Yellappa S/O Mariyappa ... vs The State Of Karnataka
2022 Latest Caselaw 391 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 11th DAY OF JANUARY, 2022

                        PRESENT

 THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                           AND

         THE HON'BLE MR. JUSTICE S. RACHAIAH

           CRIMINAL APPEAL NO.100157/2020


BETWEEN:
YELLAPPA,
S/O MARIYAPPA KARISAKRANNAVAR
AGE 34 YRS., OCC: AUTO DRIVER/GOUNDI WORK
R/O MARITUPUR, TQ. SAVANUR,
DIST. HAVERI.
                                        .. APPELLANT
(BY SRI. HEMANTKUMAR L. HAVARAGI, ADV.)

AND:

THE STATE OF KARNATAKA,
THROUGH SAVANUR PS
REP. BY SPP
HIGH COURT OF KARNATAKA
BENCH AT DHARWAD.
                                     .. RESPONDENT
(BY SRI.V.M. BANAKAR, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CRIMINAL PROCEDURE CODE, 1973 PRAYING TO SET
ASIDE THE ORDER OF CONVICTION DATED 6.11.2019 AND ORDER
OF SENTENCE DATED 7.11.2019 PASSED BY THE LEARNED I
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE,
HAVERI FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363,
                                      Crl.A. No.100157/2020

                             2


376(2)(N) OF THE IPC AND SECTIONS 4, 6, 8 AND 12 OF POCSO
ACT 2012 AND CONSEQUENTLY ACCUSED BE ACQUITTED FOR THE
ABOVE MENTIONED CHARGES IN THE ENDS OF JUSTICE.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING
THIS DAY, DR.H.B.PRABHAKARA SASTRY, J., DELIVERED
THE FOLLOWING:

                        JUDGMENT

The present appellant has challenged his conviction for

the offences punishable under Sections 363, 376(2)(n) of the

Indian Penal Code (hereinafter for brevity referred to as

'IPC') and Sections 4, 6, 8 and 12 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter for

brevity referred to as 'POCSO Act') and order on sentence

passed by the learned I Additional District and Sessions

Judge and Special Judge, Haveri (hereinafter for brevity

referred to as 'Special Court') by its judgment of conviction

and order on sentence dated 06.11.2019 and 07.11.2019

respectively in Spl.S.C. No.175/2018.

2. The summary of the case of the prosecution in

the Special Court is that, on 05.08.2018 at about 2:00 am in

the house of CW.9 and CW.12, when the victim, who was Crl.A. No.100157/2020

said to be a minor, opened the door on knocking by the

accused, at that time, the accused took the victim along with

him and thus has kidnapped her. After taking her in a

autorickshaw brought by him bearing registration No.KA-

26/A-6949, the accused took her to Gadag and from there,

took her to Goa. There he kept the victim for about three

days and then shifted her to a village called Donamar in the

State of Maharashtra and lodged her in a rented house till

she was brought back by the complainant Police, after about

one and a half months from the date of the alleged kidnap.

In the meantime, the accused has committed repeated

sexual assault and subjected the victim to repeated act of

rape and thus has committed offences punishable under

Sections 363, 376(2)(n) of IPC and under Sections 4, 6, 8

and 12 of POCSO Act.

      3.      The      accused             who       was       arrested

and        produced    before        the     Court,        denied    the

charges               levelled               against                him.
                                               Crl.A. No.100157/2020

Trial was held, wherein, the prosecution in order to prove the

alleged offence against the accused examined thirteen

witnesses from PW.1 to PW.13 and got marked twenty three

documents from Exs.P-1 to P.23 and material objects M.Os.1

to 4 and closed its side. Statement of the accused under

Section 313 of Criminal Procedure Code was recorded. On

behalf of the accused, neither any witness was examined nor

any documents were marked as Exhibits.

4. After hearing both sides, the trial Court by its impugned

judgment dated 06.11.2019 convicted the accused for the offences

punishable under Sections 363, 376(2)(n) of IPC and under Sections 4,

6, 8 and 12 of POCSO Act and by its order on sentence dated

07.11.2019 sentenced the accused to undergo seven years

imprisonment and fine of `2,000/-, in default to pay fine, to undergo

simple imprisonment for one month for the offence punishable u/s 363

of IPC, sentenced to undergo imprisonment for life and a fine of

`5,000/- in default of payment of fine, to undergo simple imprisonment

for two months for the offence under Section 376(2)(n) of IPC and for

the offences punishable under Sections 4 and 6 of POCSO Crl.A. No.100157/2020

Act, sentenced the accused to undergo seven years imprisonment and

a fine of `2,000/- in default to pay fine, to undergo simple

imprisonment for one month for the offence punishable under Section 8

of POCSO Act and to undergo three years imprisonment and fine of

`1,000/- in default to pay fine, to undergo simple imprisonment for

fifteen days for the offence punishable under Section 12 of POCSO Act.

5. The respondent is represented by the learned

Additional State Pubic Prosecutor.

6. The Special Court records were called for and the

same is placed before this Court.

7. Heard arguments from both side. Perused the

materials placed before this Court including the Special Court

records and the impugned judgment.

