Sudhir S/O Mahesh vs The State Of Karnataka
2022 Latest Caselaw 1929 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL APPEAL NO.200042/2016


BETWEEN

SUDHIR S/O MAHESH
AGE:30 YRS, OCC:DRIVER
R/O MALKHED, TQ:SEDAM
DIST:KALABURAGI
                                         ...APPELLANT

(BY SRI ISWARAJ S. CHOWDAPUR, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH MALKHED PS
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI
                                       ...RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

   THIS CRL.A. IS FILED U/S. 374 OF CR.P.C PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT
DATED:11.12.2015, PASSED BY THE HON'BLE II ADDL.
SESSIONS JUDGE, IN SPL.CASE(POCSO) NO.21/2014,
AND ACQUIT THE APPELLANT, IN THE INTEREST OF
JUSTICE.
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     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

Heard the learned counsel for the appellant and the

learned High Court Government Pleader for the respondent

- State and perused the records.

2. The accused, who has suffered an order of

conviction in Special Case (POCSO) No.21/2014 on the file

of II Additional Sessions Judge, Kalaburagi vide judgment

dated 11.12.2015 has preferred this appeal.

3. Brief facts of the case are as under:

A complaint came to be lodged by the victim girl with

Malkhed police station on 14.03.2014 against the accused,

which was registered in Crime No.31/2014 for the offences

punishable under Sections 450 and 376 of the Indian Penal

Code, 1860 (for short 'IPC') and under Sections 4 and 6 of

the Protection of Children from Sexual Offences Act, 2012

(for short 'POCSO Act'). In the complaint, it is contended

that the victim girl was studying in 4 th Standard and her

parents have five daughters and she is the 3rd daughter.

Her mother is a vegetable vendor and after completing her

business, she comes late in the night and therefore,

without locking the door from inside, the daughters used

to sleep in the house. On 13.03.2014, as usual, the victim

girl and her sisters after finishing the dinner closed the

door without locking it from inside and had gone to sleep.

At about 11.00 p.m., she got up from the sleep as she felt

that somebody is pulling her clothes. When she got up,

she found that it was the accused who was pulling her

clothes. She resisted for the same, but, the accused

gagged her mouth and committed forcible sexual

intercourse with her. She tried to escape away from his

clutches and ultimately, she raised alarm. At that

juncture, her elder sister Bhimabai got up. On seeing her,

the accused left her and ran away from the scene of

offence. She immediately revealed the entire incident to

her elder sister and her elder sister said that she will take

necessary action after her mother arrives. On 14.03.2014

at about 7.00 a.m., her mother returned to the house and

the victim girl and elder sister intimated the incident to

their mother. Thereafter, they visited the police station

around 10.00 a.m. and lodged the complaint seeking

action against the accused/appellant.

4. The police after registering the case,

thoroughly investigated the matter and filed charge sheet

against the accused for the aforesaid offences. During the

course of investigation, the accused was arrested on

14.03.2014 and was sent to judicial custody. The learned

Special Judge on receipt of the charge sheet, took

cognizance of the aforesaid offences and secured the

presence of the accused and framed charges. The accused

pleaded not guilty and as such, trial was held.

5. In order to prove the case of the prosecution,

prosecution examined in all 19 witnesses as PWs.1 to 19.

PW.5 is the victim girl and PW.7 is the elder sister of the

victim girl, who has seen the accused on the date of the

incident. PW.6 is the mother of the victim girl. The

prosecution also relied on 13 documentary evidence, which

were exhibited and marked as Exs.P1 to P13. The clothes

worn by the victim girl as well as the accused are seized

during the investigation and they were sent for FSL

examination and they were marked before the Court as

MOs.1 to 6.

6. On conclusion of the prosecution evidence, the

accused statement as contemplated under Section 313 of

Cr.P.C was recorded. The accused denied all the

incriminatory materials found against him in the

prosecution evidence. However, accused did not chose to

place his version on record by examining himself or filed

any written submissions on record as is contemplated

under Section 313(5) of Cr.P.C.

7. Thereafter, learned Sessions Judge heard the

parties in detail and after considering the material

evidence on record, passed an order of conviction,

convicting the accused for the aforesaid offences and

passed the following sentence:

"Accused is sentenced to undergo R.I. for twelve years and a fine of Rs.50,000/- for the offence punishable U/Sec.376(2) (i) of Indian Penal Code and in default to pay fine, he shall undergo simple imprisonment for six months.

