Raju S/O Sharanappa Mangi vs The State Of Karnataka
2022 Latest Caselaw 1935 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.200175/2016


BETWEEN

RAJU S/O SHARANAPPA MANGI
AGE:31 YEARS, OCC:COOLIE,
R/O:DONUR, TQ:CHITTAPUR,
DIST:KALABURAGI.                      ...APPELLANT

(BY SRI. SHARANABASSAPPA K BABSHETTY, ADV.)

AND

THE STATE OF KARNATAKA
THROUGH THE KALAGI POLICE STATION,
REPRESENTED BY THE ADDL. SPP
HIGH COURT, KALABURAGI BENCH       ....RESPONDENT

(BY SRI. GURURAJ V. HASILKAR, HCGP)

      THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C
PRAYING TO, SET ASIDE THE JUDGMENT AND SENTENCE
DATED:16.09.2016 PASSED BY THE II ADDL. SESSIONS
JUDGE, AT KALABURAGI, IN SPECIAL CASE (POCSO)
NO.4/2015, AND ACQUIT THE APPELLANT/ACCUSED IN
THE SAID CASE,

     THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING :
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                           JUDGMENT

The accused who has suffered an order of conviction

for the offence punishable under Section 377 of IPC and

Section 6 of the Protection of Children from Sexual Offices

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

and ordered to undergo rigorous imprisonment of ten

years and to pay fine of `5,000/- with default sentence of

six months simple imprisonment in Special Case (POCSO)

No.4/2015.

2. Brief facts of the case are as under :-

A complaint came to be lodged with Kalagi Police

Station by the victim boy on 08.05.2013 contending that

he is the resident of Dommanur village and he is residing

with his aunt, as his parents had gone to Bengaluru for

eaking out their livelihood. He was studying in 2 nd standard

and since there was summer vacation to the school, on

08.05.2013 at about 4.00 p.m. he had gone to the lands of

Masutagi for grazing sheep. At that juncture, Raju

(accused) came near him and pulled him towards a lonely

place and fell him down and de-robbed him and had a

forcible sexual intercourse into his anus. Thereafter, he

lost his conscious and Krishnappa had seen the action of

the accused. Thereafter, Krishnappa came and made him

to drink water and regain the conscious. He started crying

and at that juncture his uncle Sabanna were came to

attend the nature call had seen him and enquired him as

to why he is crying, at that juncture he has revealed the

incident to him and he escorted him to his house.

Subsequent thereto, he has revealed the same to his aunt

and he was taken to the police station where he has

lodged the complaint against the accused for taking action.

He was then taken to hospital for medical check-up.

3. The Kalagi police station registered a case on

the basis of the complaint in Crime No.52/2013 for the

offence punishable under Section 377 of IPC and Section 6

of the POCSO Act and conducted spot mahazar and after

detailed investigation filed charge sheet against the

accused for the offence punishable under Section 377 of

IPC. Accused was arrested during the course of

investigation. The learned Judge perused the charge-sheet

materials and framed the charge for the offence punishable

under Sections 377 of IPC and Section 6 of the POCSO

Act. Accused pleaded not guilty and therefore trial was

held.

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

10 witnesses have been examined as PWs.1 to 10 and 07

documents were marked as Exs.P.1 to P.7.

5. On conclusion the prosecution evidence

accused statement was recorded as contemplated under

Section 313 of Cr.P.C. The accused has denied all the

incriminatory materials found against him in the

prosecution evidence and did not chose to place his

version on record, to rebut the presumption available to

the prosecution under Sections 29 and 30 of the POCSO

Act. He also did not place any written submission on record

about his version as is contemplated under Section 313 (5)

of Cr.P.C. Thereafter, the learned Judge heard the parties

and convicted the accused and sentenced as aforesaid.

6. Being aggrieved by the same, the accused has

preferred this appeal.

7. In the appeal memorandum following grounds

have been raised :-

x That, the impugned order of conviction is illegal and against the material on record and the same is liable to be net-aside.

x That, as per evidence of PW-4/doctor, no injuries is found on the body of the victim boy and also no penetration as per report of the Dist Hospital, as per the document Ex.P-4, So, the entire prosecution case is created and concocted,

x That, as per the evidence of the PW-5/victim, he was slapped by the accused on his head, But the same has not been stated in the complaint. His evidence is contrary to the complaint, Hence the commission of offence by the appellant is not proved by the prosecution, so on the ground of benefit of doubt the appellant is entitle for acquittal.

x That, the PW-2 is stated to be the eye witness to the prosecution case but in his evidence he has stated that, he do not know anything about the incident and ultimately his evidence has been treated as hostile. Thus, it creates doubt above commission of offence by the appellant. Therefore on

the basis oft benefit of doubt only the appellant is entitled acquittal in the case.