8. In the light of the above, the points that arise for

our consideration are:

i) Whether the prosecution has proved beyond reasonable doubt that on the date 06.08.2018 at about 2:00 am from the Crl.A. No.100157/2020

house of CWs.9 and 12, the accused kidnapped the victim girl, who was minor in her age, and thereby committed an offence punishable under Section 363 of IPC?

ii) Whether the prosecution has proved beyond reasonable doubt that the accused after taking the victim girl along with him, lodged her at different places in Goa and the State of Maharashtra for more than a month and subjected her to repeated sexual intercourse and practiced penetrative sexual assault upon her repeatedly and thereby has committed offences punishable under Section 376(2)(n) of IPC and Sections 4 and 6 of POCSO Act?

iii) Whether the prosecution has proved beyond reasonable doubt that the accused by touching the private and secret parts of body of the victim with the knowledge of the minority of the victim, has committed an offence punishable under Section 8 of the POCSO Act?

iv) Whether the prosecution has proved beyond reasonable doubt that the accused with the knowledge of minority of the victim, has committed sexual harassment upon the Crl.A. No.100157/2020

victim and thereby has committed an offence punishable under Section 12 of POCSO Act?

v) Whether the impugned judgment of conviction and order on sentence warrants interference at the hands of this Court?

9. Among the thirteen witnesses examined by the

prosecution, the material witnesses who speak about the

alleged incident are mainly PW.1, PW.2, PW.3, PW.8 and

PW.9.

10. PW.1 is the alleged victim girl, who in her

evidence in examination-in-chief has sated that the accused

was a known person to her family since her family members

were engaging autorickshaw being driven by the accused, on

several occasions. On the date 05.08.2018 while she was in

her house along with her grandmother and two sisters, the

accused knocked the door of her house at about 2:00 am, at

that time, her parents were not in her house, as her mother

had been to a place called Shiggaon to consult a medical

Doctor and her father had been to a place called Hassan

pursuing his avocation as a construction labour. The witness Crl.A. No.100157/2020

has further stated that on the knocking of the door by the

accused at 2:00 am, she opened the door, then the accused

took her with him and made her to sit in the autorickshaw

and took her to a place called Gadag in the very same

autorickshaw. From there, he took her to a place called

Belagavi from there to another place called Bicholi which is

near Panaji in Goa. There, he kept her in a rented house for

about three days. On those three days, since the witness

was in the mensus period, he did not proceed further.

However, from the said place, he took her to a place called

Donamar in the State of Maharashtra and lodged her in a

rented house for about one and a half months. During the

said period, he repeatedly and daily subjected her to sexual

harassment and practiced rape upon her. The witness has

further stated that after one and half months she being taken

away by the accused from her house, the complainant-Police

came to Donamar and brought her back to her village. She

has revealed all these details, both, before her mother and

also before the learned Magistrate. The witness has also

stated that the Police took her to the Doctor and got her Crl.A. No.100157/2020

medically examined on 28.09.2018. They have also collected

several articles including the dress material worn by her.

The witness further stated that, on the date 30.10.2018, the

Police took her to the village Donamar in the State of

Maharashtra and as per the spot shown by her, they drew a

scene of offence panchanama which panchanama she has

identified at Ex.P-1 and rough sketch of the scene of offence

as Ex.P-2. Identifying the two photographs at Exs.P-4 and P-

5, the witness has stated that those photographs were also

captured by the Police on showing spot of offence. In her

cross-examination from the accused's side also, she adhered

to her original version. She has given some more details as

to what made her not to reveal about the incident to any of

the people either in Gadag, Belagavi, Goa or in Maharashtra.

11. PW-2-Bibijan Chopdar (CW-1) is the complainant

in the case. She has stated that PW.1-victim is her daughter

and she was aged about 17 years 2 months as on the date of

the incident. She stated that her husband, working as a

mason/construction labour, was away from the house at the Crl.A. No.100157/2020

time of the incident and he used to visit the house once or

twice in a month. At the time of the incident, she too was

away from the house and had gone to Shiggaon to consult a

Doctor. As such, in the house it was only her mother and her

daughter including the victim were there. The witness stated

that after returning to her house on 06.08.2018, she noticed

the absence of PW.1 in the house and on enquiry, she came

to know that her daughter was found missing. In this regard,

after making some search, she lodged a police complaint,

which was identified at Ex.P-6. The witness has further

stated that one and half months, after her compliant, the

police brought her daughter (PW-1) to her house stating that

she was in a village in Donamar in Maharashtra. By

enquiring with her daughter, she came to know that on

05.08.2018, in the late night and in the early morning of

06.08.2018, the accused went to their house and getting the

door opened, had kidnapped her daughter (PW-1) from their

house and took her to different places i.e. to Gadag from

there to Belagavi and from there to Bicholi and finally to

Donamar village in the State of Maharashtra. The witness Crl.A. No.100157/2020

has stated, the victim-daughter has also told her that by

lodging in a rented house at Donamar village, the accused

committed repeated act of penetrative sexual assault and

subjected her to repeated act of rape. The witness stated

that, after returning of her daughter, the Police took her

daughter for medical examination to the Government

Hospital at Savanur and she also accompanied her daughter.

There, a lady Doctor examined her daughter and collected

the dress material worn by her daughter. Both PW.1 and

PW.2 have identified the accused in the Court as the one who

has committed the alleged act. It is in her cross-

examination, PW.2 has adhered to her original version

though she has given some more details of the alleged

commission of offence by the accused.

12. PW.3-Mijaba, the younger sister of the victim girl,

has stated that on the night of the incident, on knocking of

the door by the accused, it was PW.1 who opened the door.

She too was awake at that time and noticed that it was the

accused who had knocked the door and got the door opened.

Crl.A. No.100157/2020

Immediately after opening the door, the accused seeing her

sister (PW.1), dragged her near the autorickshaw brought by

him and also bolting the door of the house from its front side,

took her sister away from the home. She revealed the

incident to her grandmother, who was at home. On the next

day, her mother PW.2 returned from Shiggaon before whom

also she narrated the details. Nearly after two months of the

incident her sister was brought back and she came to know

that she(PW.1) was taken to a place called Goa and was

lodged there for about three days. The witness stated that,

after enquiring, her sister PW.1 told her that the accused had

taken her and also has subjected her to sexual assault.

