Saddamhusain S/O Abdulrahiman ... vs The State Of Karnataka
2022 Latest Caselaw 779 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 18TH DAY OF JANUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200100/2015


BETWEEN:

Saddamhusain S/o Abdulrahiman Jahagirdar,
Age : 20 years, Occ : Driver,
R/o Gandhi Nagar, Dist : Vijapaur.
                                                ... Appellant

(By Sri Shivanand V.Pattanshetti, Advocate)


AND:

The State of Karnataka
R/by Addl. SPP,
High Court of Karnataka,
Kalaburagi Bench.
(Through AMPMC P.S., Dist :Vijayapur)
                                              ... Respondent

(By Sri Gururaj V.GHasilkar, HCGP)


      This Criminal appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment of conviction and
order of sentence dated 04.09.2015 and 09.09.2015
respectively passed by the Special Judge and II Addl.
Session Judge, Vijayapur in Spl.Case No.21/2014 and
acquit the appellant/accused No.1.
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      This appeal coming on for Final Hearing this day, the
Court delivered the following:

                         JUDGMENT

Heard Sri Shivanand V.Pattanashetti, learned counsel

for the appellant and learned High Court Government

Pleader for respondent/State.

2. Present appeal is filed by the accused

No.4/appellant who has been convicted in Special Case

No.21/2014 on the file of II Addl. Sessions Judge,

Vijayapur which has imposed the following sentences :-

Default Offence Punishment Fine sentence 366 of IPC 10 years `10,000/- Six months

376(2)(i) of IPC r/w 10 years `10,000/- Six months Sec.3(a) of POCSO Act, 2012 punishable U/s.4 POCSO Act,

3. Brief facts of the case are as under :-

A complaint came to be lodged on 25.04.2014 by

one Sri Gangaram contending that he is residing at Gandhi

Nagar in Vijayapur and he has four daughters. Among

them victim girl was studying SSLC and when she was

going to the school, accused by name Saddam used to

tease her and he had warned him in this regard. Despite

the same, the accused continued teasing the victim girl.

On 24.04.2014 at about 10.00 a.m. accused Saddam along

with his friends Gouse and Raghu came in a Tata Ace

vehicle near his house and eloped the victim girl which was

informed to him by his another daughter and the wife.

Thereafter, they searched for victim girl; but she was not

found. However, he received a telephone call from Raghu

at about 8.00 p.m. and told that they are bringing the

victim girl and Saddam is also is in their company and

therefore he sought for action against the accused.

4. Police initially registered the case against the

accused for the offences punishable under Section 366A

read with Section 34 of Indian Penal Code (for short, 'IPC')

and after thorough investigation laid the charge-sheet

against the appellant and two others for the offences

punishable under Section 366 of IPC and Sections 3 and 4

of Protection of Children from Sexual Offences Act (for

short, POCSO Act') and Sections 3(1)(xi) and 3(2)(v) of

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act and under Section 376(2)(i) read with

Section 34 of IPC.

5. After receipt of the charge-sheet, Special Court

took cognizance of the aforesaid offences and presence of

the accused was secured. Charge was framed against the

accused persons. Accused persons pleaded not guilty and

therefore trial was held.

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

in all 14 witnesses were examined as PWs.1 to 14

comprising of complainant-Gangaram, victim girl, wife of

the complainant, another daughter of the complainant,

Doctor and investigation agency. Prosecution relied on 25

documentary evidences which were exhibited and marked

as Exs.P.1 to P.25.

7. It is pertinent to note that the victim girl did

not support the case of the prosecution to any extent.

However, she supported the case of the prosecution only

with regard to participating in panchanama proceedings.

8. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313 of

Cr.P.C., came to be recorded, wherein the accused persons

have denied all the incriminatory circumstances found

against them. However, the accused persons did not offer

any explanation to the incriminatory circumstances by

examining themselves or placing their version on record by

filing necessary written submission as is contemplated

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

9. Learned Special Judge after hearing the parties

in detail passed an order of conviction against the accused

No.1 (appellant) and acquitted accused Nos.2 and 3 and

passed the sentence as referred to supra. State has not

preferred any appeal against the order of acquittal of

accused Nos.2 and 3.

10. Being aggrieved by the same, the accused

No.1/appellant is before this court in this appeal.

11. In the appeal, following grounds have been

raised :-

x That, the judgment of conviction and order of sentence passed by the learned Judge is contrary to the facts of the case, evidence on record & against the settled principles of law.

x That, the Learned Sessions Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner.

x That, PW-3/CW-7 is the victim girl completely hostile to the prosecution case and even in the statement recorded U/s 164 of Cr.P.C. she completely given clean chit to the appellant. So, convicting the appellant only on the base of here say and highly interested witnesses is bad in law.

x That, prosecution utterly failed to prove the age of the victim girl according to the well established principles of law, even then court below convicted appellant without properly appreciating the well establishing principles of law is bad in law.

x That, looking into the evidence on record absolutely there is no material to connect the guilt U/s 366 of IPC and 376 (2) (1) of IPC R/w Sec.3 (a) of POCSO Act 2012 and punishable U/s 4 of POCSO Act 2012.

x That, looking into the medical evidence absolutely no material to connect the commission of rape and moreover FSL report is in negative, even then court below convicted the appellant without appreciating the evidence on record in proper manner is bad in law.

x That, looking into the evidence of PW-8/CW-14, PW- 9/CW-15 and PW-10/CW-16 absolutely no material to connect the commission of offence U/s 366 of IPC.

x That, looking into the evidence of PW-6/CW-8, PW- 7/CW-9 and their conduct in filing the complaint soon after the incident creates a doubt about the veracity of the prosecution case.

x That, prosecution failed to give any explanation regard the non examinations of material witnesses.

x That, trial court failed to follow the basic principles of It is settled law regarding the proving of prosecution case. law that, the prosecution must prove their case independently without depending upon the weakness or lacuna on the part of the defence.

x That, trial court ought to have come to conclusion that I.O. as conducted the tainted investigation.

x That, without admitting the prosecution case, the order of sentence imposed on the appellant is too higher side and exorbitant.

x That, court below not properly put the incriminating circumstances to the appellant while recording 313 statements.

x That, court below ought to have given a benefit of doubt to the appellant.

x That, it is respectfully submitted that, the learned Special Judge has not at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal

and incorrect. The same has resulted in miscarriage of justice to the appellant.

12. Reiterating the above grounds, Sri Shivanand

V.Pattanshetti learned counsel appearing for the appellant

contended that the material evidence on record is not

properly appreciated by the learned Special Judge while

passing the impugned judgment of conviction and order of

sentence and sought for allowing the appeal. He pointed

out that in order to constitute an offence punishable under

Sections 3 and 4 of the POCSO Act, the statement of the

victim is very much necessary that accused forcibly

penetrated into her private parts which is a sine qua non

to record an order of conviction and in the absence of any

such statement made by the victim girl, the learned

Special Judge, based on the evidence of the parents of the

victim girl and oral testimony of the sister of the victim girl

ought not to have convicted the accused and sought for

allowing the appeal.

13. Alternatively, Sri Shivanand V.Pattanshetti,

contended that even if the version of the parents and

sister of the victim girl is to be believed, then the offence

alleged against the accused should be acquitted for the

offences punishable Sections 3 and 4 of the POCSO Act

and conviction under Section 366 of IPC is to be

maintained and period undergone by the accused be

treated as period of imprisonment and sought for allowing

the appeal to that extent.