x That, PW-1 and 10 are stated to be spot panch witnesses. But in their evidence they have stated that, they do not know anything about the incident and ultimately their evidence has been treated as hostile. Thus, it creates doubt above commission of offence by the appellant. Therefore, on the basis of benefit of doubt only the appellant is entitled for acquittal in the case.

x That, no independent witness has corroborated with the evidence o complainant/ PW-5, thus the whole story of the prosecution is baseless. Even the statement U/Sec. 164 is not proved by the prosecution. So, the appellant is entitle acquittal on the ground of benefit of doubt.

x That, PW-8 is the circumstantial witness, as per complaint he took the victim to the house of the victim, but in his evidence he has stated that, he do not know anything about the incident and ultimately his evidence has been treated as hostile. Thus, the entire case of the prosecution store seems to be false. Therefore on the basis of benefit of doubt only the appellant is entitled acquittal in the case.

x That, PW-7 aunt of the victim, PW-8 uncle of victim and PW-

6 relative of victim, they have not supported the case of the prosecution. Thus, the entire case of the prosecution story seems to be false.

x That, the trial court has erred in framing the charge U/Sec. 6 of POCSO Act, when it was not in the charge sheet. Thus, the impugned order of conviction U/Sec. 6 of POCSO Act, is illegal and the appellant is liable to be acquitted.

x That PW-9 is the investigation officer and he has stated about his Work done in this case Thus, the entire case of the prosecution store seems to be false.

x That, the trial court had framed 3 points for determination of the case, point Nos.1 & 2 have held as affirmative and convicted the appellant/accused under Section 6 of POCSO Act. Therefore, on the basis of benefit of doubt the appellants may be acquitted from the case.

8. Reiterating the above grounds, Sri

Sharanabasappa K.Babshetty vehemently contended that

the material evidence on record is hardly sufficient to

record an order of conviction against the accused for the

offence punishable under Section 377 or Section 6 of the

POCSO Act.

9. He further contended that the medical

evidence do not corroborate the version of the victim boy

and therefore, the learned trial Judge ought not to have

convicted the accused for the aforesaid offences and

sought for allowing the appeal.

10. He also pointed out that among the

prosecution witnesses, PW.1 who is the mahazar witness,

PW.2 is said to have made accused to drink the water,

PW.8 who is the relative who had attended the nature call

and escorted the boy to his house and PW.10 who is co-

panch have turned hostile to the case of the prosecution.

The trial Judge ought not to have passed an order of

conviction against the accused and sought for allowing the

appeal,.

11. He also pointed out that even assuming that

the version of the boy is to be accepted, since there is no

medical evidence which would conclusively establish that

there was a penetration of the male organ of the accused

into the anus of the victim boy, the accused needs to be

convicted only for the offence of sexual assault and not

under Section 6 of the POCSO Act and therefore sought for

allowing the appeal.

12. Per contra, learned High Court Government

Pleader opposes the appeal by contending that the

material evidence on record is sufficient enough to

maintain the conviction of the accused for the offence

punishable under Section 6 of POCSO Act. He further

pointed out that in a matter of this nature the statement

made by the victim boy is of great significance and in the

absence of any previous enmity or animosity between the

victim family and the accused why would be the accused

falsely implicate in a matter of this nature is a question

that remained unanswered by the defence and sought for

dismissal of the appeal.

13. He also pointed out that alternative arguments

put-forth on behalf of the accused cannot be countenanced

in law. He further submits that mere report given by the

Doctor at Ex.P.4 issued by PW.4 would not be sufficient

enough to hold that there was no penetrative sexual

assault committed by the accused into the anus of the

victim boy and therefore, sought for dismissal of the

alternate plea as well.

14. In view of the rival contentions of the parties

and in the light of the appeal grounds, this court perused

the records meticulously.

15. On such consideration following points would

arise for consideration :-

1. Whether the prosecution has successfully established that on 08.05.2013 accused has committed forcible sexual assault with the victim boy into his anus whereby he is guilty of the offence punishable under Section 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 ?

Regarding points No.1 and 2 :-

16. In the case on hand, in order to prove the

charges leveled against the accused, prosecution in all

examined 10 witnesses. Among them, PW.1 is the

mahazar witness who participated in Ex.P.1 mahazar. He

did not support the case of the prosecution. PW.2 is

circumstantial witness who suppose to have made the

victim boy to consume water and victim boy narrating the

incident to him immediately after the incident. He also did

not support the case of the prosecution to any extent.

