim. The appellant/accused gave life

threat to the complainant and victim stating that if she files

any complaint, he will take away their life. Accordingly, the

complainant gave complaint to the concerned police which

came to be registered in Cr.No.58/2015 of Itagi police station

for the offence under Section 376 IPC and also for the other

offence. The investigating officer after investigation, filed the

charge sheet against the accused for the offence under

Section 376(2)(f) IPC and also for the offence under the

provisions of SC/ST (POA) Act. The appellant/accused was

arrested and he is in custody.

5. Thereafter, the learned Sessions Judge framed

the charge against the accused for the offences stated above.

The prosecution in all examined eighteen witnesses as PWs.1

to 18, got marked twenty documents as per Exs.P1 to P20

and got identified material documents as per M.Os.1 to 13.

Thereafter, the statement of appellant/accused as required

under Section 313(1)(b) Cr.P.C. is recorded. The accused

denied the circumstances appearing against him in the

evidence of prosecution witnesses, the accused has not

chosen to lead any defence evidence and after hearing the

arguments, the learned Sessions Judge has passed the

impugned judgment of conviction and order of sentence,

which is now assailed by the appellant/accused in this appeal.

6. Heard Sri. Prashant S.Kadadevar, learned counsel

for the appellant and Smt. Girija Hiremath, learned HCGP for

respondent/State.

7. Learned counsel for the appellant/accused argued

that the impugned judgment of conviction and order of

sentence is illegal and not based on evidence on record. The

trial court has not properly appreciated the report of scientific

officer and the evidence of Dr.Kamalalmma/PW.14. It is

alleged that false allegations are made against the

appellant/accused. There are material contradictions in the

evidence of prosecution witnesses. The theory of prosecution

that the appellant/accused asked the victim girl to bring the

brandy bottle, cannot be believed at all. Independent

witnesses are not examined. Admittedly, when other children

were playing at the place of offence, why the mother of the

victim only came to rescue her daughter and even the

complainant can scream and seek for anybody's help. PW.10

- Chilagodu Basavaraj has turned hostile to the case of the

prosecution, wherein he has denied that victim came to his

shop and purchased the brandy bottle. Therefore, the trial

court has not appreciated the evidence of prosecution

witnesses in proper perspective. The sentence imposed on

the appellant/accused is exorbitant. Therefore, learned

counsel prayed to set aside the judgment of conviction and

order of sentence.

8. Learned HCGP argued that the trial court has

appreciated the evidence of prosecution witnesses in proper

perspective. The evidence of medical officer and FSL report

prove the charge against the appellant/accused. There are no

reasons assigned to disbelieve the statement of witnesses

examined on behalf of the prosecution. There are minor

contradictions and inconsistencies in the evidence of the

prosecution witnesses. But the same are bound to occur, as

the witnesses are giving evidence after lapse of a time. There

are no material contradictions and inconsistencies found in

the evidence of prosecution witnesses. On the other hand,

there is corroboration in the evidence of each prosecution

witnesses with regard to the charge leveled against the

appellant/accused. Hence, she prayed to dismiss the appeal.

9. I have perused the judgment of the trial court

and other material produced before the court.

10. The learned Sessions Judge has raised five points

for consideration. The learned Sessions Judge found that the

victim is aged about 08 years. Therefore, the ingredients of

the provisions of POCSO Act are attracted. The Sessions

Judge considering the evidence of PW.1/mother of the victim,

PW.2 - victim, PW.12/Head Master, held that victim was

studying and she is aged about 08 years as per Ex.P15 -

School Certificates of the victim issued by the school. It is

evident from Ex.P15 that the date of birth of victim is

05.09.2006. It is observed by learned Sessions Judge that

the evidence of PW.1/mother of the victim is reliable, as she

found the victim weeping near hotel of appellant/accused and

further, she saw the incident and rescued her daughter/PW.2.

