State Of Karnataka vs Asif Rasoolsab Sanadi
2022 Latest Caselaw 5226 Kant

                               1


                                                        R
             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 23RD DAY OF MARCH 2022

                         PRESENT

       THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                              AND

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


                  CRL.A.No.100190/2017
BETWEEN:

STATE OF KARNATAKA,
REP.BY THE POLICE INSPECTOR,
KAKATI POLICE STATION, BELAGAVI,
THROUGH THE ADDL. STATE PUBLIVC PROSECUTOR,
ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                            .. APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. SPP)

AND:

ASIF RASOOLSAB SANADI,
AGE: 38 YEARS,
R/O LAXMI NAGAR, 1ST CROSS,
KAKATI, BELAGAVI.
                                            .. RESPONDENT

(BY SRI.Z.M.HATTARKI & SRI.MAHANTESH HIREMATH, ADVS.)

      THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C.SEEKING TO GRANT LEAVE TO APPEAL AND SETTING ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 03.02.2017
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE &
SPL.JUDGE (POCSO ACT,), BELAGAVI IN S.C.NO.199/2015 AND
CONVICT THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376(1), 342, 506 OF IPC AND SECTIONS 4, 8 AND 12
OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES
(POCSO) ACT, 2012.
                                 2




     THIS APPEAL HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 09.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT   THIS   DAY,   RAJENDRA     BADAMIKAR,   J.
DELIVERED THE FOLLOWING:

                          JUDGMENT

The State has filed this appeal under Section 378(1)

& (3) of Cr.P.C. challenging the judgment of acquittal

dated 03.02.2017 passed by the III Additional District

and Sessions Judge & Special Judge (POCSO Act),

Belagavi in S.C.No.199/2015.

2. For the sake of convenience, parties shall be

referred with the original ranks occupied by them before

the trial court.

3. The brief factual matrix leading to the case

are as under:

Accused is the father of the victim/complainant and

they are residing in Laxmi Nagar bearing House

No.1286/A, Belagavi. That the accused being the father

of the victim girl aged about 14 years and knowing fully

well that she is minor had committed forcible sexual

assault on her since about 9 months and also on

19.05.2015 by wrongfully confining her in the house had

forcible sexual act against the victim girl. When the

victim girl had been to the house of her maternal

grandmother, the accused went there to secure her and

at that time, the victim girl refused to go with the

accused and disclosed the fact of sexual assault by the

accused. It is further case of the prosecution that mother

of the victim girl i.e., wife of the accused is deaf and

dumb and when the sexual act of the accused was

brought to the notice of P.W.6 i.e., maternal

grandmother, she took the victim girl to the police

station and a complaint came to be lodged. On the basis

of the complaint, investigating officer has registered the

crime and the victim was subjected to medical

examination. Further, her statement under Section 164

of Cr.P.C. before the learned Magistrate was also

recorded and the accused was arrested and remanded to

judicial custody. The investigating officer has also

recorded the statement of the witnesses and collected

medical evidence as well as age proof certificate of the

victim and found that there is sufficient evidence as

against the accused and as such, he submitted the

charge sheet against the accused for the offences

punishable under Sections 376(1), 342 and 506 of IPC

and Sections 4, 8 and 12 of the Protection of Children

from Sexual Offences Act, 2012 (hereinafter referred to

as 'POCSO Act' for short).

4. After submission of the charge sheet, as there

are sufficient grounds to proceed against the accused,

the cognizance was taken and the accused was produced

from judicial custody and prosecution papers were

furnished to him. Further, the accused was represented

by counsel and after hearing both the parties, the charge

under Section 376(1), 342 and 506 of IPC r/w Sections

4, 8 and 12 of POCSO Act is framed against the accused

and the same is read over and explained to the accused.

The accused pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, the

prosecution has examined in all 11 witnesses and also

placed reliance on 13 documents as Exs.P1 to P13 and 3

material objections as M.Os.1 to 3. After conclusion of

the evidence of the prosecution, the statement of the

accused under Section 313 of Cr.P.C. is recorded to

enable him to explain the incriminating evidence

appearing against him in the case of the prosecution. The

case of the accused is of total denial. However, he

himself has got examined as D.W.1.

