Sri. Manohar @ Pamb vs State By
2022 Latest Caselaw 9360 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JUNE, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.997 OF 2021
                        C/w.
           CRIMINAL APPEAL No.1996 OF 2019

IN CRL.A. NO.997 OF 2021:

BETWEEN:

DANIEL KUMAR @ DANIEL,
S/O. JAMES,
AGED ABOUT 26 YEARS,
R/AT NO.101, BEERAPPA BUILDING,
7TH CROSS, CHANNASANDRA,
KALKERE MAIN ROAD, KALKERE,
BENGALURU - 560 067.                       ...   APPELLANT

[BY SRI. SREENIVASA KUMAR D.G., AND
  SRI. MOHANKUMAR D., ADVOCATES]

AND:

THE STATE OF KARNATAKA
BY PULIKESHI NAGAR POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 01.                           ... RESPONDENT

[BY SRI. KRISHNA KUMAR K.K., HCGP]


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE PASSED BY THE LEARNED LIII ADDITIONAL CITY
CILVIL AND SESSIONS SPECIAL JUDGE, BENGALURU IN SPECIAL
C.C. NO.502/2016 DATED 02.11.2019, WHO HAS CONVICTED THE
APPELLANT FOR THE OFFENCSES PUNISHABLE UNDER SECTION
376 OF IPC, AND SECTION 3 READ WITH 4 OF POCSO ACT, 2012
AND SENTENCED TO RIGOROUS IMPRISONMENT OF 10 YEARS AND
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FINE OF `10,000/- IS IMPOSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 376 OF IPC AND SENTENCE OF 10 YEARS OF
RIGOROUS IMPRISONMENT AND FINE OF `10,000/- IS IMPOSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 3 R/W 4 OF
POCSO ACT AND TO ACQUIT THE APPELLANT.

                           ***

IN CRL.A. NO.1996 OF 2019:

BETWEEN:

SRI. MANOHAR @ PAMB,
S/O. LATE VENKATESH,
AGED ABOUT 23 YEARS,
R/AT NO.10, 3RD CROSS,
A.K. COLONY, NEAR BUS STOP,
DODDABANASWADI,
BENGALURU - 560 043.                          ...   APPELLANT

[BY SRI. C.H. SRINIVAS, ADVOCATE]

AND:

STATE BY
PULIKESHINAGAR POLICE STATION,
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.                     ... RESPONDENT

[BY SRI. KRISHNA KUMAR K.K., HCGP]

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED
02.11.2019/04.11.2019 PASSED IN SPL. C.C. No.502/2016 ON THE
FILE OF THE HON'BLE LIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-54) FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366-A OF IPC, PERUSE THE SAME AND SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE AND
SET THE APPELLANT/ACCUSED AT LIBERTY.

                           ***

      THESE CRIMINAL APPEALS COMING ON FOR FINAL
DISPOSAL, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

These appeals are directed against the Judgment and

Order dated 02.11.2019/04.11.2019 passed by the Court

of LIII Additional City Civil and Sessions Special Judge,

Bengaluru in Special C.C. No.502/2016.

2. Vide impugned Judgment, the learned Sessions

Judge has convicted accused No.1 for offence under

Section 376 of IPC r/w Sections 3 and 4 of the Protection of

Children from Sexual Offences Act, 2012 [hereinafter

referred to as 'POCSO Act' for short] and accused No.2 for

offence under Section 366A of IPC.

Accused No.1 has been sentenced to undergo

rigorous imprisonment for 10 years and to pay a fine of

`10,000/- for offence punishable under Section 376 of IPC,

in default, to undergo simple imprisonment for 3 years.

He has been sentenced to undergo rigorous

imprisonment for 10 years and to pay a fine of `10,000/-

for offence punishable under Sections 3 r/w 4 of the POCSO

Act, in default, to undergo imprisonment for 3 years.

Accused No.2 has been sentenced to undergo

rigorous imprisonment for 10 years and to pay a fine of

Rs.10,000/- for offence punishable under Section 366-A of

IPC, in default, to undergo imprisonment for 3 years.

3. Heard the learned counsel for appellants and

the learned High Court Government Pleader for

respondent/State and perused the evidence and material

on record.

4. Brief facts of the prosecution case are that,

accused No.1 is a friend of the victim [P.W.3]. On

05.09.2016, the victim had visited the house of her aunt in

Frazer Town on the occasion of Ganesha Festival. Accused

No.1 invited her to come to his house for celebrating his

birthday. When the victim informed him that she has no

money for autorickshaw, accused No.1 sent his friend i.e,

accused No.2 near St. Aloysius College, Frazer Town and

asked the victim to come near the said college. Accused

No.2 took the victim on a Pulsor two wheeler bearing reg.