From the accused's side, nothing could be elicited which

could weaken her evidence given in examination-in-chief.

On the other hand, a suggestion was made to the witness

from the accused's side suggesting that, the accused did not

take PW-1 forcibly, on the other hand, PW.1 herself

voluntarily went and sat in the autorickshaw and has gone

along with the accused. However, the witness has not

admitted the said suggestion as true.

Crl.A. No.100157/2020

13. PW.8-Dr.Sujata Sangur has stated that she being

a Medical Officer at Taluka Hospital, Savanur, has examined

the victim girl on the date 28.09.2018 at about 2:00 pm who

was brought by the complainant Police with the history of

sexual assault. She has stated that she did not notice any

external injuries on the victim minor girl. On the local

examination and genital area, she found no menses period

from one month twenty days. After conducting urine

pregnancy test, she referred the patient for higher treatment

of ultra sound at District Hospital, Haveri. The witness also

stated that though she has not mentioned in the preliminary

report about condition of hymen, but, actually, it was

ruptured. She further added stating, non-mentioning of

rupture of hymen in the preliminary report was due to

pressure of work. The witness further stated that she also

collected swabs from vulva, vagina and undergarments and

sent for FSL examination through Police. As she could form her

opinion only after arrival of FSL report, in the meantime, she

issued Preliminary Medical Report as per Ex.P-16 and after

going through the FSL report which is at Ex.P-17, she has Crl.A. No.100157/2020

given her final report as per Ex.P-18. She stated that there

were chances of non-detection of seminal stains on the

articles collected by her and sent to FSL due to long gap of

sexual intercourse between them, change of dress, washing

of dress, bathing etc. However, she concluded her

examination-in-chief by stating that the victim was used to

an act of sexual intercourse.

14. Dr. Shankargouda Hiregoudar, a Surgeon at

Taluka Hospital, Savanur, who was examined as PW.9 by the

prosecution has, in his examination-in-chief, stated that on

28.09.2018 at about 4:50 pm, he examined the accused-

Yallappa brought by the complainant-Police. He did not

notice any external injures on the accused. However, he

collected swab from the glans of penis and sent the same for

FSL. He formed an opinion that there was nothing to suggest

that the person was incapable of performing sexual

intercourse. In this behalf, he has issued a

preliminary report as per Ex.P-19. The witness stated

that after going through FSL Crl.A. No.100157/2020

report, he has issued final report as per Ex.P-20. This

witness also stated that there were chances of non-detection

of seminal stains on the articles collected by him and sent to

FSL due to long gap of sexual intercourse between them,

change of dress, washing of dress, bathing etc.

15. The other witnesses, who were examined by the

prosecution, though, not material to prove the guilt but

peripheral witness, which the prosecution used for the

purpose of its case and also to establish the contention of

proper investigation, are PW.4, PW.5, PW.6, PW.7, PW.10,

PW.11, PW.12 and PW.13.

16. PW.4-Fakirappa Lamani has stated that, in this

case, scene of offence panchanama as per Ex.P-8 was drawn

in his presence on 09.08.2018. The said place of the offence

was the residence of the victim and it was CW-13, who has

shown the spot. It is after reading the panchanama, he has

subscribed his signature to the panchanama. In his cross-

examination, he has also given some more details about the

drawing of panchanama stating that the said panchanama Crl.A. No.100157/2020

was drawn with respect to the alleged kidnapping of the girl

from the said house.

17. PW.5-Shantappa Lamani has stated that on

28.09.2018 in the afternoon, the complainant-Police have

seized the autorickshaw by drawing the seizure pachanama as

per Ex.P-9. He has stated that, it was stated to him that, the

autoriskshaw belong to the accused and photographs were

also taken about the process of seizure of autorickshaw which

photographs the witness has identified at Exs.P-11 and P-12.

Stating that a rough sketch was also drawn regarding the

process of seizure, the witness has identified it at Ex.P-10.

The witness further stated that the complainant-Police

has summoned him again to their police station on the date

12.10.2018 on which date, four articles were produced

before him and seized by the police, which articles the

witness has identified at M.Os.1 to 4. Though this witness

was subjected to a detailed cross-examination, however,

except making denial suggestion to the witness, nothing was

elicited in his cross-examination.

Crl.A. No.100157/2020

18. PW.6-Pratap Singh Rajput has stated that the

scene of offence panchanama with respect to alleged sexual

assault and rape of the victim girl was drawn in his presence

by the Police on 30.10.2018 at Donamar in the State of

Maharashtra. The witness stated that it was CW-8 who had

shown the spot of the alleged offence. Stating that the Police

have also captured photograph of the place, the witness has

identified the panchanama at Ex.P-1 and the rough sketch of

the place of offence at Ex.P-2. In his cross-examination,

except eliciting the details that he is working as a co-worker

with the father of the alleged victim girl, nothing more could

be elicited. On the other hand, a suggestion was made to

the witness that the witness was taken from Dharwad to

Goa. By suggesting so, the accused has admitted that the

witness was taken by the police with them for the purpose of

drawing of scene of offence panchanama.

19. One Sri.Ambbareesh Harlapur (CW.17), who was

examined as PW.7 by the prosecution stated that he knows

the accused who belongs to his place and that the accused Crl.A. No.100157/2020

was pursuing his avocation as an autorickshaw driver. The

witness stated that the accused was married and was living

in a village called Marutipura which is the village of his wife.

