Syed Mahamad vs The State Of Karnataka
2022 Latest Caselaw 2939 Kant

                                       CRL.A.No.2126/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 22ND DAY OF FEBRUARY 2022

                        BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

         CRIMINAL APPEAL NO.2126/2017
BETWEEN:

SYED MAHAMAD
S/O LATE SAYED BHASHEER SAB
AGED ABOUT 65 YEARS
R/AT 1ST CROSS, WATER TANK
GANDHINAGARA, TIPTUR TOWN
TUMAKURU DISTRICT - 572 201                ...APPELLANT

(BY SRI.S.J.KRISHNAJI RAO, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY TIPTUR TOWN POLICE
REP. BY THE LEARNED STATE
PUBLIC PROSECUTOR                         ...RESPONDENT
(BY SMT RASHMI JADHAV, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 21.09.2016 PASSED BY THE III ADDITIONAL SESSIONS
JUDGE, TUMKUR IN SPL.C.NO.54/2015 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 10 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT.

     THIS CRIMINAL APPEAL COMING ON FOR    FURTHER
HEARING THIS DAY, THE COURT         THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:
                                               CRL.A.No.2126/2017

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                         JUDGMENT

Heard.

2. Aggrieved by the order of conviction and

sentence passed against him for the offence punishable

under Section 10 of Protection of Children from Sexual

Offences Act, 2012 (for short 'the Act'), the accused in

Spl.C.No.54/2015 has preferred the above appeal.

3. Appellant was prosecuted in Spl.C.No.54/2015

for the charge punishable under Section 10 of the Act on

the basis of the charge sheet filed by the respondent police

in Crime No.1/2015 of their police station. For the purpose

of convenience parties will be referred henceforth

according to their ranks before the trial Court.

4. P.Ws.1 and 3 are the father and mother of

P.W.2. P.W.2 at the relevant time was aged four years.

Accused is a neighbour of P.Ws.1 to 3.

5. Case of the prosecution in brief is as follows:

(i) On 04.01.2015 at about 3.30 p.m. when P.W.2

was playing in front of her house, accused called the victim CRL.A.No.2126/2017

girl and made her to lie down on sofa of his house and

committed penetrative sexual assault on her. When the

child screamed, he left the child. P.W.2 went home crying

and reported the incident to P.W.3. P.W.3 reported the

matter to P.W.1 after he came home from work in the

evening. P.W.1 filed the complaint as per Ex.P.1 before

P.W.8 Police Inspector of Tiptur Town Police Station.

(ii) On the basis of Ex.P.1, P.W.8 registered the

FIR as per Ex.P.8. After that he got P.W.2 medically

examined. P.W.5 medical officer in Tumkur District

Hospital examined P.W.2 and issued report as per Ex.P.2.

P.W.8 arrested the accused, recorded his voluntary

statement and recovered M.O.1, nikkar of the accused

under the Mahazar Ex.P.7. He got the statement of the

victim recorded under Section 164 Cr.P.C as per Ex.P.9.

He collected the samples sent by doctor and sent them to

FSL, received the FSL report, recorded statements of the

witnesses and filed the charge sheet.

CRL.A.No.2126/2017

6. The trial Court on taking cognizance of the

offences registered the case in Spl.C.No.54/2015. Since

accused denied the charges, the trial was conducted. In

support of the prosecution case, P.Ws.1 to 9 were

examined and Exs.P1 to 11 and M.O.1 were marked. After

his examination under Section 313 of Cr.P.C., accused did

not lead any defence evidence.

7. The trial Court on hearing both side, by the

impugned judgment and order, convicted the appellant for

the offence punishable under Section 10 of the Act and

sentenced him to simple imprisonment of 5 years and fine

of Rs.50,000/-. The trial Court further held that if accused

fails to pay the fine amount, he shall under go simple

imprisonment for one year.

8. The trial Court held that aggravated sexual

assault on the victim girl is proved by the evidence of

P.W.2 the victim, and that evidence was corroborated by

the evidence of P.Ws.1 and 3 her parents and medical

evidence and the evidence of other witnesses.

