Mr.Muneendra vs State Of Karnataka
2022 Latest Caselaw 148 Kant

                                     Crl.A.No.204/2016

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 05TH DAY OF JANUARY 2022

                       BEFORE

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

           CRIMINAL APPEAL No.204/2016
BETWEEN:

MR.MUNEENDRA
AGED ABOUT 24 YEARS
S/O.NARAYANASWAMY
R/AT NO.10, 1ST CROSS
NEAR MASJID, BASAWESHWARA LAYOUT
NAGASHETTY HALLI
SANJAYNAGAR
BANGALORE- 560 094                          ...APPELLANT

(BY SRI M.NARAYANA REDDY, AMICUS CURIAE)

AND:

STATE OF KARNATAKA
REP. BY THE INSPECTOR
SANJAYNAGAR POLICE STATION
SANJAYNAGAR
BANGALORE- 560 094                         ...RESPONDENT

(BY SRI H.S.SHANKAR, 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 27.01.2016 PASSED BY LIV
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE
CITY IN SPL.C.C.NO.576/2014.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                       Crl.A.No.204/2016

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                   JUDGMENT

Aggrieved by his conviction and sentence for the

offences punishable under Sections 354 and 506 of IPC,

Section 9(m) read with Section 10, Section 11 read with

Sections 12 and 18 of the Protection of Children from

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

accused in Spl.C.C.No.576/2014 has preferred the above

appeal.

2. The appellant was prosecuted in

Spl.C.C.No.576/2014 on the file of LIV Additional City

Civil & Sessions Judge, Special Court for the aforesaid

charges on the basis of the charge sheet filed by

Sanjaynagar police in Crime No.223/2014 of their police

station.

3. The case of the prosecution in brief is as

follows:

(i) PWs.1 and 2 are the mother and father of

PW.3 the victim girl aged 8 years. The house of the

appellant situated after crossing two houses from the Crl.A.No.204/2016

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house of PW.3. The sister of the appellant was conducting

tuitions for the children living around her house.

(ii) On 01.10.2014 at 2.00 p.m., the appellant

called the victim to his house in the guise of fetching him

some nippattu from the shop. He paid some money. She

brought nippattu from the shop and gave that to him.

When she was about to return to her house, the appellant

gripped her, closed the doors, shut her mouth and

pressed the breast. Further he forced her to place his

penis in her mouth. The victim resisted. He threatened

her of her life if she reveals the incident to others and left

her.

(iii) On reaching the home, the wailing victim

informed PW.1 about the incident. PW.5 runs a shop near

the house of the victim and the appellant. He found panic

PWs.1 and 3. They revealed the incident to him. He took

them to the police station.

(iv) PW.1 filed the complaint before PW.10 the

Sub-Inspector of Police of Sanjaynagar police station as

per Ex.P1. On the basis of such complaint, he registered

the first information report as per Ex.P10, arrested the Crl.A.No.204/2016

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appellant and recorded his voluntary statement on the

same day.

(v) PW10 sent the victim to PW.9 the Medical

Officer of Dr.Ambedkar Medical College and Hospital for

medical examination. The doctor examined the victim and

gave his certificate as per Ex.P8.

(vi) On 02.10.2014, PW.10 conducted the spot

mahazar as per Ex.P2 in the presence of CWs.10 and 11.

The victim showed the spot to the Investigating Officer.

The Investigating Officer recorded the statements of the

witnesses, collected the medical examination report.

(vii) On the requisition of the Investigating Officer,

the victim was examined by the Judicial Magistrate under

Section 164 of Cr.P.C and on completing the

investigation, he filed the charge sheet.

4. On hearing both side, the trial Court framed

the charges for the offences punishable under Sections

354 and 506 of IPC, Section 9(m) read with Section 10,

Section 11 read with Sections 12 and 18 of

POCSO Act. Since the appellant denied the charges, Crl.A.No.204/2016

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the trial was conducted. In support of it's case, the

prosecution examined PWs.1 to 11 and got marked

Exs.P1 to P12. The trial Court examined the appellant

with reference to the incriminating material. He did not

lead any evidence.

5. The trial Court on appreciating the evidence

on record by the impugned judgment and order convicted

the appellant for the charges and sentenced him as

follows:

  Sl. Conviction     Sentence        Fine   in Default
  No. for offence                    Rs.       sentence
      U/Sec.
   1  9(m)    r/w    Rigorous        30,000/-   Simple
      Section 10     imprisonment               imprisonment
      of POCSO       of five years              of six months
      Act
   2  Section 11     Rigorous     10,000/-      Simple
      r/w            imprisonment               imprisonment
      Sections       of one and                 of       four
      12 & 18 of     half years                 months
      POCSO Act
   3  506 of IPC     Rigorous        10,000/-   Simple
                     imprisonment               imprisonment
                     of one year                of      three
                                                months

6. The trial Court holds that the charges were

proved by the testimony of PW.3 the victim girl and the

same is corroborated by the evidence of her parents

PWs.1 and 2, and the Investigating Officer PW.10.

