Karnataka High Court

Sri Marlinga @ Mariyappa vs State Of Karnataka on 3 February, 2022

Bench: K.S.Mudagal

                                   Crl.A.No.1559/2018

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF FEBRUARY 2022

                       BEFORE

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

          CRIMINAL APPEAL No.1559/2018
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BETWEEN:

SRI MARLINGA @ MARIYAPPA
S/O LATE SHIVAMURTHY
AGED ABOUT 21 YEARS
R/AT NEAR CHIKKABANAVARA
JALAHALLY CROSS
BANGALORE-560 045
PERMANENTLY R/AT
INGALAGI VILLAGE
BIMANAGARA, CHITTAPURA TALUK
GULBARGA DISTRICT-98                     ...APPELLANT

(BY SRI PRATHEEP K.C., ADVOCATE)

AND:

STATE OF KARNATAKA
BY CIRCLE INSPECTOR OF POLICE
HASSAN CITY CIRCLE
HASSAN DISTRICT
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560 001                      ...RESPONDENT

(BY SRI SHANKAR.H.S, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF SENTENCE DATED 09.08.2018 PASSED BY THE
ADDITIONAL DISTRICT & SESSIONS JUDGE, SPECIAL JUDGE,
HASSAN IN SPECIAL CASE NO.65/2014.
                                          Crl.A.No.1559/2018

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     THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:

                    JUDGMENT

Aggrieved by his conviction and sentence for the

offences punishable under Sections 366, 343 and 376 of

IPC and Section 6 of the Protection of Children from

Sexual Offences Act, 2012 ('POCSO Act' for short), the

accused in Special Case No.65/2014 on the file of

Additional District & Sessions Judge, Special Judge,

Hassan has preferred the above appeal.

2. The appellant was prosecuted in Special Case

No.65/2014 for the aforesaid offences on the basis of the

charge sheet filed by Hassan Extension Police Station.

3. PW.1 is the father of the complainant, PW.2 is

the victim girl. PW.10 is the maternal uncle of PW.2.

During the year 2014, PW.2 was staying in BCM Hostel,

Hassan studying diploma. She went missing from the said

hostel from 05.03.2014. PW.1 filed missing complaint as

per Ex.P1. In the complaint, he suspected one Manja, Crl.A.No.1559/2018

Murali and Riya as cause for missing of PW.2. He claimed

that the victim was aged 17 years.

4. On the basis of such complaint, PW.19

Sub-Inspector of Police of Hassan Extension police station

registered the first information report as per Ex.P20 for

the offence punishable under Section 363 of IPC. PW.16

and CW.38 were deputed to trace the victim PW.2. They

said to have traced PW.2 and the appellant on the basis

of their call detail records on 21.03.2014 in Ingalagi,

Kalaburagi District in the parental house of the accused.

PW.16, PW.10 and CW.38 after tracing the victim brought

her back and produced her before PW.19.

5. PW.19 got produced PW.2 before the Child

Welfare Committee, Hassan. On recording the statement

of PW.2 and the accused, PW.19 incorporated the

offences of kidnapping, sexual abuse punishable under

the Indian Penal Code and the POCSO Act. After

conducting the spot mahazar and getting the accused

medically examined, PW.19 handed over the further

investigation to PW.20. PW.20 got PW.2 medically Crl.A.No.1559/2018

examined, got her statement under Section 164 of

Cr.P.C., recorded through judicial Magistrate, conducted

further investigation and filed the charge sheet.

6. The case of the prosecution is as follows:

That victim was aged 17½ years. The appellant

befriended her by face book chatting and kidnapped her

on 04.03.2014 at 11.00 a.m. from Hassan Bus stand,

took her to his aunt's house in Bengaluru. From there

luring her of love and marriage took her to his parental

house in Ingalagi village of Gulbarga District. The

appellant married her on 19.03.2014 in Nagamma-

Yellamma temple. After such marriage upto 21.03.2014

he kept her in his parental house and committed

repetitive penetrative sexual assault on her, thereby he

has committed the offence punishable under Section 366,

376 and Section 6 of the POCSO Act.

