Karnataka High Court
Madvacharya S/O Krishnacharya ... vs The State Of Karnataka on 4 August, 2023
Bench: Anil B Byabkj
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CRL.A No. 100299 of 2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100299 OF 2017
BETWEEN:
MADVACHARYA S/O KRISHNACHARYA HIREHAL
AGE: 45 YEARS, OCC: PVT. SERVICE,
R/O. AMATE CHAWL, H.NO.844, TABIB LAND,
HUBBALLI.
SAMREEN ...APPELLANT
AYUB (BY SRI. S. H. MITTALKOD, ADV.)
DESHNUR
Digitally signed by
SAMREEN AYUB DESHNUR
Location: High Court of
AND:
Karnataka, Dharwad
Date: 2023.08.09 15:16:31
+0530
THE STATE OF KARNATAKA
BY P I BENIGERI POLICE STATION,
HUBBALLI,
REP. BY S.P.P. HIGH COURT OF KARNATAKA
DHARWAD BENCH.
...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO ALLOW THE APPEAL AND SET ASIDE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE RECORDED
BY THE LEARNED II ADDITIONAL DISTRICT AND SESSIONS AND
SPECIAL JUDGE DHARWAD AT DHARWAD IN SPL SC. NO. 09/2015,
DATED 22-07-2017, THEREBY CONVICTING THE APPEALLANT FOR
THE OFFENCE PUNISHABLE UNDER 5(n) R/W.SECTION 6 OF POSCO
ACT 2012 AND SENTENCING HIM TO UNDERGO RIGOROUS
IMPROSONMENT FOR 10 YEARS AND TO PAY A FINE OF RS. 5,000/-
IN DEFAULT OF PAYMENT OF FINE APPELLANT SHALL UNDERGO
SIMPLE IMPRISONMENT OF 2 MONTHS, FURTHER IMPRISONMENT
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CRL.A No. 100299 of 2017
FOR PERIOD OF 5 YEARS AND SHALL PAY FINE OF RS. 2,000/- IN
DEFAULT OF THE PAYMENT OF AMOUNT SIMPLE IMPRISONMENT OF
TWO MONTHS.
THIS CRIMINAL APPEAL COMING ON FOR HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
12.06.2023, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
Appellant/accused feeling aggrieved by the judgment on
the file of II Addl. District and Sessions and Spl. Judge,
Dharwad, in Special S.C.No.9/2015 dated 22.07.2017 preferred
this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that on
07.12.2014 and 08.12.2014 and also on previous two occasions
at different dates during night hours, accused committed rape
on his minor daughter of 15 years in his house bearing No.844,
Tabib land, Amate Chawl, Hubballi. Accused has committed
penetrative sexual assault not only on victim - PW-1, but also
on her sister - PW-2/CW-4. On these allegations made in the
complaint, Investigating Officer on completion of investigation
filed the charge-sheet.
CRL.A No. 100299 of 2017
4. In response to summons, accused appeared
through learned counsel. The trial Court after being prima facie
satisfied framed the charges against accused. Accused pleaded
not guilty and claimed to be tried. Prosecution in order to
prove the allegations made against accused relied on the oral
evidence of PWs-1 to 11 and documents at Exs.P.1 to 17 and
Ex.D.1 was confronted through the evidence of PW-4.
5. On closure of the prosecution evidence, statement
of accused under Section 313 of Cr.P.C. came to be recorded.
Accused denied all incriminating material evidence appearing
against him and claimed that since he adviced his daughter not
to be in contact with the girls having bad antecedents, filed this
false case. The trial Court after appreciation of evidence on
record convicted accused for the offences alleged against him
and imposed sentence as per order of sentence.
6. Appellant/accused challenging the judgment of
conviction and order of sentence contended that Trial Court has
not appreciated the fact of there being inordinate delay in filing
the complaint and appreciate the evidence of PWs-1 to 3 in the
light of defence of accused. PW-2, sister of the victim and PW-
3, mother of victim have not supported the case of prosecution.
CRL.A No. 100299 of 2017
The admissions given by PW-1 victim in the cross-examination
have not been appreciated by the trial Court in the light of
settled legal principles to prove the allegations against accused.