Further accused is sentenced to undergo imprisonment for two years and fine of Rs.5,000/- for the offence punishable U/Sec.450 of Indian Penal Code and in default to pay fine, he shall undergo simple imprisonment for three months.

Both the sentences of confinement shall run concurrently.

           The    period   of     detention    undergone    by
     accused     as   an   under      trial   prisoner   during

investigation, enquiry and trial shall be set off as provided U/Sec.428 of Cr.P.C.

Further in the event of deposit of fine amount, rupees Fifty Thousand it is ordered to be disbursed to the prosecutrix as compensation and the amount shall be paid to the guardian with a condition to deposit it as Fixed Deposit in the name of minor till she attaining majority and to utilize the interest for her benefit."

8. Being aggrieved by the same, the accused is

before this Court in this appeal.

9. In the appeal, following grounds have been

raised:

x That the Judgment under appeal is against the established principles of law and facts of the case, hence it deserved to be set aside.

x That, the incident as per the case of the prosecution is took place in the house of victim, in a single room where four persons are slept in the night hours. It is most unnatural and improbable to believe that the accused committed rape on her.

x That, the daughter by name Totamma given a birth a child prior to marriage that the said Totamma is sister of victim girl. In this regard there is a quarrel took place between the mother of accused and PW-6 Basamma. Due to this enmity complainant and her mother a falsely implicated the accused person in the above case.

x That, there are material improvements in the evidence of PW-5 victim girl, the Court below failed to consider the same, That the stating that those improvements are not proved. reasoning given by the Court below are not

correct, hence the judgment under appeal liable to be set aside.

x It is further come on record that the police station is situated at a distance of 300-400ft. of the house of victim girl, but there is a delay in lodging the complaint and moreover the victim and her sisters keeping quite even after the incident without going to the police station, this conducts shows highly unnatural.

x That, the medical evidence will not cerebrate the version of PW-5. That, the time mentioned in the Ex.P-1 the incident took place at about 12.00noon. But the evidence on record shows that the incident took place in the night hours, which is contradictory one and Court below fails to appreciate the above said material contradiction.

x That, the Contents of the FSL report Ex.P-2 that SPERMATOZOA and SEMINAL stains were not detected in the items sent for examination.

x When there is two views are possible from the same set of facts the favorable view kindly be taken in favour of accused.

x There is a strong suspicious against the appellant, but it shall not take the place of proof. Hence appellants are ought to be acquitted instead of conviction.

10. Reiterating the above grounds, Sri Iswaraj S.

Chowdapur, learned counsel for appellant vehemently

contended that the learned Sessions Judge has not

properly appreciated the material on record and wrongly

convicted the accused for the aforesaid offences.

11. He further contended that it is highly

unimaginable that when five sisters are sleeping inside the

house, how can a person enter the house and commit

forcible sexual intercourse with one of the sisters being not

known to the other sisters is a question that has not been

properly considered by the Sessions Judge. He further

contended that the delay in lodging the complaint is also

not properly explained by the prosecution and the

accused/appellant has been falsely implicated in the case.

He also contended that in the event of this Court

maintaining the conviction of the appellant, a lenient view

may be taken and minimum sentence may be imposed.

12. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that the oral testimony of the victim girl, who has been

examined as PW.5 is sufficiently corroborated by the oral

testimony of PW.7, who is the elder sister of the victim

girl.

13. He further contended that PW.1 - Dr.Nivedita

who issued the report on medical examination vide Ex.P1

sufficiently corroborates the version of the victim girl and

in the absence of any previous enmity or animosity

between the accused and the victim girl's family, why

would the accused be falsely implicated in a matter of this

nature is a question that remains unanswere by the

defence and therefore, sought for dismissal of the appeal.

14. He further contended that no leniency can be

shown to the accused/appellant as he has entered the

dwelling house taking advantage of the helplessness of the

victim girl and committed a grave act of forcible sexual

intercourse with a minor girl of 12 years and therefore, the

sentence to be maintained.