Hence, she lodged the complaint. The learned Sessions Judge

also considered the evidence of PW.2 - victim, who has also

stated about the incident. PW.2 also admitted that she has

given statement under Section 164(3) of Cr.P.C. as per

Ex.P5. The Sessions Judge has also stated both PWs.3 and 4,

have supported the prosecution regarding drawing of spot

panchanama as per Ex.P4 respectively. Though other

witnesses have turned hostile, the learned Sessions Judge

has relied on the evidence of PW.13 -Dr.B.Shivakumar and

PW.14 - Dr.Kamalamma who have clearly stated that when

PW.2/victim was examined, they found injuries on her. The

learned Sessions Judge has also considered the evidence of

investigating officer. Further, the learned Sessions Judge has

relied on the decisions rendered by the Hon'ble Supreme

Court and this court and held that the prosecution has proved

its case beyond all reasonable doubt and convicted the

appellant/accused for the above stated offences.

11. I have perused the evidence on record and

re-appreciated the same.

12. It is evident that PW.1- Smt. B.Kariyamma is the

mother of PW.2/victim. PW-1 has stated that the victim is her

daughter and victim is studying in 3rd standard. Prior to one

year from the date of the incident, she went for work to a

land at Talakl village and PW.2/victim who is her daughter

was in the house. PW.1 returned to the house around

07:00 p.m. But she does not find her daughter in the house,

then she started searching her daughter. Subsequently, she

has waited upto 08:00 p.m. for return of her daughter to the

house. Then again she went in search of her. Thereafter, she

heard the weeping sound of her daughter/PW.2 from the

hotel of appellant/accused and she found that

appellant/accused was sleeping on her daughter/PW.2 and

PW.1 pushed the accused and procured her daughter. The

appellant/accused threatened PW.1 that if she disclose the

incident to anybody, he will take away their life. PW.2

informed her mother/PW.1 that the accused lured her in the

guise of giving chocolate and committed sexual intercourse

on her. PW.1 found that there is swelling in private part of

PW.2/victim girl and she has sustained some injuries. Then

PW.1 lodged the complaint. PW.1 also supported the spot

panchanama/Ex.P4. It is suggested by the learned counsel

for the appellant/accused during cross-examination to PW.1

that she has got financial transaction with the

appellant/accused and she used to take alcohol with the

appellant/accused, but she denied the said suggestion. It is

suggested in the cross-examination that in order to get

compensation from the Government, in this type of cases,

she has filed the false case against the appellant/accused,

but she has denied said suggestion. Except these

suggestions, there is nothing helpful to the appellant/accused

is elicited from the cross-examination of PW.1.

13. PW.2 - victim girl has stated that she is aged

about 08 years. The court cannot simply believe the evidence

of child witness, as there is possibility of tutoring the child

witness by others. As per section 118 of the Indian Evidence

Act, 1872, all persons shall be competent of testify unless the

Court considers that they are prevented from understanding

questions put to them or from giving rational answers to

those questions, by tender years, old age, disease, or any

other cause of the same kind. As per the said provision, the

courts to verify whether the witness is competent to testify.

It appears the learned sessions judge has ascertained

competency of PW.2/victim girl and her evidence was

recorded in the year 2017. The incident occurred in the year

2015. As on the date of giving evidence, PW.2 is aged around

10 years. PW.2 stated that she was playing with her friends

near Yallamma temple. The appellant was sitting there and all

the friends of PW.2/victim went away. It was about 08:00

p.m. the appellant/accused took PW.2 to a room and asked

her to bring brandy bottle, then he did not leave her to go

home, the appellant/accused slept on her and he closed her

mouth with his hands, then her mother/PW.1 came and

pushed the accused and procured her. PW.2 also stated that

because of the act of the accused, she got a pain in her

private part. Then it was informed to the villager and on the

next day, the appellant/accused left the shop. Then she was

taken to hospital. PW.2 has given her statement under

Section 164 of Cr.P.C. before the Judicial Magistrate as per

Ex.P5. In the cross-examination, nothing is elicited from her

evidence. Further, PW.2 stated that she will not go with any

unknown persons. She also stated that accused used to sell

meals in his hotel. PW.2 stated that her mother/PW.1 also

knew him very well as she would go the hotel of

appellant/accused for taking breakfast and meals. It is

suggested to her that she fell down on the ground, while she

was playing and sustained injuries, which she has denied. So

evidence of PWs.1 and 2 corroborates with each other.