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Submissions of the learned Amicus Curiae:

7. There are material contradictions in the

evidence of PWs.1 and 2 regarding the place from where

PW.3 was picked up. Similarly there are material

contradictions in the evidence of PWs.1 and 3 and the

first information report regarding the time of the offence.

PWs.1 and 10 depose that PW.5 informed the police about

the incident, therefore the complaint Ex.P1 was hit by

Section 162 of Cr.P.C. PW.3 is not sterling witness.

Therefore the benefit of all such contradictions and

inconsistency shall go to the accused.

Submission of the learned High Court Government Pleader:

8. As per the prosecution, the appellant with

culpable intention to commit the offence started to spot

PW.3 from 9 a.m. However, he could not succeed in the

first attempt. Ultimately took her at 2 pm. Therefore

there is no material contradictions in the evidence with

regard to the time and place of the offence. The evidence

of PW.3 is not discredited. What is required to be Crl.A.No.204/2016

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registered under Section 154 of Cr.P.C. is concrete

information about the commission of the cognizable

offence. Even according to PWs.1 and 10, PW.5 only

informed the police that some untoward incident has

happened. That cannot be called as the information under

Section 154 of Cr.P.C. The presumption under Sections

29 and 30 of the POCSO Act were not rebutted. The

appellant has already served the sentence and he is

released on 23.10.2019. Therefore nothing survives for

consideration in this appeal.

9. Having regard to the rival contentions, the

point that arises for consideration is:

"Whether the impugned order of

conviction and sentence recorded by the trial

Court is sustainable in law?''.

10. The appellant was tried for the charges for

the offences punishable under Sections 354 and 506 of

IPC, Section 9(m) read with Section 10, Section 11 read

with Sections 12 and 18 of the POCSO Act and ultimately Crl.A.No.204/2016

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convicted for the said offences. Section 9(m) of the

POCSO Act reads as follows:

"9. Aggravated Sexual Assault.-

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

is said to commit aggravated sexual assault.

11. The term 'sexual assault' is defined under

Section 7 of the POCSO 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."

12. Section 6 of the POCSO Act as it stood as on

the date of offence provided for punishment for

aggravated penetrative sexual assault as follows:

"6. Punishment for aggravated penetrative sexual assault.- (1) Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."

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13. Section 11 of the POCSO Act deals with

definition of sexual harassment and Section 12 of the

POCSO Act makes the offence under Section 11 of the

POCSO Act punishable. For the purpose of this case,

Section 11(1) of the POCSO Act is relevant which reads as

follows:

"11. Sexual harassment.- A person is said to commit sexual harassment upon a child when such persons with sexual intent.-

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child;"

14. The penal provision of Section 12 of the

POCSO Act reads as follows:

"12. Punishment for sexual harassment.- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine."

15. The allegation of the prosecution is that the

appellant with sexual intent pressed the breast of PW.3

and attempted to put his penis in her mouth which would

attract Sections 7 and 9(m) of the POCSO Act. It is Crl.A.No.204/2016

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further alleged that he exhibited his private part to the

child with object that PW.3 shall see that. Thereby he

committed the offences punishable under Sections 10 and

12 of the POCSO Act. By such act he outraged her

modesty which is punishable under Section 354 of IPC

and he threatened PW.3 of her life if she reveals the

incident to anybody, thereby he committed the offence

punishable under Section 506 of IPC.

16. In prosecution for the offence under POCSO

Act Sections 29 and 30 of the POCSO Act confer the

presumption in favour of the commission of the offence

and the culpable mental state of the accused. Sections 29

and 30 of the POCSO Act read as follows:

"29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

30. Presumption of culpable mental state.- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such Crl.A.No.204/2016

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mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation.-In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact."

17. The evidence has to be appreciated in the

light of Sections 29 and 30 of the POCSO Act. The

evidence on record shows that the appellant did not

dispute that his house and house of PWs.1 to 3 situated

close to each other in the same vicinity. The suggestions

made to the witnesses themselves show that the

appellant admitted that the families of the appellant and

PWs.1 to 3 were known to each other. It was also not

disputed that at the time of the incident the victim was

aged 8 years. The only defence of the appellant is that he

has some rivalry with PW.5 Suresh Tent House Owner

and at his behest he is falsely implicated in the case.