The medical evidence in the form of PW-9 who has examined
the victim and issued the medical certificate Ex.P.11 runs
contrary to the case of prosecution and the allegation of
accused committing rape on his minor daughter is completely
ruled out. The evidence of PW-4 - class teacher and PW-5 -
Principal of Fathima High School, before whom the victim is
said to have revealed about the incident of sexual assault on
her is totally unreliable. Similarly, the evidence of PW-6 -
President, PW-7 - Coordinator and PW - 8 - Member of District
Child Welfare Committee, further application of victim Ex.P.4
and the letter Ex.P.9 coupled with the proceedings Ex.P.10
cannot be relied to substantiate any of the allegations made
against accused. The mere fact that PW-1 was subjected to
cross-examination after gap of two months as observed by the
trial Court cannot be treated as a ground to discard the
admission of victim PW-1 in the cross-examination. The
approach and appreciation of oral and documentary evidence
by trial Court is contrary to law and evidence on record.
Therefore, prayed for allowing the appeal and to set aside the
CRL.A No. 100299 of 2017
judgment of conviction and order of sentence passed by trial
Court. Consequently, to acquit accused from the charges
levelled against him.
7. In response to the notice of appeal, learned High
Court Government Pleader has appeared for respondent/State.
8. Heard the arguments of both sides.
9. On careful perusal of oral and documentary
evidence placed on record by the prosecution, it would go to
show that accused is working as a Librarian in SDM College,
Dharwad. The mother of victim was admitted to Vivekanand
Hospital for her 5th delivery. The maternal grandmother,
father, victim and her sister PW-2 were in the house during the
month of December. It is alleged by the prosecution that on
07.12.2014 and 08.12.2014 during night hours in the house of
complainant in Tabib land, Mantur road, Amate Chawl, Hubballi,
the accused committed forcible sexual intercourse on minor
victim who was 15 years old and he administered threat with
dire consequences, in case if she discloses about the incident to
anybody. Accused being aware that his victim daughter was
below 18 years at the time of incident has committed
penetrative sexual assault on her.
CRL.A No. 100299 of 2017
10. The prosecution to prove the said allegations mainly
relies on the evidence of victim-PW-1, and the evidence of
doctor PW-9 who has examined the victim and issued medical
certificate Ex.P.11. The said evidence is sought to be
corroborated by the evidence of PW-4 - class teacher and PW-5
- Principal of Fathima High School, wherein victim was
studying. On they coming to know about the incident from
victim PW-1, informed to District Child Welfare Committee and
PWs-6 to 8 have enquired into the matter with victim then
criminal law was set into motion on the complaint Ex.P.1 of
victim PW-1. The prosecution also seeks to rely on the
evidence of Investigating Officer, PW-11.
11. The prosecution by evidence on record must prove
that accused has committed penetrative sexual assault on his
minor daughter in the house itself while his wife was admitted
to Vivekanand Hospital for 5th delivery. Accused has
threatened the victim PW-1 with dire consequences if she
reveals about the incident to anybody.
12. The prosecution to prove that victim PW-1 was
minor as on the date of incident relied on the evidence of PW-1
and PW-5 - Principal of Fathima High School who has issued
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birth certificate Ex.P.8 on the entries made in the school
records. So also the evidence of PW-10, doctor who has
examined the victim PW-1 for age determination and issued
certificate Ex.P.12. The evidence of PW-1 is specific and
assertive that she was studying in 8th standard at Fathima High
School, Keshwapur, Hubballi and her date of birth is
23.02.2000. The evidence of PW-5 - Principal of Fathima High
School, Keshwapur, Hubballi, would go to show that victim
PW-1 is studying in Fathima High School and on the request of
police authorities he has furnished the birth certificate of victim
Ex.P.8 based on the records maintained in the school and her
date of birth is 23.02.2000. Apart from this, PW-10 who has
examined the victim for age determination has deposed to the
effect that victim girl was examined physically, dentally and
radiologically. On detailed examination recorded his opinion
regarding the age of victim between 16 to 18 years and issued
certificate Ex.P.12. Looking to the specific evidence of victim
PW-1 and the evidence of Principal PW-5, further date of birth
of victim as per school records Ex.P.8, it is evident that the
date of birth of victim is 23.02.2000. The incident has taken
place on 07.02.2014. If the same is calculated, then as on the
date of incident, victim was aged 14 years 10 months and 12
CRL.A No. 100299 of 2017
days. The evidence of PW-1 victim and Principal PW-5 is not
seriously challenged regarding the date of birth of victim as
recorded in the school records Ex.P.8 as on 23.02.2000. The
opinion recorded in Ex.P.12 by PW-10 would go to show that
the victim is above 16 years and below 18 years. Therefore,
from the said evidence on record, prosecution has proved that
victim PW-1 was minor as on the date of incident.