Absolutely there is nothing to show that they are deposing

falsely.

14. PW.3 - Manjunatha is a witness for Ex.P4/spot

panchanama. PW.3 stated that Dy.SP. called him for drawing

the panchanama near the hotel of appellant/accused stating

that rape was committed by appellant on PW.2/victim. PW.3

has gone to the place of offence, where spot panchanama

was drawn as per Ex.P4. PW.1 shown the scene of offence

and Ex.P4 was drawn. PW.3 signed Ex.P4 and he also

identified Exs.P2 and 3/photos. He has also signed

Ex.P6/property seizure memo. Nothing is elicited from the

cross-examination of PW.3. The evidence of PW-3 also

corroborates with the evidence of PWs.1 and 2.

15. PW.4 - Channanaik has stated that the accused

was running the hotel. Dy.SP called him and asked him to

come near the hotel for conducting spot panchanama, where

the sexual assault took place on PW.2/victim and

panchanama drawn as per Ex.P4. PW.2 signed both Exs.P4

and P6. There is nothing elicited from his cross-examination

which could help the accused.

16. PW.5 - Veeresh has stated that he is having the

hotel near the hotel of appellant/accused. But he has not

supported the case of the prosecution.

17. PW.6 - Vijayakumar and PW.7 - Sunithamma are

having hotel near the hotel of appellant/accused. May be

because of the appellant/accused having hotel, they have not

supported the case of the prosecution.

18. PW.8 - Nagaraj is another circumstantial witness

who has not supported the case of the prosecution.

19. PW.9 - E.T. Nagaraj is working as Assistant

Engineer in PWD Department and he has stated about

preparing sketch map as per Ex.P11.

20. PW.10 Basavaraj is the owner of Egg-rice hotel.

He has also not supported the case of the prosecution.

21. PW.11 - Jagaluru Kotresh, who is working as PDO

stated about the appellant/accused running the hotel in the

scene of offence place and he has issued a letter dated

21.10.2015 as per Ex.P14.

22. PW.12 - S.M.Nagabhushnaiah, who is working as

Teacher in Malleshwara Higher Primary School, has issued

the study certificate as per Ex.P15. There is nothing in the

cross-examination to disbelieve his evidence.

23. PW.13 - Dr. Shivakumar B, who has examined

the accused.

24. PW.14 - Dr. Kamalamma, Medical Officer, who

has examined PW.2/victim has issued the certificate as per

Ex.P17. PW.14 has stated that there was a pain in abdominal

pain in genitals of victim/PW.2 and there is tenderness

present over the left iliac region. There was scratch mark on

both the chests and also on the back side of the body as per

Ex.P17. Further PW.14 stated that labia minora is swollen and

reddish in colour and small abrasion present over the left

side. Hymen is reddish in colour and abrated. The Vaginal

swab was collected and sent for chemical examination. On

the basis of report of FSL, the doctor has stated that there is

no sign of vaginal intercourse. But in her cross-examination,

she has denied the suggestion put to her that there is

possibility that PW.2/victim girl might have sustained injury

to her private part, while riding the cycle and falling on the

ground, but PW.14 has denied the said suggestion. PW.14

has denied the suggestion that no sexual assault took place

on the victim. PW.14 denied the suggestion that the contents

of Ex.P17 are not true. So this medical evidence also

supports the case of the prosecution.

25. PW.15 - H.M.Veerabhadraiah, is working as Head

constable. He has stated that he has taken M.Os.1, 4 and 13

to the FSL Office.

26. PW.16 - Kum. Renuka Kavadi is working as a

Women police constable, who brought PW.2 for examination.

27. PW.17 - L.Ramanaika, Police Sub-Inspector, who

has registered the case against the appellant/accused. PW.17

stated that, he found the appellant/accused has consumed

poison and admitted to the hospital.

28. PW.18 - Rudragowda, Investigating Officer, who

has stated about conducting the investigation and recording

the statement of witnesses. Though he was cross-examined,

but nothing is elicited from his cross-examination.