6. After hearing the arguments, the learned

Special Judge has observed that evidence of the victim,

P.W.6 and other witnesses including the medical

evidence is not at all trustworthy and thereby acquitted

the accused for the offences alleged against him. Being

aggrieved by this judgment of acquittal, the State has

filed this appeal.

7. We have heard the arguments advanced by

the learned Additional SPP for the State and learned

counsel for the respondent/accused. Perused the trial

court records.

8. The learned Additional SPP would contend that

the judgment and order of acquittal passed by the trial

court is contrary to law, facts and evidence on record. He

would contend that prosecution has placed sufficient

materials, but the trial court has ignored the same. He

would also submit that P.W.1-victim has clearly

supported the case of the prosecution and her evidence

is in consonance with the allegations made in the

complaint as well as statement under Section 164(5) of

Cr.P.C., but the learned Special Judge on assumptions

and presumptions has ignored the same. He would also

contend that P.W.6-maternal grandmother of the victim

and the learned Magistrate who has recorded the

statement of the victim under Section 164(5) of Cr.P.C.

have also supported the case of the prosecution and

P.W.5-Medical Officer has fully supported, but without

any proper reasons, the learned Special Judge ignored

the said evidence which has resulted in miscarriage of

justice. He would contend that there is no serious dispute

regarding age of the victim and tenure of cross-

examination if it is noticed, it is evident that after 7

months of examination-in-chief, the cross-examination of

the victim and other witnesses were made, by that time

certain admissions were taken from the mouth of the

victim regarding conduct of the accused. He would

submit that those admissions themselves are not

sufficient, as there is no specific denial in the entire

cross-examination of the victim regarding sexual assault.

He would contend that evidence of P.Ws.1, 4, 5, 6 and 8

completely support the case of the prosecution and the

evidence of P.W.5 does establish that victim was

subjected to sexual assault and the said fact was not

disputed by the accused and the accused did not give

any reason as to who had committed sexual assault on

the victim, who is his daughter. The observation of the

learned Special Judge that the victim is tutored is

erroneous and hence, he would contend that there is

sufficient evidence to convict the accused and as such,

he prayed for convicting the accused.

     9.   Per    contra,   learned      counsel   for   the

respondent/accused    would     support    the    impugned

judgment of acquittal passed by the learned Special

Judge. He would contend that P.W.1 is tutored witness

and considering the animosity between accused and

P.W.6 as admitted by P.W.1, it is evident that her

evidence is not trustworthy. He would also draw the

attention of this court that, just one day prior to

recording of statement under Section 164 Cr.P.C. by the

learned Magistrate, the victim was subjected to medical

examination and it is noticed that she was under

depression and on the next day, the statement was

recorded and it clearly establishes that she was tutored

and further, he would contend that competency of the

witness to give statement under Section 164 of Cr.P.C. is

not recorded by the learned Magistrate and no statutory

rules have been followed. Hence, he would contend that

trial court is justified in acquitting the accused and as

such, he would seek for dismissal of the appeal.

10. Having heard the arguments and perusing the

trial court records, the following points would arise for

our consideration.

i) Whether the prosecution proves the guilt of

the accused for the offence punishable

under Sections 376(1), 342 and 506 of IPC

and Sections 4, 8 and 12 of POCSO Act as

alleged beyond all reasonable doubt?

     ii)        Whether     the       judgment     and     order   of

                acquittal   passed      by   the   trial   court   is

                perverse, erroneous and arbitrary?

11. It is to be noted here that victim girl is none

other than daughter of the accused. The victim is

examined as P.W.1. It is also an admitted fact that the

mother of the victim and wife of the accused is deaf and

dumb. Further, there is no serious dispute of the fact

that victim is aged about 14 years as on the date of

lodging of the complaint. This aspect is again confirmed

from Ex.P8 which is a birth certificate issued by the

school, which discloses that her date of birth is

20.02.2001. Apart from that, the accused who got

himself examined as D.W.1 in his cross-examination has

admitted that date of birth of the victim is 20.02.2001.