These two witnesses have been treated as hostile by the

prosecution and cross-examined them by confronting the

contents of mahazar and also the contents of statements

said to have given by them before the Investigating

Officer. But in such cross-examination, no useful materials

are elicited. PW.3 is Dr.Harshanand who initially examined

the accused on 17.07.2013 at the request of the

investigation agency. After such examination, he has

issued the potential certificate vide Ex.P.3. This witness is

not cross-examined by the defence. PW.4 is the Doctor

who examined the victim boy on 08.05.2013 in Community

Health Centre, Kalgi. She has deposed that based on the

clinical examination she has issued Ex.P.4 wound

certificate. In her cross-examination by the defence, it is

elicited that at the time of the examination of the victim

boy he was conscious. She submits that at the time of

examination, history about the incident would be recorded

by the Doctor and in the said column, name of the accused

is not written. Victim boy is examined as PW.5. The

learned trial Judge after putting few questions to the victim

boy about his capacity to understand the worldly things

permitted him to examine by the prosecution. In such

examination, victim boy deposed about the incident with

graphic details. He has specifically stated that when he had

gone to graze the sheep, accused came there and pulled

him to a lonely place and removed his underwear and

thereafter, inserted his penis into the anus of the victim

boy and also assaulted him on his head with his hand.

17. He further deposed that one Krishnappa came

there and at that juncture, the accused ran away and the

victim boy lost his consciousness. It is further deposed by

him that two others also arrived there and Krishnappa

made him to drink water and thereafter he came home

and narrated the incident to his aunt and thereafter he was

taken to the police station and gave the complaint.

18. In his cross-examination it is elicited that

every day he used to go for grazing the sheep around

10.00 a.m. and used to return by about 4.00 p.m. For

grazing the sheep he used to go all alone. He has stated

that the place of incident could be reached from his house

within five minutes. He also elicited that there were others

working in the neighbouring lands. He also admits that

usually women folk would be moving near that place for

washing clothes. However, the witness has clarified that on

that day no such women folk were present. It is also

elicited that on the day of incident, nearby canal there

were 8-10 boys indulged in swimming. The suggestion

made to him that accused has never committed forcible

sexual intercourse is denied by him.

19. Nagesh is examined as PW.6. He deposed that

on the day of incident he had gone to agriculture land at

Masutagi and he was in the process of removing the

wheat's. After hearing the alarm of the victim boy he has

rushed to the spot and on enquiry from the victim boy he

came to know about the incident from the victim boy. He

also deposed that Krishnappa and Deelip were also present

at the place of incident. In his cross examination, it is

elicited that the parents of the victim boy had been to

Bengaluru to eak-out their livelihood and victim boy had

gone to graze the sheep. It is also elicited that agricultural

land of Masutagi is situated half a kilometer away from the

house. He denied the suggestion that in order to help the

victim boy he has given a false evidence.

20. Aunt of victim boy is PW.7. She deposed about

the incident after victim boy came and reported the

incident to her. In her cross-examination it is elicited that

she has a son by name Ambrish but he used to stay in

Ambedkar Hostel at Kalaburagi. She admits that a case

has been filed against Ambrish and he was in jail. He

denied that Ambrish is indulging money lending. She

further denies that the father of the accused has borrowed

`5,000/- from Ambrish and father of the accused was due

in a sum of `20,000/- and in that regard there was a ill-will

between the father of the accused and their family. Those

suggestions have been denied by the witness. She also

denied the suggestion that in order to teach a lesson to the

accused a false case has been lodged against the accused.

21. One Sabanna is examined as PW.8. He is the

uncle of the victim boy who did not support the case of the

prosecution.

22. PSI who registered the case and filed the

charge-sheet is examined as PW.9. His evidence is formal

in nature. He deposed about the receipt of the complaint

and registering the case. In his cross-examination no

useful materials are elicited.

23. PW.10 is the Suryakanth. He also a co-panch

to Ex.P.1 mahzar. He also did not support the case of the

prosecution.

24. Ex.P1 is the mahazar, Ex.P.2 is the statement

of PW.2, Ex.P.3 is the medical certificate issued by PW.3,

Ex.P.4 is the medial certificate of the victim boy, Ex.P.5 is

the complaint, Ex.P.6 is the portion of the statement of

PW.8 and Ex.P.7 is the FIR.

25. The above evidence on record is sought to be

appreciated on behalf of the appellant.

26. In the case on hand, the incident said to have

occurred on 8.5.2013. PW-5 is the victim boy. In his

examination in chief, he has deposed in conformity with

the complaint averments. He is the complainant as well.

He has specifically deposed before the Court that he has

acquainted with the accused and on the day of the

incident, he has gone to graze the sheep. When he was so

grazing sheep, accused came there and pulled him to a

lonely place. Thereafter, he has removed his underwear

and committed forcible sexual intercourse in his anus. It is

pertinent to note that in a matter of this nature, the

statement of the victim boy assumes a great significance.