29. There is no suggestion put to the prosecution

witness on behalf of appellant/accused that PW.1 has filed

this case falsely implicating the appellant/accused in order to

extract the money from the accused or Government. It is also

evident from Ex.P5/the Statement of PW.2/victim recorded

under Section 164 of Cr.P.C. wherein PW.2/victim has stated

about the sexual assault on her by the appellant/accused.

She has also stated that PW.1/her mother has informed the

alleged act of appellant/accused to his wife, son-in-law and

they have abused and quarreled with the appellant/accused

in this regard. So on considering the entire oral and

documentary evidence, it is evident that the

appellant/accused has committed the sexual assault on

PW.2/victim and also committed rape on her.

30. The learned Sessions Judge has rightly observed

that simply because the hymen was intact, no injuries found

on the private part of victim and or seminal stains is present,

or slight degree of penetration with or without ejectment

constitutes a rape. The learned Sessions Judge rightly

relied upon the following decisions of the Hon'ble Supreme

Court and the same is as under:

(a) Crl.A.No.133/2016 (RAMESH RAJAGOPAL v. DEVI

POLYMERS PVT. LTD.,)

(b) Crl.A.No.1706/2009(N. RAMEGOWDA v. E. BHOPAL)

(c) (1992) 3 SCC 204(MADAN GOPAL KAKKAD v.

NAVAL DUBEY AND ANOTHER;

(d) 2007 (3) Crimes 124(YADU KUMAR PATEL v.

STATE OF CHHATTISGARH);

(e) 2005 Crl.L.J 2676 (STATE OF KARNATAKA v.

REVANNAIAH)

(f) 2005 Crl.L.J 2687 (DILAWARSAB ALISAB JAKATI v.

STATE OF KARNATAKA BY ITS STATE.

The learned Sessions judge has rightly found that the

statement of PW.2/victim alone is sufficient to believe the

case of the prosecution and the same inspires confidence in

her. There is no necessity of corroboration to her evidence

by other witness.

31. It is the settled principle of law that the

corroboration is a rule of law and not rule of prudence. If the

testimony of sole prosecutrix or victim is found without any

material contradiction or inconsistency, it inspires the

confidence in her testimony, then it is sufficient to prove the

guilt of the appellant/accused. The learned Sessions Judge

has rightly relied upon the following decisions of Hon'ble

Supreme Court as under:

(a) In the case of State of Himachal

Pradesh Vs. Sanjay Kumar @ Sunny - 2016

(4) Crimes 424 (SC);

(b) In the case of Madho Ram and another

Vs. State of U.P. - AIR 1973 SC 469;

(c) In the case of State of Himachal Pradesh

Vs. Sanjay Kumar alias Sunny - (2017) 1

SCC (Crimes) 648;

(d) In the case of State of Punjab Vs.

Ramdev - AIR 2004 SC 1290;

32. Therefore, keeping in mind these principles, if the

evidence of prosecution witnesses, medical evidence and

evidence of investigating officer are considered, then it is

evident that the appellant/accused has committed the alleged

offences. Though there may not be complete penetrative

sexual assault, but the victim has sustained injuries on her

private part and there is an evidence regarding about

penetrative sexual assault over private part on the

PW.2/victim. PW.14 - Dr.Kamalamma stated that labia

minora is swollen and reddish in colour and small abrasion

present over the left side as per Ex.P17. If the oral evidence

of PW.2/victim is considered and even considering statement

of appellant/accused recorded under Section 313(1)(b)

Cr.P.C., before court, it is evident that the accused has not

stated anything as to why he has been implicated in this

case. Simply denying the evidence of prosecution witnesses,

he cannot probabalise his defence. Further, he has not taken

any defence denying the incriminating circumstances

appearing against him. It is also stated that there are

inconsistencies in the suggestions made to PWs.1 and 2.

Though there are some contradictions and inconsistencies in

the evidence of prosecution witnesses, but they are not

material contradictions or material inconsistencies. Some

minor discrepancies are bound to occur. As in all the cases,

one cannot except the witnesses to depose like a parrot like

story. Therefore, considering the oral and documentary

evidence and medical evidence, it is evident that PW.2/victim

was aged about 08 years at the time of incident and now she

is aged about 12 years and she was subjected to sexual

assault and accused committed rape on her. Section 375 of

IPC states that, a man is said to commit 'rape' who, except in

the case hereinafter excepted, has sexual intercourse with a

woman.