No.KA-53/EL-3077 at about 2.30 p.m. and dropped her in

the house of accused No.1. At about 5.15 p.m., both

accused Nos.1 and 2 brought liquor. Accused No.1 sent

back accused No.2. He made the victim to drink liquor and

when she was in an intoxication condition, committed rape

on her. Thereafter at about 9.15 p.m., accused No.1

secured accused No.2 to his house and both of them

dropped the victim near her house in the motorcycle.

In order to bring home the guilt of the accused, the

prosecution got examined P.Ws.1 to 13 and got marked

Exs.P1 to 20 and M.Os.1 to 7.

The trial Court after appreciating the oral and

documentary evidence on record, convicted and sentenced

the accused for the charged offences. Hence, these

appeals.

5. P.Ws.1 and 2 are the witnesses to the spot

mahazar-Ex.P1. Both the witnesses have turned hostile.

6. P.W.3 is the victim who lodged complaint as per

Ex.P5. P.Ws.4 and 5 are the parents and P.W.6 is the

brother-in-law of the victim girl. The said witnesses have

not supported the case of prosecution and they have

turned hostile.

7. P.W.7 is the doctor, who examined the victim

and issued the report as per Ex.P9.

8. P.W.8 is the panch-witness to the seizure of

motorcycle under a mahazar-Ex.P10, but he has not

supported the case of prosecution. P.W.9 is another

panch-witness for the seizure of motorcycle. Exs.P11 to 14

are the photographs of the motorcycle.

9. P.W.10 is another doctor at St. Philomena's

Hospital. He has issued a letter to the Police as per

Ex.P17. He has sent the victim girl to the hospital for

further examination.

10. P.W.11 is the Investigation Officer. He has filed

the charge-sheet on completion of investigation.

11. P.W.12 is the PSI of Pulikeshinagara Police

Station. After the case was transferred from Viveknagara

Police Station on the point of jurisdiction, he registered a

case.

12. P.W.13 is the Police Inspector at Viveknagara

Police Station, who received the complaint Ex.P5 from the

victim on 06.09.2016 at about 7.30 a.m. on the point of

jurisdiction, he transferred the case to Pulikeshinagara

Police Station.

13. The prosecution has mainly relied on the

evidence of the victim [P.W.3], her parents and brother-in-

law namely P.Ws.4 to 6 as well as the medical evidence. In

the chief-examination, the victim has reiterated the

complaint averments stating that on 05.09.2016 she had

visited the house of her aunt on the occasion of Ganesha

Festival. When she was in the said house, at about 1.00

p.m., accused No.1 called her to come to his house to

celebrate his birthday telling that even her friend by name

Anusha is also coming to his house. She has stated that

accused No.1 informed her that accused No.2 will pickup

her and asked her to come near St. Aloysius College. As

accused No.1 insisted to accompany accused No.2, she

went along with accused No.2 on his two wheeler to the

house of accused No.1. After dropping her, accused No.2

went away. Thereafter, accused Nos.1 and 2 and another

person came to the house and they had brought drinks.

She has further stated that accused No.1 mixed rum in

wine and made her to drink. After drinking, she had

giddiness and at about 6.00 p.m., when she gained

consciousness, she was naked. When she started weeping,

accused No.1 kicked her and also burnt with a cigarette

butt on her left hand. Thereafter, accused No.1 brought

her to the bus stand in the motorcycle and left her, from

where few persons took her to her house.

14. The learned counsel appearing for accused No.1

would vehemently contend that the victim girl had given a

complete go by to the prosecution case in the cross-

examination and therefore her evidence cannot be

accepted as trustworthy. He has contended that merely on

the basis of the chief-examination, the accused cannot be

convicted since in the cross-examination the victim has

denied the incident. He has also contended that the

evidence of the victim [P.W.3] is not corroborated by any

other witnesses and therefore submits that accused No.1 is

entitled for benefit of doubt.

15. The learned counsel appearing for accused No.2

has contended that even if the evidence of victim [P.W.3]

in the chief-examination is accepted, then it cannot be said

that accused No.2 had any knowledge that by dropping her

to the house of accused No.1, he would subject her to any

sort of sexual assault. He contends that there is no

inducement on the part of accused No.2 and the

ingredients of Section 366-A of IPC are not made out and

therefore contends that the trial Court was not proper in

convicting him for the said offence.

16. The learned High Court Government Pleader has

contended that the victim in her chief-examination has

corroborated the complaint averments and she has also

admitted that she has given her statement under Section

164 of Cr.P.C. as per Ex.P4. He contends that merely

because she has turned hostile in the cross-examination,

but in the facts and circumstances of the case, wherein the

victim's evidence is corroborated by medical evidence, the

trial Court has rightly believed the prosecution case. He

therefore contends that there is no illegality committed by

the trial Court and accordingly, seeks to dismiss the

appeals.