CRL.A.No.2126/2017

Submissions of Sri. S.J.Krishnaji Rao, learned counsel for the appellant challenging the impugned judgment and order:

9. There was one day delay in filing the

complaint. As per the child's evidence only, there were no

injuries on her. Whereas P.Ws.1 and 3 say that there were

injuries on the private part of the victim. There were lot of

contradictions in the evidence of P.Ws.1 to 3. Evidence on

record shows that P.W.2 was tutored by her parents. The

evidence with regard to the cloth worn by the victim at the

time of the offence was contradictory. Moreover, the said

frock/chudidar was not marked in evidence. When the

medical examination was negative, the trial Court was not

justified in raising the presumption under Sections 29 and

30 of the Act. The charge was not proved beyond

reasonable doubt. Therefore, the impugned order of

conviction and sentence is not sustainable. In support of

his submission, he relies on judgment of Kolkata High

Court in Sitaram Das Vs. State of West Bengal1.

CRA No.567/2015 DD 27.02.2020 CRL.A.No.2126/2017

Submissions of Smt.Rashmi Jadhav, learned HCGP in support of the impugned judgment and order:

10. Victim who was aged four years all along

categorically spoke about overt-acts of the accused.

Having regard to the nature of the offence and the social

status of the parties, one day delay in filing the complaint

does not demolish the prosecution case. Moreover, P.W.1

has explained the cause of delay. The alleged

inconsistencies or contradictions in the evidence of P.Ws.1

to 3 are minor and natural. They do not demolish the core

of the prosecution case. Though P.W.5 says that there

were no external injuries on the victim, but she has given

opinion that there was an attempt of penetrative sexual

assault. The said evidence was unimpeached. P.Ws.6 and

7, witnesses to seizure of M.O.1 have supported seizure.

The finding so far as presence of seminal stains in M.O.1

was incriminating as per Ex.P.11 the FSL report. There

was no reason for P.Ws.1 to 3 or the police to falsely

implicate the accused in the case. By the aforesaid

evidence initial burden of sexual assault was discharged by CRL.A.No.2126/2017

the prosecution. Therefore, presumption under Sections 29

and 30 of the Act arises. The accused failed to rebut that

presumption. Therefore, the judgment relied on by the

learned counsel for the appellant is not applicable.

11. Having regard to the rival submissions and

material on record, point that arises for consideration is

'Whether the impugned order of conviction and sentence is

sustainable in law?'

12. The accused is convicted for the offence under

Section 10 of the Act, which reads as follows:

"10. Punishment for aggravated sexual assault.--Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine."

13. Conviction under Section 10 of the Act can be

sustained if the alleged act is an aggravated sexual

assault. Aggravated sexual assault is defined under

Section 9 of the Act which covers aggravated sexual CRL.A.No.2126/2017

assault. For the purpose of this case, Section 9(m) of the

Act is relevant, which reads as follows:

"9. Aggravated Sexual Assault -

(m) whoever commits sexual assault on a child below twelve years"

14. In the case on hand, it is alleged that the

victim is below 12 years and the accused committed sexual

assault. Sexual assault is defined in Section 7 of the Act,

which reads as follows:

"7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault".

15. In the case on hand, allegation of the

prosecution is that accused touched the vagina of the

victim with sexual intent and attempted to thrust his penis

into her vagina. Whether evidence supported the act of

the accused touching the private parts of the child and CRL.A.No.2126/2017

trying to thrust his private part into her private part, is the

question.

16. To prove that act, prosecution relied on

evidence of victim P.W.2, her parents P.Ws.1 and 3 and

doctor P.W.5. Their evidence was further corroborated by

the evidence of P.Ws.6 and 7 seizure mahazar witnesses,

P.W.9 FSL witness and P.W.8 the Investigating Officer.

17. So far as the age of the victim, accused did not

dispute that victim was aged four years. It was also not

disputed that P.Ws.1 to 3 and accused are neighbours.