The witness stated that on the date 06.08.2018 in the

morning at about 6'O clock, the accused stating that he is

going to Gadag to pursue his avocation, requested him to

keep his autorickshaw with him and asked him to collect the

autorickshaw at the bus stand in Gadag. Accordingly, he

went to the bus stand at Gadag where the accused handed

over him the possession of the autorickshaw and after giving

autorikshaw, the accused left towards Hubballi. The witness

stated that he did not notice as to who accompanied the

accused at that time. The witness also stated that

subsequently he came to know that the accused has

kidnapped a girl from the place called Allipura and taken her

to Goa. The witness also stated that the accused has

subjected the said girl to rape in which connection, the

mother of the girl had also lodged a police complaint.

Since the witness did not reveal presence of the victim

girl with the accused while the accused handed over him the Crl.A. No.100157/2020

possession of the autorickshaw, the prosecution was

permitted to treat the witness as hostile and to cross-

examine him.

The prosecution in the cross-examination of the

witness, though, could not elicit from him that the victim was

also with the accused in Gadag on the date 28.09.2018 but

could able to elicit from him that the accused had detained a

girl, who was minor in her age in a place called Donamar in

the State of Maharashtra in a rented house and had

subjected her to sexual assault in the said place. Except

making denial suggestion, nothing could be elicited in the

cross-examination of the said witness from the accused's

side.

20. PW.10-Veerabhadrappa Shirhatti, who is the

Assistant Sub-Inspector of Police of the complainant Police

Station, has stated that it was him who conducted and drawn

panchanama as per Ex.P-1 in Donamar village in the State of

Maharashtra on 30.10.2018 as per the instructions of his

seniors. Apart from identifying panchanama at Ex.P-1, the Crl.A. No.100157/2020

witness has also stated that rough sketch of the place was

also prepared as Ex.P-2 and photographs as per Exs.P-4 and

P-5 were also captured in the spot. In his cross-examination,

the witness has given more details as to the time of his

departure from the police station and the time they reached

the place and the process followed while drawing the scene

of offence panchanama from which the accused did not get

any support in his favour.

21. PW.11-K.N. Jagannath Reddy, Police Inspector of

Savanur Police Station for a particular period, has stated that

he after taking over investigation from CW-28, conducted

further investigation in which he has sent the victim girl for

medical examination to the Taluk Hospital at Savanur and

got her medically examined, recorded the voluntary

statement of the accused as per Ex.P-21, seized the

autorickshaw at Gadag by drawing the seizure panchanama

as per Ex.P-9, prepared sketch as per Ex.P-10 and took

photographs as per Exs.P-11 and P-12 of the seizure of the

vehicle. The witness has also stated that he also got the Crl.A. No.100157/2020

accused medically examined by the Surgeon at Taluka

Hospita, Savanur and recorded the statements of some of

the witnesses. The witness stated that, during the course of

his investigation he also requested and collected the study

certificate of the victim girl as per Ex.P-22 and obtained an

endorsement from the competent authority to the effect that

there was no birth/death certificate with respect to recording

of the birth of the victim girl. He further stated that he

handed over the further investigation to his successor i.e.

CW.31.

22. CW-31 Mr. Nagaraj Mylar, who was examined as

PW.12 has stated that after taking up further investigation in

the matter from PW-11, he has completed the investigation

and filed charge-sheet in the matter against the accused. He

also stated that after receiving FSL report, he has submitted

the same to the Court in the case.

23. The last witness examined by the prosecution in

its behalf is PW-13-Ahameer Basha Bannur, Head Master of

the Government Higher Primary School of Allipura, who has Crl.A. No.100157/2020

stated that at the request of the complainant-Police and after

verification of the Admission Register No.1 and Book No.3, he

has issued the certificate of the date of birth of the victim girl

as per Ex.P-22. The contents of which are true and correct.

The witness in his cross-examination has also stated that at

the time of admission, they had secured Admission Form,

Certificate issued by the Anganwadi and also admission

application submitted by the parents. It is based on which,

the date of birth of the victim girl is mentioned. Thus, the

witness has added some more details to substantiate his

submission regarding accuracy of the date of birth of the

victim girl in his cross-examination.

24. It is in the light of the above evidence of the

prosecution witnesses, it was the argument of the learned

counsel for the appellant that the offence punishable under

Section 363 of IPC is not made out since the alleged victim

girl herself has voluntarily accompanied the accused to the

different places. On the second point of his argument, he

submitted that the prosecution has failed to prove the Crl.A. No.100157/2020

alleged repetitive sexual assault and rape upon the alleged

victim by the accused. With this, he submitted that the

impugned judgment warrants interference in the form of its

setting aside and acquittal of the accused from the alleged

offences.

25. Learned Additional State Public Prosecutor in his

argument submitted that all the witnesses examined by the

prosecution, have supported the case of the prosecution on

the material aspect. None else than the victim herself has

given the details of the offences committed by the accused.

Her evidence is trustworthy which does not require any

corroboration by any other witness. However, the evidence of

mother and sister of the victim girl also further strengthens

the case of the prosecution and proves the guilt of the

accused beyond reasonable doubt. Learned Additional State

Public Prosecutor further submitted that even though the

Doctors have not categorically stated about the existence of

the evidence of sexual assault on the victim, however, their

undisputed evidence that the girl was subjected to sexual Crl.A. No.100157/2020

intercourse and that there was nothing to show that the

accused was incapable of committing sexual intercourse,

when read in the light of the evidence of PW-1, would clearly

establish the alleged guilt of the accused beyond reasonable

doubt. It is considering all these aspects, the Special Court

has convicted the accused for the alleged offences, which

does not warrant any interference by this Court. In his

support, the learned Additional State Public Prosecutor relied

upon the judgment of the Hon'ble Apex Court in Vijay alias

Chinee v. State of Maharashtra reported in (2010) 8

SCC 191 which judgment would be referred to at the

relevant stage hereinafterwards.