33. Viewed from any angle, the judgment of

conviction and order of sentence passed by the learned

Sessions Judge cannot be stated as illegal, perverse and not

based on sound principles of law regarding the appreciation

of evidence in these type of cases. Hence, I do not find any

error apparent on the face of the impugned judgment of

conviction and order of sentence and no need to interfere

with the same.

34. Sofar as imposing sentence on the

appellant/accused is concerned, the offence under Sections

376(2)(f) of IPC and for the offence under Sections 3 and 4

of POCSO Act states that for penetrative sexual assault, prior

to substitution by Act, 2022 of 2018, punishment prescribed

is rigorous imprisonment of either description for a term

which shall not be less than seven years, but which may

extend to imprisonment for life, and shall also liable to fine.

35. Accordingly, learned Sessions Judge has imposed

sentence of imprisonment for a period of 07 years and shall

pay fine of Rs.50,000/-, in default to undergo simple

imprisonment for one year for the offence punishable under

Sections 376(2)(f) r/w Sec.4 of POCSO Act, 2012. The

District Legal Services Authority was directed to deposit the

fine amount of Rs.50,000/- to victim under the Victim

Compensation Act, as compensation, in default of payment of

fine to undergo simple imprisonment for one year.

36. Learned counsel for the appellant/accused argued

that the learned Sessions Judge has not made any enquiry

regarding the status and financial condition of the

appellant/accused. On the other hand, the accused was

running a small hotel having minimum business and he is not

financially sound person. Learned counsel also argued that

the appellant has already served the sentence and he is in

custody. The appellant/accused was arrested on 24.10.2015.

Practically the appellant has served the sentence of

imprisonment. Therefore, he requested the court to reduce

the sentence of fine amount imposed on appellant/accused.

Ofcourse, Indian Penal Code also provides for imposition of

fine amount. Learned counsel for the appellant also stated

that the appellant is not in a position even to file the appeal

and this file is entrusted to him through legal services

authority. He is not in a position to pay the fine amount. It

appears that the learned Sessions Judge considered the age

of the appellant and amount of compensation of Rs.50,000/-

is awarded and directed the Legal Service Authority to pay

the said amount. Again, he has stated that total fine of

Rs.50,000/- was imposed on appellant/accused, out of which

a sum of Rs.25,000/- is directed to be given as compensation

to victim. The appellant/accused has to give compensation as

per Section 357 Cr.P.C. Ofcourse, no record is produced

regarding financial status of the accused. Looking to the

nature of offences and the period of custody he was in jail, I

am of the opinion that considering the financial status of the

appellant, in my considered view, the fine of

Rs.50,000/- appears to be excessive. Therefore, the

appellant is sentenced to pay a fine of Rs.25,000/- and out of

that a sum of Rs.15,000/- shall be paid to the victim as

compensation and remaining amount of Rs.10,000/- shall be

remitted to State and in default of payment of fine of

Rs.25,000/-, he shall undergo imprisonment for a period of

three months.

37. Accordingly, the following:

ORDER

(i) Appeal is allowed in part.

(ii) The judgment of conviction and order of sentence

passed by learned Sessions Judge in Spl.C. No.02/2016 dated

15.12.2018 convicting the accused for the offence punishable

under Section 376(2)(f) IPC r/w Section 4 of POCSO Act, is

hereby confirmed.

(iii) Further the judgment and order of sentence

imposing rigorous imprisonment for a period of 07 years on

the appellant/accused is also confirmed.

(iv) The order of sentence of fine imposed on the

appellant to pay a fine of Rs.50,000/- is modified and

appellant is sentenced to pay a fine of Rs.25,000/-. Out of

which, a sum of Rs.15,000/- shall be paid to the victim as

compensation and Rs.10,000/- shall be remitted to the State.

In default of payment of fine amount, he shall undergo three

months simple imprisonment.

(v) Pending Interlocutory applications, if any, stands

disposed of.

(vi) Send back the records to the trial court.

SD/-

JUDGE

HJ