The alleged incident took place on 04.01.2015 at 3.30

p.m. Complaint was filed on 05.01.2015 at 2.00 p.m. The

victim was medically examined on 05.01.2015 at 5.40

p.m. Further, she was examined before Magistrate under

Section 164 Cr.P.C. on 07.01.2015.

18. In Ex.P.1, complainant states that he came

home on 04.01.2015 in the evening. His wife P.W.3

reported the matter that her daughter came home crying

and reported that when she had gone to house of the CRL.A.No.2126/2017

accused, he made her to lay down on the sofa and

thrusted his private part in her private part and pressed

her body and caused pain to her. He said that since it was

night, they decided to file the complaint next day. He also

states that when he questioned the accused, he spoke

lightly. In the complaint also he has stated that he had

suspected that accused had committed penetrative sexual

assault on the victim.

19. Soon thereafter, history was given before

doctor which is found in Ex.P.2 medical examination report

and deposition of P.W.5. On the succeeding day, at about

3.30 or 4.00 p.m. victim gave the same history of sexual

assault before doctor. The same history is reflected in

Ex.P.9 statement of the victim under Section 164 Cr.P.C.

P.W.2 victim in her chief examination reiterated the same

overt acts of the accused in his house. She has also

deposed that she revealed the incident to her mother, she

was taken to the hospital and thereafter she gave

statement before Magistrate.

CRL.A.No.2126/2017

20. It is no doubt true that in the cross-

examination, she spoke about some other overt acts of the

accused such as pinching on her shoulders and beating

her. According to learned counsel for the

accused/appellant they are the improvements. But the

history of pinching was given before doctor. To say that

there were improvements at the instance of the

prosecution, those statements were not made in the chief

examination. That was elicited by the defence Counsel

himself during cross-examination. At any rate, such

omissions in her statement before Magistrate do not

destroy the core of the prosecution case that the accused

committed aggravated sexual assault.

21. P.W.1 was not an eyewitness or res gestae

witness. He only learns about the incident through his wife

on that evening and files the compliant. P.W.3 mother

says that when her daughter came home informed about

the incident and complained of burning sensation in her

private part, she examined her private part and

found semenal stains around the private part. She says CRL.A.No.2126/2017

she washed private part of the child. She does not speak

of any injuries on the private part.

22. Only P.W.1 says that his wife reported to him

that private part of the victim had become reddish. He

does not speak that there were injuries on the private

part. Therefore, it cannot be said that there are

contradictions much less major contradictions in the

evidence of P.Ws.1 to 3 and the doctor P.W.5.

23. In addition to that, seizure of M.O.1,

underwear of the accused under mahazar Ex.P.7 was

substantiated by the evidence of P.Ws.6 and 7, mahazar

witnesses and P.W.8 the Investigating officer. As per FSL

report Ex.P.11, on M.O.1 seminal stains were found. That

was spoken by P.W.9 the scientific Officer of FSL

Bangalore. Based on that PW.5 opined that there was an

attempt of penetrative sexual assault.

24. When P.Ws.1 to 3 consistently spoke about

overt acts of the accused, presumption under Sections 29

and 30 of the Act arises. It was for the accused to rebut CRL.A.No.2126/2017

the said presumption. Presumption could be rebutted by a

probable defence. Why P.Ws.1 to 3 falsely implicate the

accused should have been explained. The

appellant/accused claimed that there was some ill-will

between PW.1 and himself and therefore they have falsely

implicated him. The said defence theory was not

consistent.

25. It was suggested to PW.1 that there was

quarrel between PW.3 and the accused about his

granddaughter playing, therefore he has falsely implicated,

which he denied. The suggestion to PW.2 is that she was

tutored by her parents, therefore she has deposed falsely.

She denied the said suggestion. To PW.3 it was suggested

that about one week prior to the complaint, there was

quarrel between the accused and the mother of PW.3

about collecting water, due to that ill-will he was falsely

implicated in the said case. PW.3 denies that. When the

accused introduced the above said three different stories

of false implication in the cross-examination of the CRL.A.No.2126/2017

witnesses he does not whisper anything about that in his

examination under Section 313 of Cr.P.C.