26. The offences alleged against the accused is apart

from the ones punishable under Section 363 and 376(2)(n)

of IPC are also the one under Sections 4, 6, 8 and 12 of the

POCSO Act. As such, the age of the alleged victim girl plays

an important role in the matter.

Crl.A. No.100157/2020

27. According to prosecution, as on the date of the

alleged commission of the offence, which is in the early

morning of 06.8.2018, the girl was aged seventeen years and

two months, as such was minor in her age. In order to prove

the age of the girl, the prosecution has relied upon the

evidence of none else than the victim as PW.1, her mother as

PW.2 and the School Head Master, who was examined as

PW-13 with the documentary evidence at Ex.P-22.

28. The alleged victim girl who was examined as

PW.1 on 21.12.2018 has stated her age to be 17 years.

Except giving her age as 17 years as on the date of her

examination-in-chief, she has not made any statement about

her age as on the date of the alleged offence. For the

reasons best known to it, the prosecution, has also not

elicited any details form her regarding her age as on the date

of the alleged offence. However, her mother PW.2 in her

evidence in the examination-in-chief has stated that, as on

the date of the alleged offence, her daughter-victim girl was

aged 17 years 2 months. The said statement of PW.2 about Crl.A. No.100157/2020

the age of the victim girl has not been specifically denied or

disputed in her cross-examination.

PW.8-the Doctor, though has not stated about any test

conducted by her to ascertain the age of the alleged victim

girl examined by her, however, has stated in her

examination-in-chief that she did not notice any external

injuries on the victim minor girl. She has shown

that the alleged victim girl whom she examined was

considered as a minor in her age by her (the Doctor).

However, the main and clinching evidence regarding the age

of the alleged victim girl is the evidence of PW-13 who is the

Head Master of the Government Higher Primary School

Allipura where the victim girl was studying, has stated that at

the request of the police, he has issued date of birth

certificate of the victim girl based upon the Admission

Register No.1 and Book No.3, the contents of which are true

and correct. Apart from the same in his cross-examination,

he has also stated that his predecessor in the office had

made an entry in the register at the time of admission of the

victim girl to their school based on the Admission Form and Crl.A. No.100157/2020

the certificate issued by Anganwadi. Thus, he has not only

relied upon the certificate issued by Anganwadi but also the

Admission Form submitted by the parents. Accordingly, the

school record has shown that the date of birth mentioned in

Ex.P-22 is correct date of birth of the alleged victim girl.

Ex.P-22, which is the certificate issued by the Head Master

shows that considering the school records maintained by

them the date of birth of the victim girl is 06.06.2001.

Our Hon'ble Apex Court in Mahadeo son of Kerba

Maske v. State of Maharashtra and Another reported in

(2013) 14 SCC 637 was pleased to observe in para 12 of its

judgment that in the light of the statutory rule in the form of

Juvenile Justice(Care and Protection of Children), Rules 2007,

prevailing for ascertaining the age of a juvenile, it is their

opinion that the same yard stick could be rightly followed by

the Courts for the purpose of ascertaining the age of the

victim as well.

The said Rule 12(3) of Juvenile Justice Rules, reads as

below:

Crl.A. No.100157/2020

"12. Procedure to be followed in determination of Age.-

        (1)        xxx
        (2)        xxx
        (3)        In every case concerning a child or juvenile

in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;"

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case, shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, recorded a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause(b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

29. Applying the said principle in the instant case, it

is to be necessarily held that in view of the fact that the date

of birth certificate of the victim girl at Ex.P-22 issued by the Crl.A. No.100157/2020

competent authority and which document has withstood the

cross-examination of PW.13 and proved to be reliable, then it

is the said birth certificate issued by the school first attended

by the victim inspires confidence to believe and accept the

same. As such, without much discussion, it can be held that

the prosecution has proved that the age of the victim girl as

on the date of the alleged offence was 17 years and 2

months. As such, as per the definition of 'child' under

Section 2(d) of POCSO Act, the alleged victim girl being a

person below the age of 18 years, she is not only minor in

her age but also a child under the POCSO Act.

30. About alleged incident of kidnapping, the

evidence of PW.1 and PW.3 are, as already observed, very

material and plays a vital role. It is not in dispute that

accused was a known person to the family of the alleged

victim girl. The same has come in the evidence of PW.1,

PW.2 and PW.3. On the other hand, a suggestion was also

made to PW-1 in her cross-examination that the family of the

victim girl had hired the services of the autorickshaw being Crl.A. No.100157/2020

run by the accused for about not less than seven to eight

times. Thus, the accused who is a known person to the

family of the complainant is said to have come to the house

of the victim girl in the early hours on 06.08.2018 at about

2:00 am and knocked the door which made the victim girl to

open the door. The evidence of PWs.1 and 3, who are the

alleged victim girl and her younger sister respectively is clear

on the said aspect. PW.3 has also stated that at the sound of

knocking of the door, she too got up and saw as to who had

come and what was happening. It is stated by PW-1, the

alleged victim girl, that accused held her hand and made her

sit in the autorickshaw and drove the said autorickshaw to

Gadag and from there to Belagavi by bus followed by Bicholi

near Panjai in Goa and then to a village Donamar at

Maharashtra. In her cross-examination, the witness has

stated that her sister has seen her going out from the house.