The date of offence is 9 months prior to lodging of the

complaint and as on the said date, the victim was aged

about 14 years, which is not under serious dispute.

12. The victim is examined as P.W.1 who is also

the complainant in this case. In her evidence, she

deposed that, she was residing with her father/accused

in Kakati and her mother's native is Kittur. She has also

deposed that her maternal grandmother is residing in

Gandhi Nagar, Belagavi and her mother is deaf and

dumb. She has also deposed that 8 months prior to

recording her evidence, when she was staying in Kakati,

one day accused left her in the house of her maternal

grandmother and four days later, he came back for

calling and at that time, her grandmother asserted that

she will send her after two days, but the accused insisted

for sending her immediately. She has also deposed that

she has refused to go with her father, but he took her

forcibly to his house and then locked her in the house.

She has also deposed that, on the same day in the night

at 9.30 p.m. the accused brought food from a hotel and

tried to sexually assault her and when she disclosed that

she had monthly period, the accused did not commit any

sexual assault on that day. She further deposed that, on

the next day, he brought her to her grandmother's home

in Gandhi Nagar asking them to be ready on the next

day. Again on the next day, when the accused insisted

for taking the victim and his wife, the maternal

grandmother of the victim opposed and the victim has

also refused to go and when the reason was enquired by

the grandmother, the victim disclosed the fact that

accused used to commit sexual assault on her since 8-9

months. She further deposed that, her grandmother took

her to the police station wherein she lodged a complaint

as per Ex.P1. She further deposed that, subsequently she

has shown the spot to the police and she has also given

statement before the learned Magistrate as per Ex.P3

and identified her signature as Ex.P3(a).

13. It is to be noted herein that the defence

counsel did not cross-examine this witness and initially

the cross-examination was taken as nil. But this witness

was recalled after 7 months wherein she has admitted

that the accused used to take care of her and used to

advise not to move outside the house in the evening and

he was strict etc. It is also suggested that relationship

between P.W.6-grandmother and the accused was not

cordial and he used to advise not to go there and they

used to quarrel regularly and there was quarrel between

P.W.6 and the accused on the date of lodging of the

complaint also. However, P.W.1 in her examination-in-

chief at page 2 at the fag end has deposed regarding

sexual assault committed by the accused, which reads as

under:

"DUÀ £Á£ÀÄ CfÓUÉ DgÉÆævÀ£À eÉÆvÉUÉ ºÉÆÃUÀĪÀÅ¢®è CAvÁ ºÉý C¼ÀÄvÁÛ EzÉÝ. DUÀ £Á£ÀÄ CfÌUÉ DgÉÆæ vÀ£Àß ªÉÄÃ#É d§zÀ¹Û ªÀiÁr £À£Àß ºÀwÛgÀ ªÀÄ®VPÉƼÀÄîvÁÛ£É CAvÁ ºÉýzÀ¼ÀÄ. DgÉÆæ £À£Àß JzÉAiÀÄ£ÀÄß MvÀÄÛwzÛ ÀÝ, ¥ÁAiÀÄeÁªÀÄ vÉUÉAiÀÄÄwÛzÀÝ, ªÉÄÊvÀÄA¨Á ªÀÄÄvÀÄÛ PÉÆqÀÄwÛzÀÝ, D jÃw ªÀiÁqÀÄwÛzÀÝjAzÀ £À£ÀUÉ vÉÆAzÀgÉ DUÀÄwÛvÀÄÛ. DgÉÆæ D jÃw £À£ÀUÉ 8-9 wAUÀ½AzÀ ªÀiÁqÀÄwÛzÀÝ."

14. It is important to note here that though

defence counsel has cross-examined the victim and

elicited regarding strained relationship between P.W.6

and the accused and the complaint is being lodged at the

instance of P.W.6 etc., but he did not deny the sexual

assault during cross-examination of P.W.1. It is simply

suggested that allegations were as per the say of the

maternal grandmother, but he did not dispute this

assertion. However, when a suggestion was made to the

witness that accused never behaved indecently with her,

the victim has denied this aspect. Hence, it is evident

that the accused tried to won over the victim in these 7

months and there was an attempt, but the evidence

discloses that the accused did committed sexual assault

on the victim.