26. Under the circumstances, the theory of false

implication suggested to the witnesses itself was mutually

inconsistent and that was not further explained in his

examination under Section 313 of Cr.P.C, thereby his

defence was not probabilised.

27. As per Section 29 of the Act, the moment the

accused is prosecuted for the offence under the Act, the

presumption arises. In Sitaram Das's case relied upon by

learned Counsel for the appellant, it was held that the

initial burden of commission of sexual assault is on the

prosecution and then the presumption can be raised.

Reading of the said judgment shows that in that case the

victim herself had given go bye to the prosecution story

and gave version contrary to the first information report.

28. In this case, the victim has stuck to the

allegation of sexual assault right from the stage of filing of

the first information report, during her examination before CRL.A.No.2126/2017

the doctor, her examination before learned Magistrate and

before the Court. Her evidence about the act of sexual

assault was cogent and consistent. That was further

corroborated by the evidence of her mother and doctor

PW.5.

29. As already pointed out, Section 5(m) of the Act

deals with penetrative sexual assault on the child. But the

presumption under Section 29 of the Act is not only with

reference to offences under Sections 5, 9 or 10 of the Act

but that is with reference to any other offences under the

said Act. Section 2(i) of the Act defines 'sexual assault'

which says that the said term has the same meaning as

assigned to it under Section 7 of the Act. Section 7 of the

Act as already noted deals with the act of the accused

touching private part of the child or committing any other

act with sexual intent.

30. The evidence on record shows that there was

attempt of aggravated sexual assault which is punishable

under Section 18 of the Act and not under Section 10 of CRL.A.No.2126/2017

the Act. Only to that extent, it can be said that there is an

error in the judgment and order.

31. So far as delay in filing the complaint, the child

is hardly 4 years. PWs.1 to 3 belong to labour class. PW.1

says that after he returning home in the night, PW.3

revealed the incident to him during night. Therefore, he

has filed the complaint before the police on the next day.

He even says that even before going to the police, he went

to the accused and he abused him in foul language.

32. The Hon'ble Supreme Court in Satyapal vs.

State of Haryana2 and State of Himachal Pradesh v.

Srikanta Shikari3 held that ordinarily in such cases, the

family members of the victim would not intend to get a

stigma attached to the victim. It was further held that

delay in lodging the first information report in such cases is

normal and said delay is per se is not mitigating

circumstance and that is not fatal.

AIR 2009 SC 2190

2005 SCC (Cri) 327 CRL.A.No.2126/2017

33. Moreover in this case, there was no such

inordinate delay. Therefore the contention with regard to

delay in filing the first information report deserves no

merit. For the aforesaid reasons, the appeal has to be

partly allowed. The accused is liable to be convicted for the

offence punishable under Section 10 read with Section 18

of the Act.

34. The punishment prescribed for the said offence

is imprisonment of any description provided for the

offence, for a term which may extend to one half of the

imprisonment for life, or as the case may be, one half of

the longest term of imprisonment provided for that offence

or with fine or with both.

35. The trial Court has sentenced the appellant for

five years and with fine of Rs.50,000/-. Half of the period

of 7 years comes to 3½ years, the appellant was arrested

on 05.01.2015.

36. In this appeal, suspension of sentence was not

sought. Therefore, he has already served more than the CRL.A.No.2126/2017

sentence prescribed for the offence punishable under

Section 18 of the Act.

37. For the aforesaid reasons, the appeal is partly

allowed. The impugned order of conviction is hereby set

aside. The appellant is convicted for the offence punishable

under Section 10 read with Section 18 of the Act.

For the said offence, the appellant is sentenced to

imprisonment of 3 ½ years and fine of Rs.50,000/-. If he

fails to pay the fine amount, he shall undergo simple

imprisonment for one year. If the said period of sentence

is already served, he shall be set at liberty forthwith if his

detention is not required in any other case.

Sd/-

JUDGE

pgg/KSR