13. The material witnesses to speak about accused
having committed penetrative sexual assault in the house is
only PW-1 victim, since PW-2 sister of the victim and mother
PW-3 have not supported the case of prosecution.
14. PW-1 in her examination-in-chief has narrated
about the incident that took place in the house and deposed to
the effect that she was studying in 8th standard in Fathima High
School, Keshwapur, Hubballi and her date of birth is
23.02.2000. The mother of victim was admitted to Vivekanand
Hospital, Hubballi, in December for 5 th delivery. During the said
period the maternal grandmother, father, victim, her sister and
brother were in the house. The maternal grandmother was
sleeping in the room. Accused came to the home at about
12.30 a.m. to 1 a.m. and slept by her side, further he was
CRL.A No. 100299 of 2017
inappropriately touching her and attempted to commit sexual
intercourse by undressing her and she suffered lot of pain.
Accused was licking on her chest and private part and
attempted to put his penis in her vagina, due to which she
suffered lot of pain, further he has also licked her sister CW-4
by taking her on chest and prior to this incident on 3 to 4
occasions committed similar act. PW-1 victim though informed
of earlier incident to her mother, but she did not heed to her
words. On account of sexual assault from her father, she was
spending many sleepless nights and drowsing in the school.
Ultimately, she informed about the incident to her class teacher
- PW-4 who carried her to the Principal PW-5, before whom she
narrated about she being sexually harassed in the house by her
father and committed penetrative sexual assault. They in turn
informed to the District Child Welfare Committee and before
them also, she revealed about the incident and then she filed
the complaint, Ex.P.1. PW-1 victim has further deposed to the
effect that she has given application before the District Child
Welfare Committee Ex.P.4 and she was also subjected to
medical examination before whom also, she narrated about the
incident of sexual assault from her father. PW-1 has further
deposed that while she was being carried to Magistrate Court
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CRL.A No. 100299 of 2017
for recording evidence, her mother was weeping and insisted
the victim to withdraw complaint and due to such pressure of
her mother, she has given statement before the Magistrate
Ex.P.5. On account of unhealthy atmosphere in the house,
herself and her sister are under the shelter of children home.
15. The defence counsel on the same day did not cross-
examine the victim and took time for cross-examination.
Victim PW-1 was cross-examined exactly after two months and
during her cross-examination she has given contrary evidence
than what she has stated in her examination-in-chief. Further,
admitted all the suggestions put to her by the defence. The
effect of such admissions in the cross-examination will be dealt
with later while appreciating the other evidence on record.
16. PW-9 examined the victim on 31.01.2015 and
recorded the history given by victim regarding the incident and
issued medical certificate as per Ex.P.11. On genital
examination, he found vagina not visualized because of
imperforate hymen and hymen was imperforate. On local
genitals examination, evidence of signs of recent sexual
intercourse was absent which neither refutes nor confirm the
forceful sexual intercourse or assault. He has opined that there
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CRL.A No. 100299 of 2017
is no evidence of recent forceful intercourse which neither
refute nor confirm the forceful sexual intercourse or assault.
PW-9 has deposed that he did not collect nail clips, pubic hair
and clothes, since the victim has taken bath and she was
examined after 20 to 25 days from the date of incident.
17. The learned counsel for appellant/accused by taking
above referred evidence of PWs-1 and 9 vehemently argued
that admissions of PW-1 in cross-examination and the evidence
of PW-9 totally rules out the possibility of accused committing
penetrative sexual assault on victim. There is also inordinate
delay in filing complaint and the possibility of false implication
of accused in view of the defence of accused cannot be ruled
out. The evidence of other witnesses will come into play only
when the prosecution establishes the allegation of penetrative
sexual assault on PW-1.