15. P.W.2-Sadiq Dadapeer Kazi is the spot

mahazar witness and he deposed regarding drawing of

mahazar as per Ex.P2. His evidence also discloses that

initially he was examined on 22.01.2016 and the accused

did not choose to cross-examine this witness and after 7

months, the witness was secured on 24.08.2016 for

cross wherein it is elicited that there was dispute

between P.W.6 and the accused and he signed as per the

request of the police, but there is no denial of the fact of

drawing mahzar at the instance of the victim girl.

Further, Ex.P2 discloses that at the spot, the victim was

present.

16. P.W.3-Saleem Nazeersab Fakali is a mahazar

witness for Ex.P5 regarding seizure of M.Os.1 to 3. He

was also cross-examined after 7 months, but he denied

the suggestion that he signed at the instance of the

police.

17. P.W.4-Manjula D. is V ACJ & JMFC, Belagavi

who has recorded statement under Section 164 of Cr.P.C.

of the victim. She has deposed that on 26.06.2015 she

was holding charge of IV JMFC and at that time, the

victim girl was brought to the court along with her

grandmother by the police and the victim girl was minor

and was crying. She further deposed that for 10 minutes,

she consoled the victim and victim expressed her

willingness to disclose certain facts pertaining to her

father and then victim has given her statement and she

recorded the same. Interestingly, though the evidence of

this witness recorded on 23.01.2016, the cross-

examination was held on 08.09.2016 after recalling the

witness. It discloses that, defence has developed a

tendency not to cross-examine the witnesses on the

same day and the conduct is completely against the

intention of the legislation in incorporating Section 309 of

Cr.P.C. During her cross-examination, it is elicited that

she has not disclosed the name of translator, but it is to

be noted herein that signature of the translator is

obtained as stated by the witness. The victim is resident

of Belagavi and there is no evidence to show that she

does not understand Kannada. Further, during the cross-

examination of P.W.4, there is no suggestion that this

witness does not understand Hindi. Being a Judicial

Officer, a simple suggestion is made that statement was

not recorded as per law, but what is the procedure and

law which is violated is not at all disclosed. Since it is

statement under Section 164 of Cr.P.C., administration of

oath is permissible as the statement is given by the

victim and not by an accused.

18. P.W.5-Dr.Anita Dalal deposed regarding

examining the victim girl on 25.05.2015 and her

evidence discloses that, hymen was not intact and the

victim has undergone sexual assault. In her cross-

examination, it is elicited that there was no recent sexual

assault on the victim, but the fact that the victim was

undergone sexual assault is not at all denied or disputed.

19. P.W.6-Sahajadabi Kazi, is a maternal

grandmother of the victim. She has also deposed in

terms of the statement given by the victim girl and she

deposed that victim girl has disclosed regarding sexual

assault committed by the accused on her. Hence, she

took her to the police station and got lodged the

complaint. She has also specifically deposed that her

daughter i.e., mother of the victim girl is deaf and dumb.

During the cross-examination, it is elicited that there was

a promise to the accused that she will be giving property

in case he marries the mother of the victim, as she was

deaf and dumb. It is elicited that there was quarrel in

recent days and the accused is not leaving the victim girl

in her house. She has denied the suggestion that she

insisted the victim girl to lodge the complaint and due to

personal grudge, she got lodged a false complaint.

Interestingly, during the cross-examination of P.W.1, a

suggestion was made that P.W.6 was initially insisted to

accused to transfer a house property in the name of the

mother of the victim, which she denied. But on the

contrary, during cross-examination of P.W.6, a

suggestion was made that during the marriage, there

was a promise to give property, as the accused is

marrying deaf and dumb daughter of P.W.6. But very

interestingly, the accused who got examined himself as

D.W.1 in his cross-examination admitted that he had the

knowledge at the time of marriage that his wife is deaf

and dumb and without any enticement, he voluntarily

married the daughter of P.W.6. Hence, it is evident that

accused has taken inconsistent stands.

