Channabasappa S/O Ningappa ... vs The State Of Karnataka
2022 Latest Caselaw 5785 Kant

                               1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 31st 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.100205/2017
BETWEEN:

CHANNABASAPPA S/O NINGAPPA KUMMUR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O KURDAKODIHALLI, TQ.BYADAGI, DIST: HAVERI.
                                                .. APPELLANT
(BY SRI.K.M.SHIRALLI, ADV.)

AND:

THE STATE OF KARNATAKA,
BY BYADAGI P.S.,
R/BY S.P.P. HIGH COURT OF KARNATAKA BENCH,
DHARWAD.
                                             .. RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.SPP)

      THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 21.02.2017 AND 22.02.2017 PASSED IN
SPL.S.C.NO.17/2014 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376(2)(i) OF IPC AND SECTION 4 AND 12 OF POCSO
ACT, 2012 BY THE PRINCIPAL DISTRICT SESSIONS AND SPECIAL
JUDGE, HAVERI AND ACQUIT THE APPELLANT/ACCUSED OF THE
OFFENCES WITH WHICH HE HAS BEEN CONVICTED AND
SENTENCED.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT   THIS   DAY,   RAJENDRA     BADAMIKAR,   J.
DELIVERED THE FOLLOWING:
                             2




                       JUDGMENT

Appellant/accused has filed this appeal under

Section 374(2) of Cr.P.C. assailing the judgment of

conviction and order of sentence passed by the Principal

District and Sessions Judge and Special Judge, Haveri in

Spl.S.C.No.17/2014 whereby the learned Special judge

has convicted the appellant/accused for the offence

punishable under Section 376(2)(f) of IPC and Section 4

of Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as 'the POCSO Act' for short) by

imposing imprisonment for life with fine of Rs.25,000/-

with default clause and for the offence punishable under

Section 12 of POCSO Act, he was imposed rigorous

imprisonment for 2 years with fine of Rs.5,000/- with

default clause.

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:

That the victim girl is daughter of the complainant-

Manjavva and the victim is aged about 5 years and

attending anganawadi at Kurdakodihalli village of

Byadagi taluk. That the accused is relative of the

complainant and is also residing in the same village. It is

further case of the prosecution that complainant and her

husband used to go to work every day for coolie or

agriculture work and at that time, they used to leave

their daughter i.e., victim girl in the parental house of

the complainant which is situated in the same village.

The house of the accused is also situated in the same

vicinity of the parental house of the complainant. It is

further case of the prosecution that on 27.07.2014, at

10.00 a.m. the complainant left her daughter in her

parental house and went to the land for agricultural

work. At about 3.00 p.m. the accused came near the said

house belonging to the father of the complainant and

took the victim girl inside the house. It is further alleged

that, he made her to lay on the floor, removed her panty

and removed his innerwear and then fell on her in an

attempt to penetrate her vagina. It is also alleged that he

has also bite on her chin and forehead having knowledge

that she was a minor. When the victim girl cried, her

grandfather rushed inside the house and on seeing him,

the accused ran away from the spot by pushing the

grandfather. When the complainant returned in the

evening she got information about all these aspects and

the victim was complaining of pain in her vagina and

other parts of the body. As there was no vehicle facility,

they stayed in the village on that night and on the next

day morning they went to Byadagi and reported the

matter to doctor who in turn reported to concerned

police. Then victim girl was sent to District Hospital,

Haveri and a complaint was also lodged. On the basis of

the complaint, the crime came to be registered and the

accused was arrested on 29.07.2014 and was also

subjected to medical examination. The investigating

officer has recorded the statement of the witnesses and

found that there is material evidence as against the

accused for having committed penetrative sexual assault

on the victim girl and as such, submitted the charge

sheet against the accused for the offence punishable

under Sections 376(2)(f) of IPC and Sections 4 and 12 of

POCSO Act. After submission of the charge sheet, as

there is sufficient material against the accused,

cognizance of the said offence was taken. The learned

Special Judge has also secured the accused and accused

was represented by defence counsel. The prosecution

papers were also furnished to the accused.

4. Then, Special Judge has framed charge under

Section 376(2) of IPC and Sections 4 and 12 of POCSO

Act and the same was read over and explained to the

accused. The accused pleaded not guilty and claimed to

be tried.

5. The prosecution in order to prove the guilt of

the accused has examined in all 18 witnesses and has

also placed reliance on 24 documents and 6 material

objects.

