Karnataka High Court

Ravi S/O Ramlu Agsar vs The State Through on 14 January, 2022

Bench: V Srishananda

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 14 TH DAY OF JANUARY, 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL APPEAL NO.200088/2016


BETWEEN

RAVI S/O RAMLU AGSAR
NOW AGED 25 YEARS, OCC:PVT.WORK
R/O BAROOR VILLAGE
TQ & DIST:BIDAR
                                         ...APPELLANT

(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)

AND

THE STATE THROUGH
MANHALLI POLICE STATION
TQ & DIST:BIDAR
                                       ...RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

   THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO ALLOW
THE APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION DATED 23-06-2016 AND ORDER OF
SENTENCE DATED 27-06-2016 OF SPL. JUDGE AND ADDL.
DIST. AND SESSIONS JUDGE, BIDAR IN SPL. CASE NO.
30/2014 AND ACQUIT THE APPELLANT HEREIN FOR THE
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CHARGES FOR WHICH HE WAS CONVICTED, IN THE
INTEREST OF JUSTICE.

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

                       JUDGMENT

Present appeal is filed against the order of conviction

passed by the Special Judge and Additional District and

Sessions Judge, Bidar in Special Case No.30/2014.

2. Brief facts of the case are as under:

A complaint came to be lodged by the victim girl -

complainant alleging that she is residing with her mother

namely, Ismail Bee in Baroor village and her father had

died about 12 years earlier to lodging of the complaint.

She has two sisters and has studied up to 8th standard in

Urdu Primary School and on account of poverty, she could

not continue her education. She is assisting her mother in

household work and her house is situated near the house

of one Ravi Agasar (accused/appellant). It is further

contended that she is acquainted with Ravi Agasar and he

had attempted to rape her and has raped her when she

had gone to attend the nature call. She has informed the

same to her mother, but, her mother did not complain to

the police nor told to anybody on account maintaining

dignity.

It is further found from the complaint averments that

about one month earlier to lodging of the complaint, again

the accused committed rape on her and same was also

intimated to her mother, but, again it was not complained

to the police. However, the incident was reported to her

relatives and thereafter, they warned the accused

regarding the incident. It is further found from the

complaint averments that when she did not get the

menstrual cycle, she had a pregnancy test with the self-

testing kit and came to know that she became pregnant

and subsequent thereto there was an abortion. Again on

07.02.2014 there was an attempt to commit rape on her

by the accused, at that juncture her mother came and

rescued her after hearing the hue and cry made by the

complainant. Immediately thereafter, the incident was

reported to her elder sister and brother-in-law and also

one Afroz and then they approached the police for action

against the accused.

3. Based on the said complaint, police registered

a case in Crime No.7/2014 for the offences punishable

under Section 4 of Protection of Children from Sexual

Offences Act, (for short, POCSO Act') and under

Section 376 of IPC. Victim statement was recorded before

the jurisdictional Magistrate under Section 164 of Cr.P.C

and thereafter accused was arrested and after thorough

investigation, police laid a charge-sheet against the

accused for the offences punishable under Sections 4 and

6 of the POCSO Act and under Section 376 of IPC. The

presence of the accused was secured and charges were

framed.

4. Accused pleaded not guilty and therefore trial

was held.

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

prosecution examined the victim, her mother, Doctor who

has examined the victim, panch witnesses and others as

PWs.1 to 22.

6. Prosecution also relied on 19 documents which

were exhibited and marked as Exs.P1 to P.19. Material

objects as many as 12 martial objects were marked as

MOs.1 to 12.

7. Thereafter, accused statement as

contemplated under Section 313 of Cr.P.C was recorded.

Accused denied all the incriminatory materials found

against him in the prosecution evidence. However, accused

did not chose to place his version on record by examining

himself or filed any written submissions on record as is

contemplated under Section 313(5) of Cr.P.C.

8. Thereafter, learned trial Judge heard the

parties in detail and passed an order of conviction

convicting the accused for the aforesaid offences and

passed the following sentence :-

Default Offence Imprisonment Fine sentence 376 of IPC Seven years `10,000/- 02 months 6 of POCSO Act Ten years `10,000/- 02 months

9. Being aggrieved by the same, accused is

before this Court in this appeal. In the appeal following

grounds have been raised :-

x The impugned Judgment of conviction and order of sentence passed by the trial court is manifestly illegal, arbitrary and against the facts and evidence on record and also against the well established principles governing the criminal law and hence deserves to be set aside

x The court below has failed to appreciate that, the prosecution case and the evidence adduced on behalf of it is riddled with bristling inconsistencies, discrepancies and contradictions. In fact, there is not even an iota of evidence, let alone prima-1acie evidence to connect the appellant with the charges leveled against him and the trial court has failed to appreciate the evidence in its right perspective and hence the Judgment of the trial court has resulted in grave miscarriage of justice.