20. The evidence of P.W.7 has no relevance, as

she has assisted the investigating officer in recording the

statement of mother of the victim girl who is deaf and

dumb. But the said witness C.W.12 was not examined

and as such, the evidence of P.W.7 has no relevance.

21. P.W.8 is the teacher of Government School at

Kakati and she has deposed that she worked in the said

school from 01.12.2014 to 29.08.2015 as incharge Head

Master and the victim had studied in their school and her

date of birth is 20.02.2001. As per the school records,

she has issued Ex.P8. Though in her cross-examination it

is elicited that the birth certificate received at the time of

entry was not produced by her, but interestingly, the

accused himself during his cross-examination admitted

the date of birth of the victim. Admittedly, Ex.P8 is

issued from a Government school and as per Section 35

of the Indian Evidence Act, 1872, entry in public record

or an electronic record made during the performance of

the duty is a relevant fact. Hence, the said entries have

presumptive value unless contrary is proved. But in the

instant case, accused himself has admitted the date of

birth of the victim and as such, it is not open for the

accused now argue regarding age of the victim.

22. P.W.9 is a doctor who deposed regarding

examining the accused and his capacity of performing

sexual activities, which is not under serious dispute.

23. P.W.10 is the Woman PSI of Kakati police

station and she deposed that, from 23.06.2014 to

16.09.2015, she was PSI of Woman Police Station,

Belagavi and on 24.05.2015 as per the instructions of

C.W.25, she has recorded the statement of the victim girl

as per Ex.P1 and also endorsed the same and her

signature is marked as Ex.P1(b).

24. P.W.11 is the Investigating Officer and he

deposed regarding investigation done by him. He further

deposed that, as per his instructions, P.W.10 has

recorded the complaint of the victim girl by getting it

typed. This witness was also subjected to lengthy cross-

examination, but nothing was elicited so as to impeach

his evidence.

25. In the instant case, the evidence of P.W.1-

victim, P.W.4-Judicial Officer who recorded the statement

under Section 164 of Cr.P.C., P.W.5-Medical Officer and

P.W.6-grandmother of the victim are relevant and their

evidence is consistent. The evidence of P.W.5 discloses

that victim did undergone sexual assault. The accused

being the father is unable to explain as to under what

circumstances the victim has undergone sexual assault

and as per the prosecution case, the accused himself has

committed sexual assault on his daughter i.e., the victim.

Apart from that, the victim girl and P.W.6-grandmother

have supported the case of the prosecution and in the

cross-examination there is no denial of sexual assault

committed as alleged. There is no reason for these two

witnesses to give false evidence.

26. Much arguments have been advanced

regarding dispute between P.W.6 and the accused and

they influencing the victim girl, but the said ground holds

no water. P.W.6 is mother-in-law of the accused and

there are no strong circumstances to show that she can

go to the extent of risking the life of her granddaughter

and daughter. Further, P.W.1-victim girl has no reason

for giving false evidence against her own father. The

statement of P.W.1 is again corroborated by the evidence

of P.W.4, who has recorded her statement of victim

under section 164(5) of Cr.P.C. The statement of victim

under Section 164 of Cr.P.C., evidence of victim and

complaint are inconsonance with each other. There is no

reason to discard this evidence.

27. P.W.1 has not stated regarding accused

threatening her or giving life threat though the same was

referred in her statement under Section 164 of Cr.P.C.

Hence, the evidence is short as regards the offence under

Section 506 of IPC is concerned. Accordingly, there is no

consistent evidence regarding the accused illegally

confining the victim girl in his house so as to attract

offence under Section 342 of IPC. However, offence

under Section 376(1)(i) is proved which was deleted

w.e.f. 21.04.2018 and it reads as under:

"376(1)(i) commits rape on a woman when she is

under sixteen years of age, or".

28. But the offence is committed in 2015 itself

and as on that date, the provision under Section

376(1)(i) was existing which is punishable with

imprisonment which shall not be less than ten years, but

which may extend to imprisonment for life.