The said statement of the witness that the accused came and

knocked the door on which she opened the door and accused

took her in the autorickshaw from that house to different

places has not been denied in her cross-examination.

Crl.A. No.100157/2020

Similarly, the evidence of PW.3, who also claims to be an

eyewitness to the said alleged incident of kidnapping, that at

the knocking of the door by the accused, her sister-PW.1

opened the door and the accused drew her and pushed PW.3

inside the house and closed the door and bolted it from

outside and took PW.1 in the autorickhaw has not been

denied in her cross-examination. On the other hand, a

suggestion was made to the witness from accused's side

suggesting that it was PW-1 herself came and sat in the

autorickshaw and went along with the accused. PW-3 denied

the said suggestion. But by making the said suggestion, the

accused has admitted that on that night, it was him who took

PW.1 along with him in an autorickshaw from the house of

PW.2.

PW.2-mother of the victim has also clearly stated that,

as revealed to her in the house after her return from

Shiggaon that it was the accused and the accused alone who

visited their house and took her daughter i.e. PW.1 with him

in an autorickshaw. Therefore, the accused taking away

PW.1, who was minor in age from her house, without the Crl.A. No.100157/2020

consent of her parents and whose lawful guardianship PW.1

was there, is stood established beyond reasonable doubt.

31. Learned counsel for the appellant though has not

denied that the accused has taken PW.1 in his autorickshaw

to Gadag and subsequent to a place in the Goa and

thereafter to a village in Maharashtra but specifically stated

that the said act was not by any force of the accused but

PW.1 herself has voluntarily joined the accused, as such, it

would not attract offence punishable under Section 363 of

IPC. Learned counsel for the appellant also submitted that

under Muslim Personal law, the marriageable age of a

Muslim girl is 15 years, as such, the act of PW-1 going along

with the accused cannot be called as an act of "kidnapping'.

32. PW.1 in her evidence has neither stated that she

voluntarily accompanied the accused while leaving her house

on that night nor she has stated that the accused has forcibly

taken her away from her house, particularly from the

guardianship of her parents. She has only stated that, at the

knocking of the door by the accused, she opened the door Crl.A. No.100157/2020

and accused held her hand, made her to sit in the

autorickshaw. Thereafter, he took her in the same

autorickshaw to a place called Gadag. Thus, confining to the

evidence of PW.1 alone it cannot be said whether the

accused has forcibly taken her away from her house or

whether the girl joined him without showing any resistance

and on her own. However, the evidence of PW.3 shows that

the moment PW.1 opened the door, the accused drew her

outside and pushed PW.3 inside the house, bolted the door of

the house from outside and took PW.1 in the autorickshaw

and left the place. She further stated that after returning of

her sister PW.1, when she enquired her, she told that the

accused took her away and spoiled her. Further, PW.3 also

denied a specific suggestion made to her from accused side

that, PW.1 herself went and sat in the autorickshaw and left

the place along with the accused. Thus, by specifically

denying that her sister voluntarily and on her own has left

home by joining the accused and also by specifically stating

that the accused drew her sister the moment she opened the

door and took her in a autorickshaw, PW.3 made it clear that Crl.A. No.100157/2020

PW.1 going away from the home accompanied by the

accused was not a voluntary act of PW.1.

33. Learned counsel though stated that though the

marriageable age of a Muslim girl under Mohamadden Law by

which the alleged victim girl is governed by, is 15 years, it

cannot be ignored of the fact that, both, even IPC, under

Section 361 and POCSO Act, under Section 2(d), mention a

female child to be a girl of age below 18 years of age. As

rightly submitted by the learned Additional State Public

Prosecutor Section 42A of POCSO Act, the provision of the

said Act is in addition to and not in derogation of any other

provisions of law for the time being in force and in case of

any inconsistency, the provisions of the POCSO Act shall

have overriding effect on the provisions of any such law to

the extent of inconsistency.

In addition to the above, a Co-ordinate Bench of this

Court in Mr. Rahul @ Nayaz Pasha v. State of Karnataka

and another in Criminal Appeal No.1173/2021 date of

disposal 16.06.2021, in its order was pleased to observe that Crl.A. No.100157/2020

in the case before it, the age of the victim was 15 years, as

such, her consent was immaterial. It has further observed

that though the second marriage was permissible under the

Mohammedan law but the personal law cannot override the

Special Law of POCSO Act, Child Marriage Restraint Act and

General Penal Code of this Country. Therefore when both the

POCSO Act under Section 2(d) defines a 'child' as a person

below the age of 18 years and since the IPC under Section

361 while defining 'kidnapping' from lawful guardianship also

mentions that the age of the kidnapped girl must be under

the 18 years of age, the argument of the learned counsel for

the appellant that the marriageable age of a female under

Mohamadden Law being 15 years, the girl aged above 15

years and below 18 years is not amenable to the definition of

'kidnap' from the lawful guardianship under Section 361 of

IPC, is not acceptable. Even though assuming that PW.1,

has, on her own joined the accused in leaving her house, still

the consent of a minor is not being a valid consent and PW.1

being a minor in her age, was under the lawful guardianship

of her parents and admittedly when there is no consent by Crl.A. No.100157/2020

her parents for taking PW.1 with him by the accused, the

proven act of the accused of taking away PW.1 from her

house without the consent by her guardians is proven to be

a commission of an offence of kidnapping by the accused.

34. The evidence of PW.1, PW.2 and PW.3 that, the

accused, after kidnapping PW.1 had taken her to a place

called Bicholi near Panaji in Goa and thereafter to a place

called Donamar in the State of Maharashtra has not been

specifically denied or disputed from the accused's side.