x That, the trial court failed to observe that the FIR which is such an important document in a Criminal case was fabricated, concocted and came into an

existence after due deliberation in this particular case and above all it was not first in point of time. Thus it can be safely inferred that the very setting of law in motion in this particular case is With a malafide intent and was done after due deliberations and concoctions by roping in the accused, for the simple reason that there is an inordinate, unexplained delay of more than 03 months in lodging the First information in this particular case. This coupled with the fact that the prosecution having failed miserably to fix the time and place of occurrence as can be seen from ExP-1 and ExP-3 and the fact that prosecution has also failed to fix the identity of the accused during trial as the prosecutrix emphatically states that she doesn't know the accused, it is humbly submitted that these circumstances cast's a serious doubt on the entire Warf and Woof of the prosecution case and also raises a complete doubt on the credibility of PW-1 claiming herself to be a victim of sexual assault by the accused and hence the interference of this court is sought for.

x That, the Trial court erred miserably in believing the testimonies of 8. PW1 Hena & PW2 Ismail bee. The trial court ought to have rejected their testimonies as highly interested, artificial, unnatural, self serving and partisan as they have given a complete goby to the case set up by the

investigating agency and have invented a new case for the prosecution in their testimonies before the trial court and apart from that, they have to come to depose before the Trial court with great hostility towards the accused as they had an economic motive and they have been induced to depose against the accused in consideration of a religious motive and economic reward. Furthermore, the version put up by them before the trial court is not only contradictory but they destroy the very fabric of the prosecution case as the reasons given by them for being at the place do not appear to be true and their versions is in direct contradiction with ExP-1 Complaint. Hence it is respectfully submitted that the trial court ought to have rejected their testimonies out rightly as contradictory, in consistent, unnatural, improbable and un-trust worthy rather than believing their evidence and basing a judgment of conviction on it.

x That, the medical evidence adduced by the prosecution in this particular case destroys the very fabric of the prosecution case. The particular case destroys medical report of the victim at ExP14 emphatically discloses that there were no injuries external or internal on the victim PW1 Hena, her hymen was intact, there is no evidence of presence of spermatozoa in the vaginal smear, her uterus and ovaries were normal and the opinion of Doctor

PW12 Dr. Vaijinath Biradar is that there is no clinical evidence of sexual assault and this being the case, the trial court had no occasion to give a verdict of guilt of the accused. The trial court ought to have rejected the entire theory of the prosecution of PW1 Hena being raped by the accused twice about 2½ months prior to the registration of FIR and ought to have held that the appellant herein was fixed up in a stage managed case by PW1 Hena and her mother PW2 for ulterior motive. Hence it is respectfully submitted that the trial court ought to have acquitted him of the charges leveled against him, especially when the age of the victim was seriously challenged by the defence.

x The trial court ought to have held that the defense theory put up by the appellants herein in the trial as a reasonable, plausible and probable defense and should have given a clean chit to the accused.

x That, the trial court has proceeded on assumptions, surmises and a conjectures to base its judgment and the court below has given complete goby to the basic concept of proof beyond the reasonable doubt and this has resulted in grave miscarriage of justice.

x That, viewed from any angle, the impugned judgment and order of conviction recorded by the

Spl. Judge, Bidar in Spl.Case No.30/2014 convicting the appellant for the offences with which he was charged, is even otherwise illegal, improper and deserves to be set aside.

x Some other substantial grounds will be urged at the time of arguments.

10. Reiterating the above grounds, Sri Anilkumar

Navadagi, learned counsel for appellant vehemently

contended that the trial Court has not properly appreciated

the material on record and wrongly convicted the accused

for the aforesaid offences.

11. He pointed out that the medical evidence do

not corroborate the version of the victim girl and the

complaint averments.

12. He also pointed out that if there is an abortion

there should have been the rupture of the hymen and the

Doctor who examined the victim has clearly opined that

the hymen was intact as on the date of examination of the

victim and only tip of the finger could be inserted into the

hymen and he has also opined that the past abortion if any

cannot be found by medical examination.

13. He further argued that despite such a opinion

given by the Doctor and FSL report specifically mentioning

that there is no detect of spermatozoa in the clothes worn

by the victim, the trial court ought not to have convicted

the accused for the offence punishable under Section 4 of

POCSO Act and Section 379 of IPC and at best, the action

attributable to the accused could be one traceable under

Section 7 of the POCSO Act punishable under Section 8 of

the POCSO Act and therefore sought for allowing the

appeal.

14. Per contra, learned High Court Government

Pleader supports the impugned judgment. He points out

that the sexual assault and penetrative sexual assault is

defined in Section 4 of the POCSO Act and the ingredients

in the form of oral testimony of the victim girl clearly

establishes that on two occasions accused has committed

penetrative sexual assault on the victim resulting in the

victim girl becoming pregnant and later on aborted which

clearly establishes the guilt of the accused beyond all

reasonable doubt and sought for dismissal of the appeal.