15. In view of the rival contentions of the parties,

following points would arise for consideration:

1. Whether the prosecution has successfully established that the accused/appellant has committed the offences punishable under Sections 450 and 376(2)(i) of IPC and Sections 4 and 6 of the POCSO Act?

2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

3. Whether the sentence is excessive?

16. In the case on hand, the following charges

have been framed:

"1. That you accused on 13.3.2014 night at 11.00 P.M., in Malkhed Harijanwada within the limits of Malkhed PS. the offence, that you With an

intention to Commit committed house trespass by entering into the house of complainant name called Kum. Surekha when she was sleeping in her house along with her sister, used as a human dwelling with an intent to commit the offence and thereby committed an offence punishable U/Sec. 450 of I.P.C. and within the cognizance of this Court.

2. That you accused on the above said date time and place after entering into the house of complainant you accused by removing her clothes had forcible sexual intercourse with CW.1/ victimized girl on & often and thereby committed an offence punishable U/Sec. 376 (2) ) of I.P.C. and within the cognizance of this court.

3. That you accused on the above said date time and place knowing fully well that CW. 1/ Kum.Surekha is a minor aged about 12 years, you committed sexual intercourse on her by removing her clothes and put your penis in the vagina of the said girl, which said amounts "aggravated penetrative sexual assault" as defined U/Sec. 4 of the Protection of Children from Sexual Offence Act, punishable U/Sec.6 of the POCSO Act and within my cognizance.

And I hereby direct that you be tried by this court for the said charges."

17. In order to prove the said charges, the

prosecution mainly depend on the statement of the victim

girl. The victim girl is examined as PW.5. She deposed

before the Court in consonance with the complaint

averments referred to supra. She narrated before the

Court with graphic details about the incident that occurred

on the night of 13.03.2014 around 11.00 p.m. She has

specifically stated that the accused forcibly entered the

house taking advantage of the fact that the house was not

locked from inside as usual as her mother used to come

home late after finishing the vegetable business. These

aspects of the matter is known to the accused as he is the

neighbour of the victim girl. Further, the victim girl has

stated that she got up when she felt that somebody is

pulling her clothes. She noticed that it is accused who was

pulling her clothes and she tried to raise alarm, at that

juncture the accused gagged her mouth and committed

forcible sexual intercourse and some how she was able to

escape from the clutches of the accused and at that

juncture, her elder sister got up and on seeing her, the

accused ran away from the scene of offence.

18. PW.7 is the elder sister of the victim girl. She

has also supported the case of the prosecution. In the

cross examination of PWs.5 and 7, there is no useful

material elicited so as to disbelieve the version of the

victim girl or PW.7. In the absence of any previous enmity

or animosity, why would the victim girl falsely implicate

the accused in a matter of this nature is a question that

remains unanswered by the defence.

19. The incident was reported to the mother of the

victim girl on the next day morning at 7.00 a.m. when she

returned from the vegetable business. PW.7 also joined

PW.5 in narrating the incident. Thereafter, the victim girl

and her mother visited the police station and lodged the

complaint by about 10.00 a.m. Therefore, the contentions

urged on behalf of the appellant that there is a delay in

lodging the complaint cannot be countenanced in law. The

delay has been sufficiently explained in the complaint itself

as PW.7 told to PW.5 that they will wait for their mother to

return from vegetable business as it was late in the night

and thereafter, to take necessary action. After the

incident came to be narrated to the mother of the victim

girl, at about 10.00 a.m. they have visited the police

station and lodged the complaint. Therefore, the actual

delay, if any, to be taken is only three hours, which is

acceptable in the facts and circumstances of the present

case.

20. It is settled principle of law that every delay

will not be fatal to the prosecution. It is for the accused to

explain that the delay has been used by the prosecution or

the complainant in order to falsely implicate the accused

and thereby rights of the accused stood prejudiced. In the

case on hand, no such materials are forthcoming nor it is

the case of the accused that he has been falsely implicated

in the case by taking advantage of the delay.

21. Further, the accused is charged with offences

under Sections 4 and 6 of the POCSO Act. Therefore, the

prosecution enjoys the presumption as is available under

Section 29 and 30 of the POCSO Act. In order to rebut the

presumption available to the prosecution, accused was

bound to place such evidence on record whereby the

presumption gets rebutted.