Except making a general denial suggestion in the cross-

examination of PW.1, the accused has not made any attempt

in shakening the credibility of the evidence given by PW.1,

PW.2 and PW.3 in this regard. The said evidence of PW.1,

PW.2 and PW.3 would clearly go to show that the accused

had taken PW.1, initially to a place called Gadag from there

to Belagavi in a bus and from Belagavi to Bhicholi and

thereafter to a village Donamar in the State of Maharashtra.

The evidence of PW.5 that the autorickshaw used by the

accused in committing the said offence was seized in his Crl.A. No.100157/2020

presence by drawing the seizure panchanama as per Ex.P-9

at Gadag and his identification of the sketch at Ex.P-10 and

the photographs at Ex.P.11 and P.12 and also the

photographs of autorickshaw along with the Police and the

panchas would further corroborate the evidence of PW.1 that

she was taken in a autorrickshaw to Gadag and thereafter to

different places. Similarly, the evidence of PW.6 that the

mahazar and Panchanama as per Exs.P.1 and P.2 were

drawn in his presence in a house at Donamar in the State of

Maharashtra and the evidence of PW.10 that it was him who

visited Maharashtra State along with panchas and drew those

two panchanamas and has also taken photographs as per

Ex.P.5 would further corroborate the evidence of PW.1 that

after her kidnap from her house, the accused has taken her

to a village called Donamar in the State of Maharashtra and

had kept there for a long time.

35. It is also the evidence of PW.1, the alleged victim girl,

that when she was kept in the house at Donamar, the accused

committed rape upon her every day and several times and also

had subjected her to penetrative sexual assault. The said Crl.A. No.100157/2020

categorical statement of none else than the alleged victim girl

could not be shaken in her cross-examination made by the

accused's side except suggesting to the witness that in the

State of Maharashtra, the accused has not subjected her for

any sexual assault. The evidence of PW.1 that the accused has

subjected her to repeated act of rape during her stay in

Donamar village for about one and half months since is further

corroborated by the evidence of PW.2, who is none else than

the mother of the victim girl and the further details of the

incident elicited from the mouth of none else than the victim

girl would further strengthens the case of the prosecution and

makes evidence of PW.1, believable.

Added to this, the evidence of PW.3, who is admittedly

younger sister of PW.1, also go to show that she too has

heard from the mouth of PW.1, none other than her sister

that she was not only taken away by the accused with him

but also was spoiled by the accused. Thus, the evidence of

PW.1 which is corroborated by the evidence of PWs.2 and 3,

gives no scope for reason to disbelieve the evidence of PW.1 Crl.A. No.100157/2020

that she was subjected to repeated acts of rape and

penetrative sexual assault by none else than the accused.

36. The medical evidence for proving the alleged act

of rape, though not clear and supporting the case of the

prosecution, however, the same also does not give any scope

to disbelieve the case of the prosecution.

37. PW.8 is the Doctor who examined the victim girl

and though she has stated that her final opinion as per

Ex.P.18 was that there was no evidence of recent sexual

intercourse but the very witness herself has stated that her

final opinion was based upon FSL report which was at

Ex.P.17. A perusal of Ex.P-17 would to go show that the

scientific experts who subjected swab from vulva, swab from

vagina and one undergarment(pant), swab from glans penis

and one undergarment, opined that stains were not detected

on all those 5 items. Thus, the opinion of PW.8, the Doctor,

since is based solely upon the FSL report, it is clear that in

order to say that there is no evidence of recent sexual

intercourse , the Doctor has fully banked upon the FSL report Crl.A. No.100157/2020

and expected the presence of seminal stains are semen as a

proof for sexual intercourse. Therefore, mere absence of

seminal stains of semen in the private parts or

undergarments of the victim itself would not be a conclusive

proof to discard the evidence of the prosecution about the

alleged act of rape and sexual assault provided that the said

act of alleged rape and sexual assault can otherwise be

proved by various other evidence. Interestingly, the very

same Doctor, PW.8, in her very same evidence has also

stated further that there may be chances of non detection of

seminal stains on articles collected by her and sent to FSL

due to long gap of sexual intercourse between them, change

of dress, bathing etc. FSL report though shows the absence of

seminal stains but the same cannot be a conclusive proof to hold

that there is no act of sexual intercourse. Further, the very

same Doctor before concluding her evidence in examination-

in-chief ended by stating that the victim was used to an act

of sexual intercourse. The said submission of the doctor is

not at all denied or disputed in her cross-examination. Thus,

when PW.1 was proved to be used to an act of sexual Crl.A. No.100157/2020

intercourse and when PW.1 has stated that during her stay

with the accused in Donamar village in Maharashtra, for

nearly one and half months, the accused was subjecting her

to rape and penetrative sexual assault several times every

day, there is nothing to disbelieve or discard her evidence

and her trustworthy evidence shows that she was subjected

to rape and penetrative sexual assault by the accused.

38. In addition to the above, the evidence of PW.9,

the Doctor, who examined the accused has also given his

report that there was nothing to suggest that the accused

was incapable of performing sexual intercourse. The said

Doctor has also stated that there was no evidence of recent

sexual intercourse but he too has given the same opinion as

that of PW.8 that due to long gap of sexual intercourse and

the feasibility of the person changing the dress, washing the

dress and internal organs, the chances of non detection of

seminal stains on articles collected by him and sent to FSL,

are there. Thus, the evidence of PW.8 and PW.9, thus gives

an answer for non-detection of seminal stains on articles 1 to Crl.A. No.100157/2020

5 (M.Os.1 to 4) chemically examined by the FSL. On the

other hand, the evidence of PW.1 which inspires confidence

go to show that it was the accused and the accused alone

who had subjected her to rape and repeated penetrative

sexual assault.