6. After conclusion of the evidence of the

prosecution, the statement of the accused under Section

313 of Cr.P.C. was recorded to enable him to explain the

incriminating evidence appearing against him in the case

of the prosecution. The case of accused is of total denial

and he did not choose to lead any oral and documentary

evidence in support of his defence.

7. After having heard the arguments, the learned

Special Judge found that prosecution has proved the guilt

of the accused for the offence punishable under Section

376(2)(f) of IPC and under Sections 4 and 12 of POCSO

Act and accordingly convicted the accused.

8. Being aggrieved by this judgment of

conviction, the accused has filed this appeal.

9. We have heard the learned counsel appearing

for the appellant and learned Additional SPP. We have

also perused the records of the trial court.

10. Learned counsel for the appellant would

contend that judgment of conviction and order of

sentence is contrary to law and evidence on record. He

would contend that learned Special Judge has committed

grave error in convicting the accused on the interested

testimony of the prosecution witnesses which are

contradictory, unreliable and artificial. He would also

contend that, trial court has not properly appreciated the

evidence of the victim and it reveals that she is tutored

witness. He would also contend that trial court has not

properly assessed and scrutinized the medical evidence.

He would also contend that the evidence on record

disclose that prosecution has not established the guilt of

the accused for the offence punishable under Section

376(2)(f) of IPC and Sections 4 and 12 of POCSO Act.

Alternatively, learned counsel for the appellant would

also contend that considering the age of the victim, some

remission may be granted to him.

11. Per contra, learned Additional SPP would

contend that victim is aged about 5 years and accused

being her relative exploited the situation of the minor girl

and committed penetrative sexual assault on the victim.

He would contend that victim has given statement under

Section 164 of Cr.P.C. and further her evidence recorded

before the court is supported by the evidence of eye-

witness P.W.5 as well as the medical evidence, which is

sufficient to prove the guilt of the accused. He would

contend that considering the inhuman act on the part of

the accused, the Special Judge has imposed life

imprisonment with fine which is ordered to be paid to the

victim girl and considering the facts and circumstances,

the judgment of conviction and order of sentence does

not suffer from any perversity or infirmity so as to call for

any interference by this court. As such, he prayed for

dismissal of the appeal.

12. Having heard the arguments and perusing the

records, now the following points would arise for our

consideration:

i) Whether the prosecution has proved beyond

all reasonable doubt that on 27.07.2014 at

3.00 p.m. in the house of Honnappa

K.Hotteppanavar situated in Kurdakodihalli

village of Byadagi taluk, accused having

knowledge that victim is a minor aged about 5

years committed rape and penetrative sexual

assault on her and thereby committed the

offences as alleged?

ii) Whether the judgment of conviction and order

of sentence passed by the trial court is

perverse, capricious and suffers from infirmity

so as to call for any interference by this court?

13. It is the specific case of the prosecution that

accused has committed penetrative sexual assault on the

victim girl in the house of her grandfather and accused is

relative of the victim. The complainant is mother of the

victim and P.W.2-Praksh N.Kodabal and P.W.3-Basavaraj

M.Kajjari are the spot mahazar witness while P.Ws.4 and

5 are the recovery mahazar witnesses. P.W.5-Honnappa

K.Hotteppanavar is the father of the complainant and he

is an eye-witness. P.W.6-Ningappa D.Medleri is the

relative of the complainant, while P.W.7 is the victim girl.

P.W.8-Bharamappa P.Kajjari is father of the victim and

husband of the complainant, while P.W.9-Yallavva is the

mother of the complainant and wife of P.W.5 being the

grandmother of the victim. P.W.11-Dr.Netravathi is the

Medical Officer who had examined the victim and P.W.13

is the Anganawadi worker who has given certificate

Ex.P13 regarding date of birth of the victim. P.W.15-

Dr.Chandrakant Mannapur has deposed regarding

examining the accused and P.W.18 is the Magistrate who

has recorded the statement of the victim under Section

164 of Cr.P.C. as per Ex.P24. P.Ws.16 and 17 are the

investigating officers.

14. In the instant case, it is the specific assertion

of the prosecution that accused has committed

penetrative sexual assault on the victim girl who is aged

about 5 years. Though certain cross-examination is made

regarding age of the victim girl, however, it is undisputed

fact that victim is a child aged about 5 years and the

evidence of P.W.13 in this regard is not seriously

challenged as well as Ex.P13, which establishes that

victim was aged about 5 years as on the date of the

incident and the said certificate is also not challenged.