7. The trial Court on taking cognizance tried the

appellant in Spl.Case No.65/2014. On conducting such

trial by the impugned judgment, the trial Court convicted

the appellant for the offences punishable under Section Crl.A.No.1559/2018

366, 343 and 376 of IPC and section 6 of POCSO Act.

Further by the impugned order, the trial Court sentenced

the appellant as follows:

Convicted for Fine the offence Sl. Sentence of amount Default punishable No. imprisonment in sentence under Rupees Section 1 366 of IPC Simple 2,000/-

Imprisonment of 3 years 2 343 of IPC Simple -

                      Imprisonment               Simple
                       of 6 months               imprisonment
                             -                   of 3 months in all
 3    376 of IPC          Simple      5,000/-
                      Imprisonment
                       of 7 years -
 4    6 of POCSO         Rigorous      5000/-
      Act             Imprisonment
                        of 10 years

8. The trial Court relying on the evidence of

PW.13 and Ex.P18 held that as on the date of the offence

PW.2 was aged below 18 years. The trial Court held that

the allegations of the kidnapping of victim, wrongful

confinement and sexual assault were proved by the

evidence of PW.2- the victim, PW.1 her father, PW.10-her

maternal uncle and PW.14 doctor and Ex.P4 the medical

examination report of the victim.

Crl.A.No.1559/2018

Submissions of Sri K.C.Pratheep, learned counsel for the appellant questioning the correctness of the impugned judgment and order are as follows:

9. To invoke the provisions of POCSO Act, the

victim should be below 18 years. PW.1 did not speak

about the age of the victim. As per the evidence of

PW.13 and his report Ex.P18 the age of the victim was

above 17 years and below 18 years. He claims to have

arrived at the conclusion based on the radiological report,

but the said radiological report was not produced. There

was no ossification test report. Even in such cases the

marginal error of plus or minus 2 years has to be given

in arriving the conclusion. As per the prosecution itself,

the victim was studying in Diploma. Therefore, there was

no difficulty for the Investigating Officer to collect her

school certificate in proof of date of birth. The benefit of

such suppression of material fact shall be given to the

accused. Even in the absence of denial by the accused in

the cross examination of the witnesses, the prosecution

has the burden of proving the age of the victim beyond

reasonable doubt. The evidence on record shows that the Crl.A.No.1559/2018

victim herself befriended the appellant and moved with

him from Hassan to Bengaluru and from Bengaluru to

Ingalagi and stayed with him for a long time. Nowhere

she has raised alarm or protest. Under such

circumstances, the trial Court is not justified in holding

that it was the case of kidnapping, wrongful confinement

and rape. According to the complainant herself, her age

was above 17 years and the alleged sexual act took place

after marriage. That does not attract Section 376 IPC.

10. In support of his submissions, he relies upon

the following judgments:

i) Gulu Santra vs. State of West Bengal1

ii) Madan Gopal Kakkad vs. Naval Dubey and

another2

iii) Rajak Mohammad vs. State of Himachal

Pradesh3

iv) State of Karnataka vs. Narasimha4

v) Ram Vijay Singh vs. State of Uttar Pradesh5

2020 SCC On line Cal 980

(1992)3 SCC 204

(2018)9 SCC 248

Crl.A.No.974/2011 (D.D.12.12.2014)

2021 SCC Online SC 142 Crl.A.No.1559/2018

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Submissions of learned HCGP for justifying the

impugned judgment and order are as follows:

11. The accused has not disputed the age of the

victim in the evidence of the prosecution witnesses.

Therefore, the trial Court has rightly held that she was

below 18 years. The overtacts of the appellant were

proved by the cogent and consistent evidence of the

victim girl. Her evidence was corroborated by the

evidence of PW.1, PW.14 and 18. Under Sections 29 and

30 of the POCSO Act, there is a presumption of guilt of

the accused. Accused did not rebut the said presumption.

Even assuming that the victim accompanied the appellant

without resistance, minor's consent is no consent in the

eye of law. Therefore, the impugned judgment and order

does not warrant interference of this Court.