18. The case of the prosecution was based on the

evidence of:

       (i)      PW.3 the victim;
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      (ii)    PWs.1 and 2 the parents of the victim;

(iii) PW.5 who allegedly found PWs.1 and 3 in a

panic state and guided them to go to the police station;

(iv) PW.4 the sister of the appellant;

(v) PW.6 the landlord of house of PWs.1 to 3;

(vi) PWs.7, 8 and 11 neighbours who were

res gestae witnesses;

(vii) PW.9 the medical officer who examined PW.3

the victim;

(viii) PW.10 the Investigating Officer.

19. PWs.4 to 8 and 11 did not support the case of

the prosecution. PWs.4 to 8 and 11 only state that they

came to know about occurrence of the incident when the

police visited the spot, but they do not have any direct

knowledge of the incident.

20. So far as the medical evidence, PW.9 the

doctor and Ex.P8 the medical examination report of the

victim PW.3 state that there were no external injuries or

indication of any recent sexual activities on the body of

the victim. Therefore the entire case of the prosecution Crl.A.No.204/2016

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rests on the evidence of PW.3 the victim and PWs.1 and 2

her parents.

21. The complaint was submitted by PW.1 based

on the revelation of the incident by PW.3. In her

complaint she said that initially the appellant once

approached PW.3 and sent her for fetching 'nippattu' at 9

a.m. Again for the second time in the afternoon he called

her for fetching 'nippattu' at 4 p.m. PW.3 came home

crying and revealed the incident to her.

22. It is true that PWs 1 to 3 in their evidence did

not depose about the 9.00 a.m. incident. Since there was

no assault on the victim when she was taken home for

the first time, the omission in the deposition about the

incident at 9 a.m. does not demolish the entire

prosecution case.

23. The evidence of PW.3 about the appellant

taking her at about 2 pm to her house in the guise of

fetching 'nippattu' for him and then advancing towards

her exhibiting private part and insisting her to insert his

private part in her mouth is cogent and consistent. She Crl.A.No.204/2016

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has also deposed about he pressing her breast and

threatening her of her life if she reveals the incident. The

same is not discredited in her cross-examination. She

said that she went home crying and revealed the incident.

24. PW.1 deposed in tune with the evidence of

PW.3. Except for the suggestion that PW5 due to some

rivalry against the accused, in collusion with PWs.1 and 2

has falsely implicated him, nothing is elicited to disbelieve

the evidence of PWs.1 and 3. PW.2 was only hearsay

witness. He says that he came home and learnt about the

incident. His evidence is not much material.

25. Though it is suggested to PW.1 that she

falsely implicated the appellant at the behest of PW.5 due

to ill-will between him and PW.5, no such suggestion is

made in the evidence of PW.5 himself. Therefore the

defence with regard to the false implication at the behest

of PW.5 is rightly rejected by the trial Court.

26. So far as the contention that Ex.P1 is hit by

Section 162 of Cr.P.C, the First Information Report Crl.A.No.204/2016

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contemplated under Section 154 of Cr.P.C is a concrete

information about the commission of cognizable offences.

No doubt PWs.1 and 3 deposed that they informed the

incident to the tent house owner PW.5 and he informed

the police. PW.3 said that PW.5 informed the police. PW.1

has not stated how he informed the police. PW.1 states

that she filed the complaint Ex.P1. In the cross-

examination of PW.5 no suggestion was made to show

that he went to police and lodged the complaint. Mere

flash telephonic information to the police does not fall

under the information of the cognizable offence as

required under Section 154 of Cr.P.C. Therefore the

contention that Ex.P1 was hit by Section 162 of Cr.P.C

also cannot be countenanced.

27. The accused did not state the particulars of

the alleged rivalry between him and PW.5 either in the

examination of the prosecution witnesses or in his

examination under Section 313 of Cr.P.C. The

presumption under Sections 29 and 30 of the POCSO Act

was not rebutted. Considering all such aspects the trial Crl.A.No.204/2016

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court rightly convicted the appellant. Therefore the order

of the conviction does not call for any interference.

Learned Amicus Curiae submits that having regard

to the age of the appellant, lenient view may be taken

while imposing the sentence.

Since the appellant has already served the

sentence, the question of taking lenient view of the

sentence does not survive for consideration. Therefore

the appeal deserves no merit and dismissed accordingly.

The Court places on record the appreciation for able

assistance rendered by Sri M.Narayana Reddy, learned

Amicus Curiae. Registry shall pay him the remuneration

of Rs.15,000/-.

Sd/-

JUDGE KSR/PKN