In the absence of any previous enmity or animosity, why

would the victim boy create a false story and falsely

implicate the accused in this case is a question that

remains unanswered. No doubt, while cross examining the

aunt of the victim boy, a stray suggestion is made that

father of the accused has borrowed a sum of `5,000/- from

the son of the aunt of the victim boy and he was

demanding `20,000/- with regard to the said loan. But

such suggestion is not even made to the victim boy. The

ill-will that was nurtured between the aunt and the father

of the accused is thus an afterthought. In the first place,

when the victim boy was cross examined, no such

suggestions are put except denying the incident in toto.

27. The oral testimony of PW-2 Krishnappa and the

uncle of the victim boy PW-8 Sabanna who have not

supported the case of the prosecution has not caused any

serious dent to the case of the prosecution. Mere fact that

Krishna who supposed to have made the victim to drink

water, turning hostile to the case of the prosecution, did

not create any doubt in the prosecution case that the

incident has not at all occurred. For what reason, Krishna

turned hostile to the case of the prosecution is immaterial

inasmuch as, the version of the victim boy does inspire the

confidence in the court that the incident as propounded by

the prosecution has occurred on the day of the incident.

28. Further, accused is also known to the victim

boy and not a stranger. Mere non mention of the name of

the accused in the history column when the victim boy was

examined by the doctor did not cause any serious

prejudice to the case of the prosecution as well. Likewise,

the clinical report marked at Ex.P-4 stating that there are

no evidence to show that there was a forcible sexual

intercourse into the anus of the victim boy by the accused

would not also improve upon the case of the appellant to

any extent, inasmuch when the victim boy has specifically

deposed before the Court that the accused has penetrated

into his anus.

29. The victim boy is aged 9 years and he has

deposed in a categorical manner about the incident. When

the case of the accused he a total stranger and he has

been falsely implicated, it is for the accused to establish

the same by placing probable evidence on record.

30. Further, since the victim boy is aged nine

years, the prosecution having invoked Section 6 of the

POCSO Act, the prosecution did enjoy the presumption

under Section 29 and 30 of the POCSO Act. No doubt, it is

a rebuttable presumption. But the accused has not tried

to rebut the said presumption either by examining himself

or by placing probable material on record.

31. More over, the accused did not offer any

explanation whatsoever at the time of recording the

accused statement and he denied all incriminatory

circumstances. In the medical certificate, it is noticed by

the doctor that there was redness in and around the anus

of the victim boy. In the absence of any version placed by

the accused, and when the victim boy has specifically

deposed about the total forcible penetration into the anus

of the victim boy. The learned Trial Judge has rightly

recorded a finding that the accused is guilty of the offence

of Section 6 of the POCSO Act.

32. This court, in the light of the appeal grounds

referred to supra, re-appreciated the materials on record.

On such re-appreciation, this court does not find any un-

naturality in the oral testimony of the victim boy or that of

her aunt and PW-6 Nagesh. Further, the accused has

failed to offer any explanation about his version or place

his version to the incriminatory materials found in the case

of the prosecution against him. Atleast, the accused must

have spelt out that because of the ill-will Ambarisha (Son

of the aunt PW-7 Yellamma), victim boy and father of the

accused, a false case has been filed against him.

Therefore, it cannot be construed that the accused has

rebutted the presumption putting suggestions to PW-7

Yellamma that because of Yellamma nurtured ill-will in

view of the financial transaction between Ambarisha and

father of the accused cannot be countenanced in law.

33. Accordingly, this court is of the considered

opinion that the prosecution is successful in establishing its

case in proving the charges levelled against the accused by

placing cogent and convincing evidence on record. The

same has been rightly appreciated by the learned trial

judge while holding accused guilty of the offence

punishable under Section 6 of the POCSO Act. Hardly any

legal infirmity or perversity is found in the impugned

judgment. Accordingly, Point No.1 is answered in the

Affirmative and Point No.2 is answered in the Negative.

Regarding Point No.3:

34. The learned trial judge has sentenced the

accused as stated supra. The only mitigating factor that

has been canvassed before the Court is that the accused is

a young age and he is a coolie by profession and the entire

family of the accused is depending on his earnings.

35. In the considered opinion of this court when

the accused who is aged 28 years has gone to the extent

of misusing a boy of nine years, the grounds urged on

behalf of the appellant that accused is a young age and

coolie by profession and family depending on his earnings

are not mitigating factors to reduce the sentence or show

leniency.

36. The learned trial judge has rightly sentenced

the accused taking note of all the attendant circumstances

in the case. The sentence of 10 years Rigorous

imprisonment ordered by the learned trial judge in the

considered opinion of this court is thus appropriate and

justified in the facts and circumstances of the case on

hand.

37. Further, the accused has already granted the

benefit under Section 428 of Cr.PC. Therefore, this court is

of the considered opinion that the sentence ordered by the

learned trial judge does not call for interference by this

court. Accordingly, Point No.3 is answered in the Negative

and pass the following:

ORDER

Appeal sans merit and hereby dismissed.

Sd/-

JUDGE

sn/PL*