12. In the light of the rival submissions and the

material on record, the question that arises for

consideration is "whether the impugned order of

conviction and sentence passed against the appellant is

sustainable in law?"

Crl.A.No.1559/2018

Analysis:

13. To sustain the conviction under Section 6 of

the POCSO Act, the prosecution is required to first prove

that the victim was aged below 18 years. To sustain the

charges under Sections 366, 343 and 376 of IPC, the

prosecution has to prove that the appellant has

committed sexual intercourse.

Regarding the age of the victim and charge under Section 6 of the POCSO Act.

14. The Investigating Officer has filed charge

sheet and the trial Court tried the accused for the offence

punishable under Section 6 of the POCSO Act. The POCSO

Act was enacted to protect children from sexual offences

etc., Therefore to invoke the provisions of POCSO Act, the

victim should be a child. The prosecution was bound to

prove beyond reasonable doubt that PW.2 was aged

below 18 years.

15. In the complaint Ex.P1, at the first instance

PW.1 gave the age of the victim as 17 ½ years. In his

entire chief-examination PW1 nowhere he whispers about Crl.A.No.1559/2018

the age of PW.2 or her date of birth. He maintained such

unexplained silence in his evidence. PW.2 in her chief-

examination stated that in March 2014 she completed 16

years of age and stepped into 17 years. Whereas, the

father of the victim in his complaint states that she was

17 ½ years old.

16. The evidence of PWs.1 and 2 and other

evidence on record shows that PW.2 was studying in M.V.

Polytechnic College, Hassan. Therefore her school records

containing her date of birth would have been better

record of proof of her age. However, for the reasons best

known to the Investigating Officer he does not collect any

such school records.

17. It was contended that in the cross-examination

of PW.2 the age of the victim was not disputed and the

fact of minority is further corroborated by the evidence of

Doctor PW.13. In such cases, the prosecution has the

burden to prove its case beyond reasonable doubt. The

silence of the accused in that matter itself does not

amount to proof.

Crl.A.No.1559/2018

18. In similar case in para No.44 of the judgment

in Gulu Santra's case referred to supra, held as follows:

"44. Curious enough to note that nothing was there in the cross-examination of the witnesses challenging the age of the victim girl. In the F.I.R. victim was described to be of twelve (12) year old girl, and in course of evidence victim, declared her age as twelve (12) years. Both the parents of victim girl are, however, silent as regard the age of the victim girl. Though the accused/appellant did not challenge the age of victim girl during the trial, but he cannot be estopped from challenging the same during the appeal for the same being question of law. Even in absence of challenge being raised, disputing with the age of victim girl in all fairness, it is incumbent upon the prosecuting agency to furnish something in proof the age of victim girl at the time of occurrence."

(Emphasis supplied)

19. In the light of the above judgment, the

accused not contraverting the evidence of PW.2 about her

age itself does not amount to proof of the age by the

prosecution. The other evidence relied on by the trial

Court was that of PW.13 and his report Ex.P18. PW.13

says that he examined PW.2 on 25.03.2014 and as per

Radiology report her age was 17 to 18 years. He does not

say that he is a Radiologist. He admitted in the cross-

examination that, in his report in Ex.P18 there is no Crl.A.No.1559/2018

reference to X-ray films. Neither Radiology report nor

X-ray films were produced along with the charge sheet.

20. PW.20 the Investigating Officer states that

along with Ex.P.18 he has not collected the Radiology

report. In such case whether medical experts

report/Ex.P.18 would be of any value is the question.

21. The larger bench of the Hon'ble Supreme

Court in para 34 of the Judgment in Madan Gopal

Kakkad's case referred to supra in this regard held as

follows:

"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.

(Emphasis supplied) Crl.A.No.1559/2018

22. The above judgment shows that unless the

expert witness places before the Court all the materials

conclusive of the age which induced him to come to the

said conclusion cannot be relied as evidence of facts.

Apart from that the age determined by PW.13 is not

accurate. He says that her age is between the range of 17

to 18 years.

