Renuka Prasad @ Shashi vs State By Circle Inspector Of ...
2022 Latest Caselaw 3071 Kant

                                          CRL.A.No.1715/2019


                             1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 23RD DAY OF FEBRUARY 2022

                        BEFORE

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

         CRIMINAL APPEAL NO.1715/2019

BETWEEN:

RENUKA PRASAD @ SHASHI
S/O MANJE GOWDA
AGED ABOUT 22 YEARS
R/AT ANATHI VILLAGE
BARAGURU HOBLI
CHANNARAYAPATNA
HASSAN DISTRICT - 573 225              ... APPELLANT

(BY SRI.M.G.RAVISHA, ADV.)

AND:

STATE BY CIRCLE INSPECTOR OF POLICE
HASSAN CITY CIRCLE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE - 560 001                    ... RESPONDENT

(BY SMT.RASHMI JADHAV, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 09.08.2019 AND SENTENCE DATED
14.08.2019 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS AND SPECIAL JUDGE, HASSAN IN SPL. CASE
NO.11/2015 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 363, 344, 376 OF IPC
AND SECTION 6 OF POCSO ACT.
                                              CRL.A.No.1715/2019


                              2



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


                        JUDGMENT

Aggrieved by the order of conviction and sentence

passed against him for the offences punishable under

Sections 363, 344 and 376 of IPC and Section 6 of the

Protection of Children From Sexual Offences Act, 2012, the

accused in Special Case No.11/2015 on the file of the

Additional District & Sessions & Special Judge, Hassan has

preferred the above appeal.

2. The appellant was prosecuted in the said case

for the aforesaid offences on the basis of the charge sheet

filed by Hassan Extension Police in Crime No.299/2014 of

their Police Station.

3. PW.4 is the mother of PW.1. During 2014

PW.1 was studying in B.E.G.College, Hassan. She hailed

from Bhuvanahalli village, Hassan Taluk.

CRL.A.No.1715/2019

4. The case of the prosecution in brief is as

follows:

The appellant befriended PW.1 during her visit to her

aunt's house in Bengaluru. on 30.09.2014 at about 1.30

p.m. PW.1 was returning from her college to Kirugadal

village to go to her uncle's house. The appellant promising

to drop her to her uncle's house picked her up on his

motorbike bearing Registration No.KA-02-H-Z-5787.

Instead of dropping her to her uncle's house, he kidnapped

her from that place to the house of PW.6. He took a room

in the first floor of the house of PW.6 and confined PW.1 in

that house from 01.10.2014 to 12.10.2014. During that

period threatening PW.1 of her life, he committed

aggravated sexual assault on her.

5. Father of PW.1 filed kidnapping complaint as

per Ex.P9 before PW.11, PSI of Hassan Extension Police

Station. On the basis of such complaint he registered the

FIR as per Ex.P10. He deputed his staff to trace the

victim. The said staff traced PW.1 and the accused and CRL.A.No.1715/2019

produced them before him. The enquiry of PW.1 and

interrogation of the accused revealed the offence.

Thereafter PW.1 and the accused were subjected to

medical examination. PW.11 handed over further

investigation to PW.13. PW.13 conducted further

investigation and filed the charge sheet.

6. The trial Court on taking cognizance of the

offences registered the case in Spl.C.No.11/2015. On

hearing the parties, the trial Court framed the charges

against the appellant for the offences punishable under

Sections 363, 344, 376 and 506 of IPC and Section 6 of

the Protection of Children from Sexual Offences Act, 2012

('the POCSO Act' for short). Since the appellant denied the

charges, the trial was conducted.

7. In support of its case, the prosecution

examined PWs.1 to 13 and got marked Exhs.P1 to P14 and

M.O.1. On his examination under Section 313 of Cr.P.C.

accused did not lead any defence evidence.

CRL.A.No.1715/2019

8. The trial Court after hearing the parties by the

impugned order acquitted the appellant for the offence

punishable under Section 506 of IPC and convicted him for

the offences punishable under Section 363, 344 & 376 of

IPC and Section 6 of the POCSO Act. The trial Court

relying on the evidence of PW.1, 10 and Ex.P8 study

certificate held that PW.1 was aged below 18 years.