18. It is the specific evidence of victim-PW-1 that she
was sexually assaulted by her father and she was getting lot of
pain. She informed about the incident to her mother, but she
was only obeying the words of accused and has no recognition
at all. PW1 ultimately informed about the incident to her class
teacher PW9. PW9 in her evidence has deposed that victim
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CRL.A No. 100299 of 2017
PW1 was drowsing in the class and when questioned, she
remained unanswered and was very shy. One day class
monitor informed her about sexual harassment suffered by
PW1 in the house from her father. Thereafter she has taken
the victim to principal of the school PW-5 and before PWs-4 and
5, victim revealed about the incident. PW-5 in turn informed to
District Child Welfare Committee.
19. PW-6 president, PW-7 co-ordinator and PW-8
member of District Child Welfare Committee. They have held
counseling with victim-PW-1 and she narrated about the
incident of sexual harassment from her father who was
accompanied her sister PW-2 and given application Ex.P.4.
PW-7 gave letter Ex.P.9 after counseling with victim PW-1 on
30.01.2015 being satisfied that father of victim committed
sexual harassment. The proceedings of District Child Welfare
Committee is Ex.P.10 and report would reveal about narration
of entire incident by victim PW-1. PW-8 is doctor by profession
and member of District Child Welfare Committee also spoken
about the application of victim PW1 and her sister PW2 as per
Ex.P.4 and the proceedings drawn Ex.P.10. The sequence of
events as referred above through the evidence of PW-4 to 8 is
in the natural course and there is nothing to suggest in their
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CRL.A No. 100299 of 2017
cross examination that they have any personal vengeance
against accused to falsely implicate him in the present case.
Therefore, their evidence is worthy of credence with regard to
victim PW-1 narrating about the sexual harassment from her
own father in the house and there are no any reasons to
disbelieve their evidence.
20. The defence of accused is that he has adviced his
daughter not to be associated with girls having bad
antecedents, therefore false case is filed. Learned counsel for
accused has argued that victim has admitted the cross
examination to all the suggestions of defence counsel and
therefore her evidence is not reliable to prove any of the
allegations made against the accused. It is pertinent to note
that victim was cross examined after two months and during
cross examination, she has given contrary evidence than what
she has stated in her examination in chief. It has been elicited
in the cross examination of PW-1 that Bhagya and Jyothi are
daughters of nurse and she was ill-adviced by them who are
inimical to her parents to file the complaint and due to such
adviced, she has filed complaint Ex.P.1. Accused has not
suggested the said defence to the investigating officer PW-11.
Learned SPP cross examined the victim, since she resiled from
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CRL.A No. 100299 of 2017
her evidence in examination-in-chief. PW-1 admitted in para
16 of the cross examination that she is aware about only truth
is to be deposed before the court and accordingly she has given
her evidence on 21.11.2015 after understanding all the facts.
She further admits that if false evidence is given, punishment
will be imposed. PW-1 has never stated the above said facts in
her application at Ex.P.4 and during enquiry by PW-6 to 8, the
defence has also not suggested to them that on the ill advice of
Bhagya and Jyothi, she has given application Ex.P.4 and filed
the complaint Ex.P.1. The said admissions of victim PW.1 is
outcome of tutoring and pressurizing her to resile from her
examination in chief by taking sufficient time for cross-
examination. Therefore, without making any basic foundation
referred above during the cross examination of other material
witnesses, the evidence of victim PW-1 having admitted
suggestion as referred above cannot be accepted as sufficient
evidence to discard her examination in chief and she filed
complaint Ex.P.1 on the ill-advice of Bhagya and Jyothi.
21. Learned counsel for accused also argued that
victim PW-1 during her 164 Cr.P.C statement before the
magistrate Ex.P.5 did not reveal about the incident as narrated
in the complaint Ex.P.1 and the statement Ex.P.4, so also the
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CRL.A No. 100299 of 2017
proceedings drawn Ex.P.10. In this regard victim PW-1 has
given valid explanation in para 6 of her examination-in-chief
and deposed to the effect that when she was carried to the
Magistrate for giving statement, her mother was there and she
was weeping, further she was forcing victim PW-1 to withdraw
the complaint filed against accused. On account of such
pressure from her mother, she has given statement before the
Magistrate Ex.P.5. It is true that PW-1 states in para 14 of her
cross examination that her mother was not present and she has
not put any pressure on her. This improvement regarding the
pressure of her mother has come as an after thought.