29. Section 4 of the POCSO Act deals with

punishment for penetrative sexual assault and Section 6

of the POCSO Act deals with punishment for aggravated

penetrative sexual assault. Section 5 of the POCSO Act

defines aggravated penetrative sexual assault and as per

Section 5(l) whoever commits penetrative sexual assault

on the child more than once or repeatedly, it is defined

as aggravated penetrative sexual assault, which is

punishable under Section 6 of POCSO Act. Since Section

6 of POCSO Act is higher offence, the provisions of

Sections 4 and 12 of POCSO Act merges in Section 6 of

the POCSO Act.

30. On perusal of the judgment of the trial court,

it is evident that the trial court did not consider the

position of the child and the trauma undergone by the

child while facing sexual assault. Further, the trial being

conducted by the trial court in such a casual manner that

all the witnesses were recalled after 7 months and such

attitude is deprecated by the Hon'ble Apex Court. The

reasoning of the trial court does not inspire the

consciousness of the court and the trial court on surmises

and assumptions presumed certain things and acquitted

the accused. The trial court has failed to consider the fact

that there was no reason for the victim to give false

evidence against her own father and non-denial of sexual

assault during cross-examination of the victim. The trial

court on its own presumed certain aspects without

considering the inhuman nature of the offence regarding

father committing sexual assault/rape on his own minor

daughter that too when the mother is deaf and dumb.

There is no reason for victim girl to give false evidence

against her own father. She ought to have undergone lot

of mental agony and shock by this act of accused as she

was not able to share the same with her mother who is

deaf and dumb. It is hard to accept the contention of

accused that at the instance of her maternal

grandmother a false complaint is filed and she is giving

false evidence. Court cannot ignore trauma undergone by

tender aged child by such inhuman act. The courts

should be very sensitive in such cases, when evidence of

victim is consistent and reliable. Under such

circumstances, the entire approach of the trial court is

erroneous, perverse, capricious and from the initial stage

itself, the trial court has proceeded with biased mind

against the victim girl, which cannot be accepted.

31. Learned Additional SPP has placed reliance on

the decision of the Hon'ble Apex Court in the case of

Vinod Kumar Vs State of Punjab reported in (2015)

3 SCC 220, wherein the Hon'ble Apex Court has laid

down the guidelines for conducting criminal trial under

Section 309 of Cr.P.C. and duty of Presiding Judge as

representative of the collective/society, wherein it is

observed as under:

"A. Criminal Procedure Code, 1973 - S.309

- Criminal trial - Proper manner of conducting -

Duty of Presiding Judge as representative of the collective/society - Need for expeditious disposal so that truth is not the victim and accused do not

get time to win over witness - Adjournments granted for non-acceptable reasons - Calling of a witness for cross-examination after a long span of time, held, is anathema to concept of proper and fair trial - Agony and anguish expressed by Supreme Court in relation to - Duty of court while conducting trial, summarized and directions issued.

Directions issued, to send copies of instant judgment to Chief Justices of all High Courts for circulating the same among trial Judges with a command to follow principles relating to trial in a requisite manner and not to defer cross- examination of a witness at their pleasure or at the leisure of defence counsel - Evidence Act, 1872 - Ss.137, 138 and 165 - Public Accountability, Vigilance and Prevention of Corruption - Trial, Sentencing and Other Issues in Cases re Public Office/Corruption - Adjournment.

B. Criminal trial - Generally - Fundamental purpose of trial - What is - Held, is to arrive at truth on basis of evidence on record.

C. Criminal Trial - Witnesses - Hostile witness - Evidence of - Admissibility - Reiterated, even if a witness is characterised as a hostile witness, his evidence is not completely effaced - Said evidence remains admissible in trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable

evidence, as in present case - Evidence Act, 1872, S.154(2)."

32. In the instant case also, the evidence

recorded by the trial court discloses that all the witnesses

including the victim as well as Judicial Officer and doctor

were called for cross-examination after a long span of

time, which is required to be held as anathema to the

concept of proper and fair trial. As observed by the

Hon'ble Apex Court, the trial court ought to have been

diligent in conducting the trial especially in such matters.