22. In the case on hand, the accused except

denying the incriminatory materials put to him in the

prosecution evidence, he did not place his version about

the incident. Had he been falsely implicated, he should

have said so before the Court either by examining himself

or by placing such material evidence on record. For the

reasons best known to the accused, he did not choose to

do so. The medical evidence in the form of Exs.P1 and P3

clearly indicate that there are signs of recent sexual

intercourse on the body of the victim girl. Therefore, the

oral testimony of PW.5 is sufficiently corroborated by the

oral testimony of PW.1, who is the doctor examined the

victim girl on 14.03.2014 and collected he samples from

the body of the victim girl and sent it for the FSL

examination. Though in the FSL report marked at Ex.P2,

there is absence of spermatozoa, the other material

available on record and the physical and clinical

examination of the victim girl, who is aged only 12 years,

PW.1 was of the definite opinion that there were signs of

recent sexual intercourse on the body of the victim girl.

The incident has occurred on 13.03.2014 and samples

have been collected from the body of the victim girl on

14.03.2014. In the interregnum, hardly there is any scope

for any other person to commit the forcible sexual

intercourse with the victim girl. Accordingly, the learned

trial Judge rightly appreciated above evidence on record

and recorded a categorical finding that accused is the

person who has been responsible for the recent sexual

intercourse with the victim girl.

23. On re-appreciation of the above material

evidence on record in the light of the appeal grounds

referred to supra, this Court is of the considered opinion

that there is no merits in the grounds raised by the

appellant. Positive evidence placed by the prosecution in

the form of oral testimony of PWs.5, 6 and 7 coupled with

the medical evidence of PW.1 and the documentary

evidence, this Court is of the considered opinion that the

prosecution is successful in proving the guilt of the

accused/appellant by placing oral and documentary

evidence on record.

24. Further, since the victim girl is a minor and

accused being charged with offences punishable under

Sections 4 and 6 of the POCSO Act, the prosecution did

enjoy the presumption under Sections 29 and 30 of the

POCSO Act. Therefore, in such circumstances, accused

was bound to place such material on record, whereby, the

presumption available to the prosecution stood rebutted.

Under such circumstances, the finding recorded by the trial

Court is based on sound and logical reasons. On re-

appreciation of the material evidence, this Court does not

find any legal infirmity whatsoever or perversity in

reaching out such finding. Therefore, point Nos.1 and 2

are answere in affirmative and negative respectively.

25. Regarding point No.3: The learned Special

Judge has sentenced the accused/appellant as referred to

supra. The learned counsel for the appellant contended

that the sentenced imposed is excessive.

26. The learned Special Judge while passing the

order of sentence has dealt in detail in the impugned

judgment for awarding 12 years imprisonment. The

learned Special Judge has also considered that for Section

376(2)(i) of IPC, the punishment is life imprisonment,

which would be for the rest of the life and whereas for the

offence under Section 4 of the POCSO Act, it is life

imprisonment. However, there was no amendment to the

POCSO Act as on the date of the alleged incident and

therefore, the learned Special Judge has preferred to

sentence the accused/appellant for the offence under

Section 376(2)(i) of IPC instead of Section 4 of the POCSO

Act as the punishment for the offence under Section

376(2)(i) of IPC is greater in degree compared to Section 4

of the POCSO Act and did not pass a separate sentence

insofar as Section 4 of the POCSO Act is concerned.

27. The mitigating circumstance that has been

argued before the trial Court and before this Court is that

as on the date of the incident, the appellant is of the

young age. It is now settled principle that young age is

not a licence to commit a rape on anybody and everybody.

Therefore, it is not a mitigating circumstance either.

Moreover, the victim in the case on hand is an innocent girl

of 12 years age. Taking note of these aspects of the

matter, the learned Special Judge has rightly convicted the

accused/appellant for the alleged offences. The benefit

under Section 428 of Cr.P.C. has already been accorded by

the learned Special Judge. Therefore, in the considered

opinion of this Court, there is material placed on record

which would influence the Court in reducing the sentence

from 12 years to 10 years minimum punishment.

Accordingly, point No.3 is answered in the negative and

pass the following:

ORDER

Appeal sans merit and herby dismissed.

Sd/-

JUDGE

Srt