14. Per contra, learned High Court Government

Pleader supports the impugned judgment. He further

contended that there is no dispute that victim girl is a

minor. He pointed out that the material evidence on record

clearly indicate that the accused persons including the

appellant had kidnapped the victim girl from the house in

MO.1-Tata Ace vehicle and later on the victim girl alone

came to the house and explained what happened to her to

her parents and therefore, the oral evidence of the parents

of the victim girl assumes importance and is a relevant

under Section 6 of the Indian Evidence Act and thus

sought for dismissal of the appeal.

15. He also points out that medical evidence

though not conclusive in the case on hand to show that

there was a forcible intercourse between the accused No.1

and the victim girl and the medical certificate issued by the

Doctor who is examined as PW.11.

16. She has stated that she has issued medical

certificate vide Ex.P.22 whereunder she has mentioned the

history stating that victim girl had consensual sexual

intercourse with the appellant on 24.04.2014. Since victim

girl is minor her consent is not a consent in the eye of law.

Therefore, he sought for dismissal of appeal.

17. In view of the rival contentions following points

would arise for consideration :-

i. Whether the prosecution has established the offences alleged against the accused No.1/appellant beyond all reasonable doubt?

ii. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference ?

iii. If so, what order ?

18. In the case on hand, there is no dispute that

the victim girl is the daughter of the complainant and

PW.6. PW.7 is the sister of the victim girl. PW.3 is the

victim girl. PW.11 is the Doctor who issued medical

certificate as per Exs.P.23 and P.24. PWs.12 to 14 are the

Investigation Officers. PWs.2 and 4 who are the panch

witnesses. PWs.8 and 9 are the independent witnesses

who have turned hostile to the case of the prosecution.

19. In the matter of this nature to establish

forcible sexual intercourse, the oral testimony of the victim

girl assumes a great importance for recording an order of

conviction inasmuch it is the victim girl who has to depose

before the court about the forcible sexual intercourse in

order to attract the offence punishable under Section 376

of IPC and Sections 3 and 4 of the POCSO Act. It is settled

principle of law that to constitute the above offences,

victim's statement on oath that male organ has been

penetrated into the female organ, which is a sine qua non.

20. In the light of the above legal requirement,

this court perused the oral testimony of PW.3-victim girl.

She deposed before the court stating that she is

acquainted with the accused Nos.1 and 2 but she does not

know their caste but she belongs to harijan community.

She also deposed that accused Nos.1 and 2 are not

knowing about her caste. She deposed that nobody has

kidnapped her from her house and she does not know who

has lodged a complaint. She states that she has studied

upto SSLC in Kannada medium and she knows reading and

writing in Kannada but she signs in English. She identified

the signature that was shown to her. The said addressed

to PSI, APMC Police Station. She identified her signature in

the said letter, wherein she has stated that

appellant/accused had forcible sexual intercourse with her

in a room at Guledagudda.

21. However, in the very next breath she has

stated that the contents of the letter was made to be

written by her under coercion from her parents and police.

Therefore, she has written the same as per their dictation.

22. She has also given a statement before the

learned Magistrate under Section 164 of Cr.P.C., wherein

also she has deposed as per her parents say.

23. Since she did not support the case of the

prosecution she has been treated as hostile witness by the

prosecution, wherein the contents of complaint, contents

of Ex.P.4 and contents of the statement recorded before

the learned Magistrate were confronted and suggested that

she has voluntarily written the contents of Ex.P.4 and

voluntarily deposed before the learned Magistrate about

the overt acts committed by the accused persons including

the overt acts committed by the appellant. But witness

denied the same.

24. Father, mother and sister of the victim girl

have supported the case of the prosecution. It is to be

noted that what has been told by victim girl is reiterated

by mother of the victim girl and that was informed to the

father of the victim girl which resulted in filing of the

complaint. So far as the sister of the victim girl is

concerned she has deposed that the appellant taking the

victim girl in a Tata Ace vehicle on the day of incident.

25. The deposition of Doctor, mahazar witnesses

and Investigation Agency do lend support to the case of

prosecution.

26. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellant.

This court carefully perused the material on record.