But the conduct of the trial court discloses that it has

taken the things in a mechanical way, which has resulted

in miscarriage of justice.

33. Learned Additional SPP has further placed

reliance on the decision of the Hon'ble Apex Court in the

case of Phool Sigh v. State of Madhya Pradesh

reported in AIR 2022 SC 222, wherein the Hon'ble Apex

Court observed as under:

"(A) Penal Code (45 of 1860), S.376 -

Evidence Act (1 of 1872), S.118 - Rape -

Testimony of prosecutrix - Reliability - When

prosecutrix was alone at home, accused jumped wall, entered into her room and committed rape before fleeing away - Prosecutrix fully supported case of prosecution, being consistent right from very beginning - Accused unable to point out why sole testimony of prosecutrix should not be believed - No reason to doubt credibility and trustworthiness of prosecutrix - Once prosecutrix is found to be reliable and trustworthy - Without any further corroboration, conviction of accused relying upon sole testimony of prosecutrix, sustained.

(B) Penal Code (45 of 1860), Ss.375, 376 - Evidence Act (1 of 1872), S.45 - Rape - Absence of external injuries on body of prosecutrix - Consenting party - Absence of external or internal injuries on body of prosecutrix - Does not mean it may be a case of consent - No such question asked even remotely to prosecutrix - Prosecutrix cannot be said to be consenting party."

34. In the instant case also, the testimony of the

victim girl is consistent and reliable. Further, during the

cross-examination there is no denial of sexual assault.

Further, mere absence of external injuries cannot be a

ground for discarding the medical evidence, as

admittedly, just prior to lodging of the complaint there

was no sexual assault, but there was an attempt. But the

evidence of the victim discloses that when she disclosed

the fact that she had period, it was averted. The medical

evidence discloses that no sign of recent sexual assault

relates only for two days and under these circumstances,

the trial court has committed an error in ignoring the

consistent evidence of the victim, P.Ws.4, 5 and 6.

35. Learned Additional SPP has further placed

reliance on the decision of the Hon'ble Apex Court in the

case of Radha Mohan Singh Alias Lal Saheb and

Others State of U.P. reported in (2006) 2 SCC 450,

wherein it is held that, evidence of hostile witness cannot

be treated as effaced or washed off the record altogether

and it can be accepted to the extent his version is found

to be dependable on a careful scrutiny thereof. In the

instant case, victim and P.W.6 were not treated as

hostile, but during their cross-examination after 7

months to some extent, they admitted good relationship

between the victim and accused and strained relationship

between accused and P.W.6. But that itself does not

discard the entire case of the prosecution and the other

evidence supports the case of the prosecution.

36. Hence, the evidence on record clearly

establishes that accused has committed a penetrative

sexual assault on the victim girl. Section 42 of the

POCSO Act reads as under:

"42. Alternate punishment. - Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, section 509 of the Indian Penal Code (45 of 1860) or section 67B of the Information Technology Act, 2000 (21 of 2000), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree."

37. Hence, as per this Section, when the offence

under Section 376 and under the provisions of this Act

have been committed, then if the accused is found guilty,

the higher punishment under this Act or under IPC is

required to be given, when both the provisions are

incorporated.

38. In the instant case, Section 376(1) is

punishable with rigorous imprisonment for a term which

shall not be less than 10 years but which may extend to

life. Section 6 of POCSO Act prior to 2019 amendment

reads as under:

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

39. Hence, the minimum sentence prescribed

under both the Acts is 10 years with fine. Hence, this

court can impose imprisonment under Section 6 of the

POCSO Act or under Section 376(1) of IPC. The evidence

led by the prosecution clearly establish that accused did

committed an offence under Section 376(1) of IPC r/w

Section 6 of POCSO Act and he is liable to be punished.

40. The trial court committed a serious error in

acquitting the accused and under such circumstances,

the judgment of the trial court is perverse and capricious

and calls for interference by this court. Accordingly, point

No.2 is answered in the affirmative and point No.1 is

answered partly in the affirmative insofar as it relates to

offence under Section 376(1) of IPC r/w Section 6 of

POCSO Act. Accordingly, we proceed to pass the

following:

ORDER The appeal is allowed in part.