Further relying on the evidence of PWs.1 and 8 and her

report Ex.P1 held that the appellant committed aggravated

sexual assault on PW.1. The trial Court held that the

accused has not rebutted the presumption under Sections

29 and 30 of the POCSO Act. The trial Court convicted and

sentenced the appellant as below:

 Sl.     Offences Under                                   Default
                           Sentence   Fine Amount
 No.         Section                                     Sentence
                          SI for 3
1.     363 of IPC                     5,000/-        SI for 3 months
                          years
                          SI for 1
2.     344 of IPC                     2,000/-        SI for 3 months
                          year
3.     376 of IPC            -           -
                          RI for 10
4      6 of POCSO Act                 25,000/-       SI for 3 months
                          years
                                                  CRL.A.No.1715/2019

Submissions of Sri M.G.Ravisha, learned counsel for the appellant.

9. The age of the victim was not proved in

accordance with law. The conduct of the victim shows that

she was consenting party to the sexual cohabitation. The

medical evidence also did not show any injuries on her.

The impugned order of conviction and sentence is contrary

to the evidence on record and settled principles of law.

10. In support of his submissions he relies on the

following judgments:

i) Madan Gopal Kakkad vs. Naval Debey and another1

ii) Rajak Mohammad vs. State of Himachal Pradesh2

iii) State of Madhya Pradesh vs. Anoop Singh3

iv) Subeg Singh and others vs. State of Punjab4

v) Ananda vs. State by Women Police Station, Davanagere5

(1992)3 SCC 204

(2018)9 SCC 248

(2015)7 SCC 773

2015(1) AICLR 490

2020(1) Kar L.R SN 5 CRL.A.No.1715/2019

Submissions of learned HCGP:

11. The evidence of PWs.1, 4 and 8 shows that

PW.1 was minor. There was no reason to disbelieve the

evidence of PW.8. PW.1's evidence shows that she was

confined into room, her hands and legs were tied and her

mouth was gagged, all along she was kept in captivity.

Therefore, there was no question of she raising any

resistance or alarm. She had no phone to inform her

family members. Since PW.1 was minor, even assuming

that she did not raise her resistance that does not amount

to consent in law. The trial Court has rightly raised the

presumption under Sections 29 and 30 of the POCSO Act.

12. Having regard to the submissions of both side

and the material on record, the question that arises for

consideration is "whether the impugned order of

conviction and sentence is sustainable in law ?"

Analysis:

13. To sustain conviction and sentence for the

offences under Section 6 of the POCSO Act, the CRL.A.No.1715/2019

prosecution is required to prove beyond reasonable doubt

that the victim/PW.1 was aged below 18 years. In the

complaint Ex.P9 the father of PW.1 showed her age as 17

years four months. Father of the girl was not

examined. PW.4 in her evidence for the first time

deposed that PW.1 was born on 13.05.1997. Admittedly

she was studying second year Pre-University course in

2014. Therefore, her date of birth as mentioned the

authenticated documents like secondary school certificate

or primary school admission register extract will be

available.

14. As per the evidence of PW.4 the mother, she

delivered PW.1 in the hospital. Therefore, her birth

certificate will also be available. The Investigating Officer

did not collect any of those documents. Instead of that, to

prove her date of birth, PW.10-Principal of Pre-University

college, Hassan where PW.1 studied was examined.

PW.10 says that on the requisition of the Investigating CRL.A.No.1715/2019

Officer, she furnished Ex.P8 the admission register extract

of their college relating to PW.1.

15. As per Ex.P8, PW.1 was born on 13.05.1997.

For making entries in Ex.P8, PW.1 ought to have furnished

her secondary school marks card and transfer certificate

which contain date of birth. Those documents were not

collected. Thereby Ex.P8 becomes only a secondary

evidence and not primary evidence. Investigating Officer

does not subject PW.1 to oscification test for determination

of her age.

16. The only other evidence relied on by the

prosecution to prove the date of birth is that of PW.8 the

doctor who examined PW.1 and her report ExP1. PW.8

states that on physical examination of PW.1 she found that

PW.1 was 17½ years old. In Ex.P1 or in the evidence of

PW.8 it is not stated on what basis PW.8 entered the age

or date of birth of PW.1. Before the doctor the history was

given by the victim to the effect that accused was known

to her. He had taken her on his byke to Bengaluru.

CRL.A.No.1715/2019

Except that there is no basis for PW.8 to determine the age

of PW.1.

17. 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.1715/2019

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

(Emphasis supplied)

19. In the light of the aforesaid judgments, unless

PW.8 or the expert witness places before the Court all the

materials conclusive of the age, her conclusion regarding

the age of the victim cannot be relied on as evidence of

facts. Unless the evidence of PW.8 is supported by

technical data i.e., oscification test report, that cannot be

relied on to arrive at the conclusion about the age of PW.1.