39. Our Hon'ble Apex Court in Vijay @ Chinee case

(supra) wherein also the question involved was proof of

offences punishable under Section 376(2)(g) of IPC, after

referring to several of its previous judgments, was pleased to

hold in paragraph 14 of its judgment that the law that

emerges on the issues is to the effect that the statement of

the prosecutrix, if found to be worthy of credence and

reliable, requires no corroboration. The Court may convict

the accused on the sole testimony of the prosecutrix".

Similarly, same view was again reiterated by the

Hon'ble Apex Court in Phool Singh v. State of Madhya

Pradesh reported in 2021 SCC on line SC 1153 in which case,

the Hon'ble Apex Court after referring to its various previous

judgment in different case including its judgment in Vijay @

Chinee's case (supra), was pleased to observe in para 24 Crl.A. No.100157/2020

of its judgment that, applying the law laid down by the Court

in several of its previous case discussed in the judgment to

the facts of the case before the court, the Court saw no

reason to doubt the credibility and/or trustworthiness of the

prosecutrix which was found to be reliable and trustworthy.

Therefore, without any further corroboration, the conviction

of the accused relying upon the sole testimony of the

prosecutrix was held to be sustainable. In the instant case

also, as observed above, the evidence of PW.1 the victim

since has withstood the thorough and searching cross-

examination and could not be shaken in any manner and

since she has given all required details about the incident

which fulfills the ingredients of both Section 376(2)(n) of IPC

as well as the ingredients have proved the offence under

Sections 4, 6, 8 and 12 of POCSO Act, without any hesitation

it can be held that the prosecution has proved the alleged

guilt of the accused for the alleged offences beyond

reasonable doubt.

40. The defence of the accused throughout was not

specific. However, in the cross-examination of PW.2, the Crl.A. No.100157/2020

accused in the form of suggestion made to the witness, has

stated that the complainant was objecting to for parking of

the autorickshaw by CW-3 on the road in front of their house

and that the family of the complainant had not paid the auto

hiring charges to the accused for having used the

autorickshaw for about 7 to 8 times. As such, the complaint

has been lodged against the accused. PW.2 has not admitted

those suggestions as true. Except making bald suggestion,

the accused could not in any manner able to shake the

evidence of the prosecution witnesses, more particularly, the

evidence of material witnesses examined by the prosecution

including PW-1 and could not even show any doubt in the

case of the prosecution to avail the benefit of the alleged

doubt. Thus, the Special Court, though, by attributing lesser

reasons has convicted the accused for the alleged offences,

we do not find any error in the finding of the Special Court in

holding the accused guilty for the alleged offences. As such

we do not find any reasons for interfering with the judgment

of conviction passed by the Special Court against the accused

for the alleged offences.

Crl.A. No.100157/2020

41. It is the principal of sentencing policy that the

sentence ordered for a proven guilt must be neither

exorbitant nor for the namesake and it must be proportionate

to the gravity of the proven guilt.

42. In the instant case, for the proven guilt

punishable under Section 363 of IPC, the accused has been

sentenced to undergo seven years imprisonment and to pay

fine of `2,000/- and in default to pay fine, to undergo simple

imprisonment for one month. For the offence under Section

376(2)(n) of IPC and for the offence punishable under

Sections 4 and 6 of POCSO Act, the accused is sentenced to

imprisonment for life and to pay fine of `5,000/-, and in

default to pay fine, to undergo simple imprisonment for two

months. However, simultaneously, the Special Court has

also sentenced the accused for seven years imprisonment

and fine of `2,000/- and in default to pay fine, to undergo

simple imprisonment for one month for the offence

punishable under Section 8 of POCSO Act and for three years

imprisonment and fine of `1,000/- and in default Crl.A. No.100157/2020

to pay fine to undergo simple imprisonment for fifteen days

for the offence punishable under Section 12 of POCSO Act,

we are of the view that since the accused has been convicted

and ordered sentence for major offences punishable under

Sections 376(2)(n) of IPC as well for the offences punishable

under Sections 4 and 6 of POCSO Act and considering the

facts and circumstances of the case, no separate sentence be

ordered for the proven guilt punishable under Sections 8 and

12 of POCSO Act. It is only for the said limited purpose, the

impugned order on sentence alone requires interference.

43. Accordingly, we proceed to pass the following

order:

ORDER

The appeal is allowed in part. The judgment of

conviction dated 06.11.2019 passed by the learned I

Additional District and Sessions Judge and Special Judge,

Haveri in Spl.S.C.No.175/2018 though is confirmed,

however, the order on sentence dated 07.11.2019 passed by

the same Court in the same Spl.S.C.No.175/2018 is modified Crl.A. No.100157/2020

to the extent that the sentence of imprisonment and

payment of fine and default sentence for the proven guilt

punishable under Sections 8 and 12 of the Protection of

Children from Sexual Offences Act alone are set aside. The

rest of the order on sentence under challenge remains

unaltered and thus confirmed.

Registry to transmit a copy of this judgment along with

Sessions Court records to the concerned Sessions Judge

Court without delay.

The accused is entitled for a free copy of the judgment

without any delay.

In view of disposal of the main appeal, I.A.2/2021 filed

under Section 389(2) of Cr.P.C. stands disposed off as having

become infructuous.

Sd/-

JUDGE

Sd/-

JUDGE kmv