The judgment and order of acquittal dated 03.02.2017 passed by the III Additional District and Sessions Judge & Spl. Judge (POCSO Act,), Belagavi in S.C.No.199/2015 is set aside insofar as it relates to Section 376(1) of IPC r/w Section 6 of POCSO Act.

The accused is found guilty of the offence punishable under Section 376(1) of IPC r/w Section 6 of POCSO Act and accordingly, he is convicted.

The judgment of acquittal for the offence punishable under Sections 342 and 506 of IPC is confirmed.

It is necessary to hear the accused on sentence. Accordingly, the matter stands adjourned for hearing on sentence.

Sd/-

JUDGE

Sd/-

JUDGE MBS/-

ORDER ON SENTENCE

Heard the learned counsel appearing for

respondent/accused as well as Additional State Public

Prosecutor on the sentence.

2. Learned counsel for respondent/accused would

contend that respondent/accused is having number of

dependants and he is a poor autorickshaw driver and as such,

considering his status, minimum sentence may be imposed by

giving special or adequate reasons on his poverty.

3. However, learned Additional State Public

Prosecutor would contend that considering the act of

respondent/accused in committing sexual assault on his own

minor daughter, the maximum sentence prescribed under the

law may be imposed.

4. We have given our anxious consideration to the

submissions made by the learned counsels appearing for both

the parties.

5. The evidence on record clearly establishes that

accused being the father of the victim girl has committed

aggravated sexual assault by exploiting her situation that too

when his wife is deaf and dumb. The act was only to satisfy

his lust as well as inhuman. Under such circumstances, there

are no special reasons forthcoming to reduce the sentence.

Even otherwise, Section 6 of POCSO Act as well as Section

376 of IPC does not give any power to this Court to reduce

the sentence on this ground other than the prescribed by the

statute.

6. The offence under Section 376(1) of IPC is

punishable with imprisonment which shall not be less than ten

years but which may extend to imprisonment for life and shall

also be liable to fine. Accordingly, the offence under Section

6 of POCSO Act is also punishable with rigorous imprisonment

which shall not be less than ten years but which may extend

to imprisonment for life and shall also be liable to fine. As per

Section 42 and Section 42A of POCSO Act, if the accused is

convicted under the provisions of IPC as well under the

POCSO Act, the higher punishment is required to be imposed.

However, in this case, under both the provisions, minimum

sentence prescribed is rigorous imprisonment for ten years

with fine which may also extend to life. The accused has

committed aggravated sexual assault on his own daughter

while she was minor and his wife was deaf and dumb.

Further, the evidence also discloses that the sexual assault

continued for almost 8 to 9 months on the victim girl.

However, it is submitted that now the victim girl is married

and residing with her husband. Though the accused does not

deserve any leniency, considering the fact that he enjoyed the

liberty after the trial Court has acquitted him and considering

the lapse of time and settlement of victim by marriage, we

propose to impose the sentence of rigorous imprisonment for

ten years with fine of Rs.50,000/- with default clause of

simple imprisonment for three years which will serve the

purpose. Accordingly, we proceed to pass the following:

ORDER

Accused/respondent herein is convicted and sentenced

to undergo rigorous imprisonment for a period of ten years

with fine of Rs.50,000/- (Rupees Fifty Thousand Only) in

default, simple imprisonment for a period of three years for

the offence punishable under Section 376(1) read with

Section 6 of POCSO Act.

The entire fine amount shall be paid to the victim girl by

way of compensation towards her welfare.

The Trial Court is directed to secure the presence of

accused for serving the remaining part of sentence.

Accused/respondent is entitled for set off under Section

428 of Cr.P.C.

Office is directed to furnish a free copy of this judgment

to the learned counsel for respondent/accused.

Send back the Trial Court records to the Trial Court

along with a copy of the order for compliance.

Sd/-

JUDGE

Sd/-

JUDGE

Naa