20. Even as per the above evidence as on the date

of the alleged incident, the victim was 17½ years old. This CRL.A.No.1715/2019

Court in State of Karnataka vs. Narasimha

(Crl.A.No.974/2011 D.D.12.12.2014) has held that the

law is fairly well settled that the assessment of age by

Medical Officer is subject to margin of error by two years

and such benefit shall be given to the accused.

21. In Anand's case referred to supra, it was held

that when the documents like birth certificate or the date

of birth given at the time of admission of the school are

available and if those documents are not collected and

produced, that benefit shall go to the accused. If the

margin of error of two years is given, the victim will be

above 18 years. The trial Court without noticing the above

legal principles, relying only on the evidence of PWs.1, 8

and 10 held that PW.1 was aged below 18 years which is

unsustainable in law.

22. Once it is held that the victim was aged above

18 years, neither the presumption under Section 29 and

30 of the POCSO Act arises nor POCSO Act is applicable.

CRL.A.No.1715/2019

Consequently, the conviction under Section 6 of the

POCSO Act does not sustain.

23. The next question is whether the appellant

kidnapped PW.1 from Hassan to Bengaluru and confining

her in the house of PW.6 committed rape on her between

1.10.2014 and 12.10.2014. It is already held that the

victim PW.1 was known to the appellant. She claimed that

the appellant picked her up in the guise of dropping her,

but kidnapped her from Hassan to Bengaluru and

wrongfully confined her in the house of PW.6.

24. PW.1 in her cross examination states that after

10 minutes of she boarding the motor bike of the

appellant, she realized that he has changed the route. She

says that when they left Hassan, it was 1.30 p.m. and

reached Arasinakunte by night. She says that from

Hassan to Bengaluru, it is National Highway and many

vehicles and people move on the said road. She admits

that enroute there are several Taluk centres and Hobli

centres and villages. She also admits that there are 4 to 5 CRL.A.No.1715/2019

Toll Collection Centres. All along from Hassan to

Bengaluru, she admits that she did not raise any alarm

seeking help of the public. Such conduct of PW.1

probabalises theory of she being voluntary participant in

such journey.

25. As per the prosecution itself, the appellant and

PW.1 stayed in the house of PW.6 on rental basis. PW.6 in

her chief examination itself states that the appellant

brought PW.1 to her house and they stayed together in

their house for twelve days. She states that they were

taking meals in her house and the appellant had

introduced PW.1 as his wife. That goes to show that PW.1

had mingled with the residents of the place where she

lived with the appellant. There also she did not raise any

alarm or sought any help saying that she is unlawfully

confined or kidnapped or sexually assaulted.

26. While giving the history before PW.8 the

doctor, PW.1 did not reveal the theory of the appellant

tying her hands and legs, stuffing her mouth with cloth to CRL.A.No.1715/2019

commit rape on her. For the first time before the Court she

developed such theory.

27. It is also material to note that the charge sheet

was filed against the appellant for the offence punishable

under Section 506 of IPC on the ground that he kidnapped

and committed rape on her under criminal intimidation.

The trial Court acquitted him of the said charge. The State

has not preferred any appeal against that order. Therefore

that order has attained finality. On that count also, the

contention that the alleged sexual activity between the

accused and the victim was under criminal intimidation

does not inspire the confidence of this Court.

28. In Razak Mohammed's case referred to

supra, the Hon'ble Supreme Court in para 10 of the

judgment in similar circumstances, considering the

evidence of the witnesses 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 CRL.A.No.1715/2019

will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."

(Emphasis supplied)

29. In this case also, the prosecution has not

succeeded in proving that PW.1 was minor as on the date

of the offence. The evidence on record leads to inference

and probability of PW.1 being consenting party to the

sexual cohabitation. The trial Court without proper

appreciation of the evidence and law on the point even

after acquitting him for the charge punishable under

Section 506 of IPC, convicted him for the offences

punishable under Sections 363, 344, 376 of IPC which is

not sustainable in law. Therefore the appeal is allowed.

The impugned order of conviction and sentence is

hereby set aside.

The appellant is acquitted of the charges for the

offences punishable under Sections 363, 344 and 376 of

IPC and Section 6 of the POCSO Act. The appellant is set

at liberty forthwith, if his detention is not required in any CRL.A.No.1715/2019

other case. Fine amount deposited, if any, shall be

refunded to the appellant.

In view of disposal of the appeal, pending IAs stood

disposed of accordingly.

Communicate operative portion of the order to the

trial Court and the concerned Jail authorities.

Sd/-

JUDGE

Akc/KSR