Apart from that, the evidence also discloses that victim

used to refer the accused as uncle. Under Section 35 of

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

an electronic record made during the performance of the

official duty is a relevant and hence, there is no serious

dispute regarding Ex.P13 and age of victim.

15. The prosecution has alleged that accused has

committed penetrative sexual assault on the victim. The

complainant-mother is examined as P.W.1 and eye-

witness her grandfather is examined as P.W.5 and the

victim is examined as P.W.7. The Medical Officer who has

examined the victim girl is examined as P.W.11 and

these are the material witnesses in the instant case.

16. P.W.1 deposed that on 27.07.2014 she and

her husband left the victim girl in the house of her father

i.e., P.W.5 and evening they came back to their house

and had dinner and then came to the house of her

parents i.e., P.W.5 around 8.30 p.m. and noticed that

victim was sleeping inside and was in dull mood. On

enquiry, the victim has revealed that, in the afternoon

there was penetrative sexual assault on her and the

same is again confirmed by her father. P.W.1 has also

deposed that she examined the victim and noticed

swelling in the vagina portion and it was reddish and the

victim was complaining pain. According to the

complainant, the victim has disclosed that accused made

her lie on the ground and removed her clothes and after

he removing his clothes bite her chin, forehead and then

committed penetrative sexual assault. She further

deposed that, as it was night, they were not able to go to

Byadagi for treatment and on the next day morning they

went to Byadagi Hospital and the matter was reported to

the doctor who has registered MLC and further

proceedings have taken place. This witness was cross-

examined by defence counsel, but her evidence was not

all impeached except formal denial. She has specifically

asserted even in the cross-examination that there was

swelling in the vagina portion of the victim girl and she

was complaining pain. A suggestion was made that victim

was having some etching problem, which she denied. The

evidence of this witness is consistent and nothing worthy

is elicited.

17. P.W.5-Honnappa is grandfather of the victim

and father of the complainant. In his evidence, he has

also deposed that victim was left in his house by

complainant and she was alone in the house with him

and at that time victim stated that she will have food and

this witness asked her to take food. He further deposed

that, meanwhile accused came there and under the guise

of taking water he went inside the house and after some

time, he heard the noise of crying of his granddaughter.

When he rushed inside the house, he found accused lying

on victim and seeing him, the accused ran away by

pushing him. He has also deposed regarding he giving

statement before the police in this regard. His cross-

examination reveals that accused was acquainted with

this witness being a distant relative. In his cross-

examination he deposed that he and victim were alone in

the house when the incident had occurred and accused

committed the offence. He further deposed that, when

his son-in-law and complainant arrived at 8.30 p.m., he

brought it to their notice. He has also specifically

asserted that the accused was under intoxicated state of

mind. Though it was not deposed by this witness in his

examination-in-chief, but it was elicited from his mouth

during the cross-examination by way of explanation. The

fact that accused was under intoxicated state of mind

was not even denied. Though this witness was cross-

examined at length, but nothing worthy was elicited so

as to discard his evidence. Further, no reasons are

forthcoming for the complainant and this witness to

falsely implicate the accused.

18. P.W.7 is the victim and in her evidence she

has narrated the incident in her own way. It is also

important to note here that, her statement under Section

164 of Cr.P.C. recorded by the Magistrate was also in her

own language and her statement under Section 164 of

Cr.P.C. marked at Ex.P25 reads as under:

"PÀ®A 164 ¹.Dgï.¦.¹. CrAiÀÄ°è £ÉÆAzÀ ¨Á®QAiÀÄ ºÉýPÀ

¨Á®QAiÀÄÄ C®àªÀ¬Ä EgÀĪÀÅzÀjAzÀ F PɼÀV£À ¥Àæ±ÉÚUÀ¼À£ÀÄß PÉüÀ/Á¬ÄvÀÄ.