15. He further contended that just because the

medical evidence is not supporting the case of prosecution,

the victim statement cannot be brushed aside in toto and

sought for dismissal of the appeal.

16. In view of the rival contentions, following

points would arise for consideration :-

1. Whether the prosecution has established the offences punishable under Section 6 of the POCSO Act and Section 376 of IPC beyond all reasonable doubt ?

2. Whether the impugned judgment is suffering from legal infirmities or perverse and thus calls for interference ?

3. If so, what is the appropriate sentence ?

17. In the case on hand, the victim and accused

are known to each other. There is no dispute that the

accused is residing in the vicinity of the victim's house.

18. According to the complaint averments, victim

had developed intimacy with the accused and they were in

taking terms and she is a high school dropout.

19. It is found from the compliant averments that

on two occasions earlier to 07.02.2014 the accused had

committed forcible sexual intercourse with the victim girl

which resulted in victim girl becoming the pregnant. The

contents of the complaint are reiterated by the victim girl

as well as the mother before the court. When the third

attempt was made on 07.12.2014, the victim and her

mother have reported the incident to her victim's elder

sister and brother-in-law and one of the acquaintance with

Afroz and then to the police.

20. It is pertinent to note that neither in the

complaint nor in the evidence of the victim there is no

mention as to the dates of earlier forcible sexual

intercourse which the accused said to have had with the

victim. Further, when exactly she got tested for the

pregnancy and what medicine she took for abortion is not

forthcoming on record. Further, there is no external

injuries found on the body of the victim girl to establish

forcible sexual intercourse.

21. These aspects of the matter are not properly

appreciated by the learned trial Judge.

22. Victim's statement recorded under Section 164

of Cr.P.C and the statement given by her before the court

is also not tallying with the contents of the complaint.

23. Further, Doctor who is examined the victim girl

in the case on hand is examined as PW.12. He has issued

the medical certificate Ex.P.10. in Ex.P.10 it has been

specifically mentioned that the hymen is intact.

24. Further, for the question No.12 in Ex.P.10, he

has opined that "on clinical examination pre-abdomen of

pre-vaginal examination, and also after obtaining the

pelvic scan, he is of the definite opinion that the victim is

not pregnant and in the past if she has become pregnant

and she got aborted could not be assessed". He is also

opined that in the medical evidence there cannot not be a

correct report regarding the past abortion, if any.

25. When the hymen is intact, it is highly

improbable that the victim had become the pregnant and

she had an abortion. Moreover, since date of the earlier

forcible sexual intercourse is having not been mentioned.

There are many missing links in the case inasmuch as

when exactly she missed her menstrual cycle; when she

became the pregnant; non production of test kit of the

pregnancy; when exactly she got aborted and whether the

abortion took place in the house or she was hospitalized

are all not forthcoming on record.

26. Further even the FSL report marked at Ex.P.9

shows that seminal stains were not detected in the clothes

and skin tissues were not detected in item No.7 and 10

which is the nail clippings of the victim and the accused.

27. Under these circumstances, based on the

testimony of the victim alone, cannot be made as a ground

to uphold the conviction of the accused for the offence

punishable under Section 6 of the POCSO Act and

Section 376 of IPC.

28. Further, in order to hold that accused is guilty

of the penetrative sexual assault, prosecution is required

to prove that accused has penetrated his penis to any

extent into the vagina, mouth, urethra or anus of a child or

makes the child to do so with him or any other person. The

accused must have inserted to any extent to any object on

the part of body.

29. The material evidence on record shows in the

form of oral testimony of the victim coupled with the

medical evidence this court is of the considered opinion

that the prosecution is not able to prove that the accused

has penetrated into the vagina of the victim girl to any

extent and therefore, to attract offence punishable under

Section 4 of the POCSO Act coupled with the under Section

376 of IPC is not made out. Accordingly, to that extent the

finding recorded by the learned trial Judge needs

interference.

30. Having said thus, the action attributable to the

accused can be very well be traced to the offence

punishable under Section 8 of the POCSO Act for the

offence said to have committed offence under Section 7 of

the PCOSO Act inasmuch as in the absence of proof of

penetration, the evidence adduced by the victim girl could

be termed as sexual assault as is defined under Section 7

of the POCSO Act. In order to appreciate the same, it is

necessary for this court to extract Section 7 of the POCSO

Act which reads as under :-

"7. 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.

31. The oral testimony of the victim girl coupled

with the medical evidence on record this court is of the

considered opinion that the action of the accused could be

punished under Section 8 of the POCSO Act. Accordingly,

point Nos.1 and 2 are answered.

Regarding point No.2:-

32. This court having scaled down the offence

alleged against the accused from Section 4 of the POCSO

Act and Section 376 of IPC to the offence punishable under

Section 8 of the POCSO Act for the offence committed

under Section 7 of the Act, the sentence also needs to be

modified.