Learned counsel Sri Shivanand V.Pattanashetti also

pointed out that the accused No.1/appellant has married

the victim girl and they are now living happy married life

and having a child.

27. This court carefully perused the material on

record in the light of the contentions urged on behalf of the

accused No.1/appellant.

28. It is a settle principle of law and requires no

emphasis that in order to prove the offence punishable

under Sections 3 and 4 of the POCSO Act or for that

matter forcible sexual intercourse punishable under

Section 376 of IPC, the victim girl has to depose before the

court that there was a forcible sexual intercourse

committed by a accused No.1/appellant on her. In the

absence of such evidence before the court by the victim

girl, the court cannot convict the accused for the offence

punishable under Sections 3 and 4 of the POCSO Act and

under Section 376 of IPC.

29. In the case on hand, since the victim girl who

is examined as PW.3 has turned completely hostile to the

case of the prosecution. Based on the contents of Ex.P.4

and the statement given by the victim girl before the

learned Magistrate under Section 164 of Cr.P.C would not

be sufficient enough to record an order of conviction of the

accused/appellant for the offence punishable under

Sections 3 and 4 of the POCSO Act and Section 376 of IPC.

30. However, the material evidence on record

especially the wound certificate wherein the Doctor at an

undisputed point of time recorded that victim girl has

stated that she had a love affair with accused No.1 and she

had a consensual sex earlier to the date of incident, cannot

be lost sight of.

31. Perhaps, a love affair now ended in marriage

must have made the victim girl to turn hostile to the case

of the prosecution. Be it what it may. The fact remains that

the accused had taken away the victim girl from the

custody of her parents on 24.04.2014 and then took her to

Guledagudda in MO.1-Tata Ace vehicle bearing Reg.No.KA-

28/B-3797. The aspect of the matter has been proved by

the oral testimony of the parents and sister of the victim

girl. Though victim girl has stated that nobody has forcibly

taken her, fact remains that accused Nos.1 to 3 had took

her in the Tata Ace vehicle. The fact that victim girl is a

minor as on the date of accident, in the absence of proof of

forcible sexual intercourse, accused cannot be convicted

under the provisions of the POCSO Act.

32. But, material evidence on record would

indicate that the victim girl was company with the

appellant alone at Guledagudda in a room. Thereafter, all

the accused persons and the victim girl returned to the

native village of the victim girl and the victim girl safely

came back home.

33. Hence, in the absence of material evidence on

record to attract the offence under the provisions of

POCSO Act is not made out. These aspects of the matter is

last sight of by the learned Special Judge while passing the

impugned judgment. In absence of cogent and convincing

evidence on record about the forcible sexual intercourse,

this court is of the considered opinion that the appellant be

convicted for the offence punishable under Section 8 of the

POCSO Act and the period of custody undergone by the

accused/appellant be treated as period of imprisonment.

However, since the accused persons taken away the victim

girl from the custody of her parents, conviction of

appellant is to be maintained for the for the offence

punishable under Section 366 of IPC and custody period

already undergone by the accused/appellant and fine

imposed by the court if maintained, the ends of justice

would be met. Accordingly, point Nos.1 and 2 are

answered partly in affirmative.

Regarding point No.3 :-

34. In view of answering point Nos.1 and 2 partly

in the affirmative, conviction order needs to be modified

and sentence also needs modification. In modification of

the conviction order and sentence passed by the learned

Special Judge, pass the following :-

ORDER

Appeal is allowed in part.

Accused No.1/appellant is convicted for the offence

punishable under Section 366 of IPC and custody period

already undergone by him is treated as the period of

imprisonment and is ordered to pay a fine of `10,000/-

Time is granted to the accused to pay the fine

amount till 15.02.2022.

Accordingly, accused is on bail and his bail bonds

discharged.

Office is directed to return the trial Court records

with a copy of this judgment forthwith.

Sd/-

JUDGE

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