17. It is the specific case of the prosecution that the

victim and accused No.1 were friends. On 05.09.2016, the

victim had gone to the house of her aunt in Frazer Town to

celebrate Ganesha Festival. Accused No.1 asked her to

visit his house and sent accused No.2 to pick her up.

Thereafter, accused No.2 took the victim to the house of

accused No.1 on a motorcycle. Further, both accused

Nos.1 and 2 brought liquor/drinks to the house of accused

No.1. Accused No.1 made the victim to consume liquor

and when she became unconscious, he committed rape on

her.

18. The incident has taken place on 05.09.2016

between 5.00 p.m. and 9.00 p.m. P.W.1 in her complaint

has stated that after the incident, accused Nos.1 and 2

dropped her at the bus stand near her house at about

10.15 p.m. She then narrated the entire incident to her

mother and sister and thereafter, lodged the complaint.

19. P.W.13 is the Police Inspector, who received the

complaint-Ex.P5 from P.W.3 on 06.09.2016 at 7.30 a.m.

and registered a case. Thereafter, he went to the house of

accused No.1 and prepared spot-mahazar as per Ex.P3.

The victim was sent for medical examination.

20. P.W.10 has deposed that on 06.09.2016, the

victim had come to the hospital with the history of sexual

assault. She was examined by a Lady Medical Officer and

for further examination, she was sent to Government

Hospital.

21. P.W.7 examined the victim on 06.09.2016 and

he has issued the certificate which is marked as Ex.P9.

22. P.W.11, the Investigation Officer has stated that

on 21.09.2016, he requested the learned Magistrate to

record the statement of the victim. On 24.09.2016, the

victim was produced before the Court wherein her

statement was recorded under Section 164 of Cr.P.C.

Further, he has stated that he collected the Age Certificate

of the victim from the school, which is marked as Ex.P18.

23. In her evidence, the victim [P.W.3] has stated

that when she asked accused No.1 as to who will take her

to his house, at that time accused No.1 informed her that

he will send accused No.2. Thereafter, accused No.2 came

on a two wheeler near St. Aloysius College from where she

was taken to the house of accused No.1. She has further

stated that after dropping her to the house of accused

No.1, accused No.2 went away. Thereafter, once again

accused Nos.1 and 2 came along with another person and

they had brought drinks. Once again, accused No.1 sent

accused No.2 to bring chips and thereafter accused No.2

and another person went away.

24. A careful perusal of the evidence of P.W.3 would

disclose that only after she asked accused No.1 as to who

will drop her to his house, accused No.1 told her that he

will send accused No.2. Thereafter, she went near St.

Aloysius College, from where accused No.2 picked her and

dropped her to the house of accused No.1. This evidence

of P.W.3 has to be appreciated in the light of her statement

made in the complaint that she informed accused No.1 that

she has no money for the autorickshaw to come to his

house. From the above evidence itself it cannot be said

that there was any inducement on the part of accused No.2

to take the victim to the house of accused No.1. From the

material on record, this Court cannot come to a conclusion

that accused No.2 had any knowledge that by dropping the

victim to the house of accused No.1, she would be forced

to illicit intercourse. Admittedly, when the alleged sexual

assault took place, accused No.2 was not present in the

house. The victim has specifically stated that after she was

dropped in the house of accused No.1, the said accused

No.1 sent away accused No.2 and another person. Though

it is stated in Ex.P5-complaint that after the incident, both

accused Nos.1 and 2 dropped the victim near her house,

perusal of her deposition before the Court shows that it

was accused No.1 who dropped the victim near the bus

stand on a two wheeler. The victim has not specifically

stated before the Court that even accused No.2 was also

present after the incident and she was dropped by both

accused Nos.1 and 2 near her house. Hence, it cannot be

held that prosecution has established the guilt of accused

No.2 beyond reasonable doubt for an offence punishable

under Section 366-A of IPC.

25. The learned counsel for the appellants has

contended that the evidence of the victim [P.W.3] is not

corroborated by other witnesses and that she has

completely denied the prosecution case in her cross-

examination and therefore her evidence is incomplete and

the same cannot be relied upon to convict the accused.

26. P.W.4 is the victim's father. Though he has

turned hostile, in the cross-examination conducted by the

Public Prosecutor he has admitted that on 05.09.2016, his

daughter went to the house of one Smt. Manju and her

phone was switched off and she returned at about 10.15

p.m. He has stated that his daughter was given treatment

at St. Philomena's Hospital.

27. From the cross-examination of P.W.4, it can be

gathered that on 05.09.2016 his daughter had gone to the

house of Smt. Manju and she returned about 10.15 p.m.,

which would corroborate the version of P.W.1 that she had

gone to the house of her aunt on 05.09.2016 and

thereafter, she was dropped near her house by accused

No.1 at about 10.00 p.m.