     ¥Àæ±Éß 1 :        ¤£Àß ºÉ¸ÀgÉãÀÄ?
     GvÀÛgÀ :          PÀ«vÁ
     ¥Àæ±Éß 2 :        ¤Ã£ÀÄ J°èUÉ §A¢¢ÝAiÀiÁ?
     GvÀÛgÀ :          ¨Á®Q ¸ÀªÀÄ¥ÀðPÀªÁV GvÀÛj¹gÀĪÀÅ¢/Áè.
     ¥Àæ±Éß 3 :        £Á£ÀÄ AiÀiÁgÀÄ? (£ÁåAiÀiÁ¢üñÀgÀ §UÉÎ)
     GvÀÛgÀ :          ¸ÀªÀÄ¥ÀðPÀ GvÀÛgÀ ¤ÃrgÀĪÀÅ¢/Áè.
     ¥Àæ±Éß 4 :        ¤£ÀUÉ J£ÁzÀgÀÆ vÁæ¸ÀÄ DVvÁÛ?
     GvÀÛgÀ :          ºËzÀÄ.

£Á£ÀÄ ºÉÆgÀUÉ PÀĽvÀÄPÉÆArzÉÝ vÀA¨Á¹ PÁPÁ EvÀ£ÀÄ £À£ÀߣÀÄß PÉÊ »rzÀÄ M¼ÀUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV £À£Àß ZÉÆtÚ ©aÑ ªÉÄÊ ªÉÄÃ/É ©zÀÝ ªÀÄvÉÛãÀÄ ªÀiÁrgÀĪÀÅ¢/Áè. £ÉÆAzÀ ¨Á®QAiÀÄÄ ¸ÀjAiÀiÁV GvÀÛj¸ÀzÉà EzÀÄÝzÀjAzÀ ªÀÄÄA¢£À ºÉýPÉAiÀÄ£ÀÄß §gÉzÀÄPÉƼÀî®Ä DUÀ°®è.

¨Á®QAiÀÄÄ ºÉýzÀ ºÉýPÉAiÀÄ£ÀÄß CªÀ¼À vÀAzÉ-vÁ¬Ä ªÀÄÄAzÉ ¥ÀqÉzÀÄPÉƼÀî/Á¬ÄvÀÄ."

19. The language used by the child clearly

discloses the penetrative sexual assault. Further, in her

evidence, she deposed that her uncle-accused came and

took her inside the house and removed her clothes and

he too got undressed, fall on her and bit her chin. She is

not able to disclose certain aspects being a child, but she

discloses them by gesture. She specifically stated that

she suffered pain in vagina. Her evidence is also

consistent to the effect that, when she cried P.W.5

rushed inside the house and accused got up and ran

away by pushing P.W.5. She also admitted regarding she

being treated by the doctor and there was swelling and

pain in her vagina. This witness was cross-examined and

no doubt she has not answered certain questions

regarding she being tutored and except staring at the

defence counsel, which was recorded in her evidence. But

her age and over all circumstances will have to be taken

and her evidence is consistent that there was penetrative

sexual assault on her and she denied in respect of she

being giving false evidence.

20. Further, the evidence of P.W.5 discloses that

victim was crying and she was shivering and definitely

the minor child ought to have undergone lot of mental

trauma and shock because of such an activity and putting

questions on her regarding this aspect would definitely

cause lot of mental stress on the victim as she would go

on recollecting the trauma which she underwent because

of this inhuman act.

21. The evidence of P.Ws.1, 5 and 8 is again

corroborated by the evidence of P.W.11-Medical Officer,

Government Hospital, Haveri who has treated the victim

on 28.07.2014. In her evidence, she has deposed that on

28.07.2014 evening at 6.30 p.m. when she was in

District Hospital, the victim girl aged about 5 years was

produced by Byadagi police for medical examination who

was accompanied by her mother and the victim has

disclosed penetrative sexual assault on her. Her evidence

discloses that her organs were not grown for sexual

intercourse. However, she was physically o.k. The

witness has also deposed that when she examined her

private part, she noticed an abrasion on the left thigh

and she was complaining pain in vagina and it was

congested. She has also deposed that she noticed some

swelling inside the vagina and the physical examination

reveals that victim has undergone physical penetration of

vagina. She has also deposed that, FSL report does not

disclose seminal stains and others, but physical

examination establishes that there was forcible

penetration of vagina. Her evidence further discloses that

there was contusion wound on the frontal region. No

doubt, her evidence further discloses that hymen was

intact, but there was penetrative sexual assault on her.

Much cross-examination was made regarding if there is a

penetration there is possibility of rapture of hymen, but

witness has specifically stated that it depends on the

pressure used and admittedly, the genital organs of the

victim were not grown sufficiently.