23. The Division bench of this Court in para No.20

of the judgment in Narasimha's case referred to supra

has held that the law is fairly well settled that assessment

of age by the medical officer is subject to margin of error

of two years and such benefit shall be given to the

accused.

24. The Hon'ble Supreme Court in para No.9 of

the judgment in Rajak Mohammad's case referred to

supra in this regard held as follows:

"9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the Crl.A.No.1559/2018

prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused."

(Emphasis supplied)

25. In the light of the aforesaid judgments of this

Court, Hon'ble Supreme Court and the fact that Ex.P18

was not supported by any technical data to arrive at the

conclusion about age, it has to be held that medical

evidence was not reliable in that regard.

26. In the light of the aforesaid facts and

circumstances firstly, the prosecution did not prove

beyond reasonable doubt that PW.2 was aged below 18

years. Secondly, even if the expert's evidence is

considered, the benefit of margin of error should go to

the accused. Once it is held that PW.2 being below 18

years was not proved beyond reasonable doubt, Section 6

of the POCSO Act is not applicable.

27. The presumption under Sections 29 and 30 of

the POCSO Act is with regard to the commission of the

offence and culpable mental state of the accused and not

with regard to the age of the victim. Once the fact of Crl.A.No.1559/2018

victim being child is not proved, POCSO Act is not

applicable. Then the question of raising presumption

under those provisions or convicting the appellant for the

offence punishable under Section 6 of the POCSO Act

does not arise. Therefore conviction and sentence under

the POCSO Act are unsustainable.

Regarding the offence under Sections 366, 343 and 376 of IPC.

28. PW.2 in her chief-examination stated that the

appellant befriended her through Face book and induced

her to join him at Hassan bus-stand. She further deposed

that in Hassan bus-stand he forced her to go to

Bengaluru, therefore she accompanied him. It is already

held that she was not a minor or aged below 18 years.

She herself stated that she was in BCM hostel. The

evidence on record shows that there were some rules in

the hostel for leaving the hostel premises without prior

permission of the authority. PW.2 left the hostel without

intimating her parents and hostel authority.

Crl.A.No.1559/2018

29. PW2 further says that from Hassan to

Bengaluru, Bengaluru to Ingalagi, all journeys were due

to pressure of the appellant and subsequent physical

relationship between them was also forced one. PW.2

says that she was having mobile phone. Even the

evidence of roommate PW.5 shows that PW.2 was

chatting with others on mobile phone. PW.5 further says

that PW.2 left the hostel and did not return.

30. If PW.2 was taken by force there was ample

opportunity to her to resist or raise alarm to seek the help

of others. Her evidence shows that they traveled in public

transport. Her evidence further shows that she lived in

the house of aunt of the accused and parental house of

accused at Bengaluru and Ingalagi. She could have

revealed about the force of the accused. The marriage

said to have taken place in a temple i.e., public place.

There also she has not resisted or raised any alarm.

31. Under the aforesaid circumstances, the trial

Court was not justified in holding that the appellant

kidnapped her forcibly and unlawfully confined her in his Crl.A.No.1559/2018

parental house. As per prosecution itself, after their

marriage on 19.03.2014, the appellant sexually cohabited

with PW.2 from 19.03.2014 till 21.03.2014. The

deposition of PW.2 also shows that the said sexual

relationship was after the marriage.

32. All along from the date of missing till she was

traced by the police, she has not informed at least her

family members about the offences against her. In the

similar circumstances the Hon'ble Supreme Court in para

No.10 of the judgment in Rajak Mohammad's case

referred to supra held as follows:

"10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."

(Emphasis supplied)

33. In this case also, the prosecution has not

succeeded in proving that PW.2 was minor as on the date

of offence. The evidence on record leads to the inference

and probability of the prosecutrix/PW.2 being a Crl.A.No.1559/2018

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consenting party to the sexual cohabitation. PW.2 in her

statement before the Magistrate under Section 164 Cr.PC

as per Ex.P7 at the earliest point of time has not imputed

any forcible sexual intercourse by the appellant. She

further stated that she befriended on Face book and

developed liking for him and after the marriage he had

physical relationship with her.