28. In the cross-examination, the victim has denied

the case of the prosecution stating that she do not know

accused Nos.1 and 2 and on 05.09.2016, she had not gone

to the house of her aunt. She has denied the entire

incident in question.

29. In the case of Rajesh Yadav and Another

Vs. State of U.P. reported in 2022 SCC OnLine SC 150,

the Hon'ble Apex Court in Para No.21 has held that:

"21. The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first

category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the Court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."

     30.       The      victim    has     supported    the    case    of

prosecution        in   her      chief-examination     conducted      on

19.12.2017. Thereafter, on 29.12.2017, when she was

again examined and in the cross-examination she has

turned hostile and resiled from her previous statement. In

the said circumstances, to arrive at a correct conclusion, it

is necessary to look into other evidence.

31. The victim was subjected to medical

examination on the very next day by P.W.7. He has stated

that the victim narrated to him about the incident and

when he examined her, he found that there was certain

injuries on her private part and hymen was not intact.

Further, nail marks were also seen on her chest and in this

regard, he has issued report as per Ex.P9. It is also

relevant to see that the victim's statement under Section

164 of Cr.P.C. was recorded as per Ex.P4 by the learned

Magistrate. When the said statement was confronted to

the victim, she has admitted that she had given such a

statement before the Court and admitted her signature. In

view of the same and having assessed the evidence and

material on record, this Court is of the considered view that

the case of the prosecution in so far as accused No.1 is

concerned cannot be doubted.

32. The prosecution has got marked Ex.P18 i.e.,

Study Certificate of the victim, wherein her date of birth is

mentioned as 27.06.2000. The defence has not seriously

disputed the age of the victim. In the cross-examination,

the victim has stated that in the year 2016, she was

studying in X Standard and then she did Diploma at St.

Joseph's College. If the date of birth of the victim

mentioned in Ex.P.18 is taken into consideration, the victim

was a minor as on the date of commission of offence.

33. From the evidence and material on record, the

prosecution has been able to establish the guilt of the

accused for the charged offence against accused No.1.

However, the evidence and material on record is not

sufficient to establish the guilt of accused No.2 beyond

reasonable doubt.

34. The trial Court has convicted accused No.1 for

the offence punishable under Section 376 of IPC as well as

under Sections 3 r/w 4 of the POCSO Act. In view of

Section 42 of the POCSO Act, sentencing the accused for

both the offence would not be proper. However, the trial

Court has ordered the sentence to run concurrently.

35. The trial Court has sentenced the accused to

undergo rigorous imprisonment for 10 years with fine and

default sentence. The learned Sessions Judge has

proceeded to pass sentence of 10 years rigorous

imprisonment observing that the punishment prescribed

for offence punishable under Section 376 of IPC and

Sections 3 r/w 4 of the POCSO Act is for a term which shall

not be less than 10 years. It is relevant to mention that

the incident took place on 05.09.2016. As on the date of

commission of the offence, minimum sentence for offence

punishable under Section 376 of IPC as well as under

Section 4 of the POCSO Act was 7 years.

36. Accused No.1 was aged about 21 years at the

time of incident. He was arrested on 14.09.2016 and since

then he is in custody. The learned counsel for accused

No.1 submits that the victim is already married.

Considering the overall facts and circumstances of the

case, the sentence imposed against accused No.1 can be

modified. Hence, the following:

ORDER

Criminal Appeal No.997/2021 filed by accused No.1 is

partly allowed.

The conviction of accused No.1 for offence

punishable under Section 376 of IPC and Sections 3 r/w 4

of the POCSO Act passed by the Court of the LII Additional

City Civil and Sessions Special Judge, Bengaluru in Special

C.C. No.502/2016 dated 02.11.2019/04.11.2019 is hereby

confirmed.

The sentence imposed is hereby modified.

Accused No.1 is sentenced to undergo rigorous

imprisonment for a period of 7 [seven] years and to pay a

fine of `10,000/- [Rupees Ten Thousand Only] for offence

punishable under Sections 3 r/w 4 of the POCSO Act and in

default of payment of fine, to further undergo

imprisonment for 3 [years] years. No separate sentence is

passed for the offence under Section 376 of IPC.

Accused No.1 is entitled for set off under Section 428

of Cr.P.C for the period of detention he has already

undergone in judicial custody.

Criminal Appeal No.1996/2019 filed by accused No.2

is allowed.

The Judgment and Order of conviction and sentence

dated 02.11.2019/04.11.2019 passed against accused No.2

for offence punishable under Section 366-A of IPC is set

aside. His bail bond stands cancelled.

Sd/-

JUDGE

Ksm*