22. She has also deposed regarding giving

certificate as per Exs.P9 and 12. Much cross-examination

is made regarding penetration and in such an event, the

victim being minor child unable to sustain such an

assault, but that itself is not a ground to discard medical

evidence.

23. Learned counsel for the appellant has

contended that even if the entire evidence is taken into

consideration, it will at most disclose that an attempt of

rape, but not a rape and as such, he contended that

offence under Sections 4 of POCSO Act and Section 376

of IPC are not established. However, the said arguments

holds no water as Section 375 defines rape and this

amendment was brought in the year 2013 w.e.f.

03.02.2013 and it reads as under:

"[375. Rape.--A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person;

or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--

First.--          Against her will.


Secondly.--       Without her consent.


Thirdly.--        With her consent, when her consent has
                 been obtained by putting her or any

person in whom she is interested, in fear of death or of hurt.

Fourthly.-- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--        With her consent when, at the time of
                 giving   such   consent,   by   reason     of

unsoundness of mind or intoxication or the

administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.-- With or without her consent, when she is under eighteen years of age.

Seventhly.-- When she is unable to communicate consent.

Explanation 1.--For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.--A medical procedure or intervention shall not constitute rape.

Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

24. The explanation (1) of Section 375 discloses

that vagina shall also include labia majora. The evidence

of P.W.11 and her report Ex.P9 clearly disclose that there

is abrasion over labia majora of the victim which

establish that there was a penetration and insertion.

Hence, the act of the accused falls under the definition of

rape as defined under Section 375 as the labia majora is

also part of vagina and there is penetration and injuries

to this part. As such, the said arguments advanced by

the learned counsel for the appellant holds no water. The

evidence of P.W.11 clearly establish that there were

injuries in vagina of the victim and she was totally

discomfort and was complaining pain because of forcible

penetration of vagina. Ex.P9 is the medical report and

Ex.P12 is the final report issued by this witness and

though there is no discharge of semen, it depends on

various aspects and evidence clearly discloses that when

accused attempted for penetration, the victim cried and

immediately P.W.5 rushed to the spot and as such, the

accused ran away. The evidence of P.W.11-Medical

Officer is completely corroborative in terms the evidence

of P.Ws.1, 5 and 7.

25. Much cross-examination is made regarding

victim suffering some skin problem of etching at vagina

but the said suggestion came to be denied by the doctor.

No reasons are forthcoming for discarding the medical

evidence and it is hard to accept the contention of the

accused that a false case has been registered and such

possibility is remote as it is not expected at the risk of

reputation of the family of the complainant and future of

the victim.

26. P.W.18 has recorded statement of the victim

under Section164 of Cr.P.C. which is marked at Ex.P24

also corroborates the case of the prosecution. On

marshalling the evidence on record especially of P.Ws.1,

5, 7 and 11, it is evident that accused did committed

penetrative sexual assault on the victim by committing

rape and it falls under the definition of rape.

27. The trial court has appreciated oral and

documentary evidence in total and has rightly come to

the conclusion that there is a penetrative sexual assault

on the victim girl and it is an inhuman act. As such, the

learned Special Judge has imposed sentence of life with

fine to the accused which is now being challenged.

28. The evidence does establish that accused did

committed said offence as alleged and the prosecution

has proved the guilt of the accused beyond all reasonable

doubt. Under these circumstances, the judgment of

conviction and order of sentence passed by the trial court

does not suffer from any perversity or infirmity so as to

call for interference by this court.

29. Insofar as arguments of the learned counsel

for the appellant regarding remission of the sentence, no

special reasons are forthcoming and the conduct of the

accused is required to be considered as he targeted a

tender aged child to satisfy his lust and it is likely to

damage the reputation of the child in future also. Such

offences cannot be taken in a lighter way and the age of

the accused itself is not a criteria and looking to these

facts and circumstances, the sentence imposed by the

learned Special Judge is reasonable one and does not call

for any interference. Under these circumstances, looking

to the facts and circumstances, we answer the point No.1

under consideration in the affirmative and point No.2 in

the negative. The appeal being devoid of any merits

needs to be dismissed. Accordingly, we proceed to pass

the following:

ORDER The criminal appeal is dismissed by confirming the

judgment of conviction and order of sentence passed by

the Principal District and Sessions Judge and Special

Judge, Haveri in Spl.S.C.No.17/2014.

Sd/-

JUDGE

Sd/-

JUDGE MBS/-