Indisputably victim PW-1 was not cross examined on the day of
her examination-in-chief, secondly she was cross examined
after two months, thirdly the words of victim's mother being
not heard by accused, fourthly victim PW-1 revealed about
earlier incident to her mother, but she did not take any
corrective steps, fifthly there is no congenial atmosphere in the
house and victim PW-1 with her sister PW-2 are residing in
children home and lastly, her maternal uncle was present in the
Court during the cross examination of victim PW-1. If the
above factors are taken into consideration then it is evident
that victim PW-1 was put under threat not to depose against
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CRL.A No. 100299 of 2017
accused, due to which she resiled from her examination-in-
chief. Therefore the contention of learned counsel for accused
that victim PW-1 has deposed truth before Magistrate in her
statement Ex.P.5 and her admissions in the cross examination
has to be accepted cannot be legally sustained.
22. There is no any strong motive that has been
brought on record during the cross examination of PW-1 to
falsely implicate her own father in this case. There is no any
reference of two girls Bhagya and Jyothi having ill-adviced
victim-PW-1 to file false complaint against accused during the
course of his 313 Cr.P.C. statement. Accused has also not
suggested the said defence to PW-4 to 8 and investigating
officer PW-11 during the course of their evidence. Therefore,
without there being any basic foundation to probabilise the
defence of accused as referred above and for want of necessary
evidence, the defence of accused that since he adviced his
daughter not to be associated with girls having bad
antecedents, she has filed false case cannot be accepted.
23. PW-1 victim in her examination-in-chief has
narrated about incident of sexual assault as per the complaint
allegations Ex.P.1, so also in the application given before
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CRL.A No. 100299 of 2017
District Child Welfare Committee Ex.P.4 and the proceedings
drawn as per Ex.P.10. PW-1 who was cross examined after two
months of her examination-in-chief given contrary evidence
than what she has stated in her examination-in-chief. The
effect of such admissions given by victim PW-1 will have to be
considered in the light of above referred evidence on record
and judicial pronouncement regarding appreciation of evidence
of such witness. The trial Court relied on the following three
judgments:
i) ILR 2000 Kar. 2967 (SC) State Vs. Tulasidaram
ii) 2001 (7) SCC 318 Anil Rai Vs. State of Bihar
iii) ILR 2001 Kar. 355 Gopi @ Razor Gopi @ Disco
Gopi @ Gopinaidu Vs. State of Karnataka
The principles enunciated in all these three decisions is
with regard to appreciation of evidence of hostile witnesses. It
has been observed and held that where the witness do not fully
support the case of prosecution then dependable portion of
evidence which inspires the confidence of Court and the same is
corroborated by other evidence then such evidence can be
relied.
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24. This Court had an occasion to consider the effect of
cross examination, where the witness fully supports the case of
prosecution in examination-in-chief in the judgment reported in
Krishna Vs. State of Karnataka reported in 2010 Crl.L.J.
1515, wherein it has been observed and held that,
"Evidence Act-Sec.3-Hostile witness-Credibility-
Witness fully supports prosecution case in his
examination-in-chief as to any material and relevant fact-
but turns hostile to prosecution in his cross-examination
made on behalf of the accused on a later date and states
contrary to his evidence in his examination-in-chief as to
the said fact-Evidence of such hostile witness in his
examination-in-chief has to be accepted as true if it is not
shown that what he stated in his examination-in-chief was
not stated by him at the earliest opportunity, in his
statement recorded under Sec.161 of Cr.P.C by the I.O.
Thus, it is clear that what all they have stated in their
examination-in-chief before the court was stated by them
before the I.O. at the earliest opportunity, in their
statements recorded by him during investigation. In this
view of the matter, I am of the considered opinion that
where a witness fully supports the prosecution case in his
examination-in-chief as to any material and relevant fact
but turns hostile to the prosecution in his cross
examination made on behalf of the accused on a later
date and states contrary to his evidence in his
examination-in-chief as to the said fact the evidence of
such hostile witness in his examination-in-chief has to be
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CRL.A No. 100299 of 2017
accepted as true if it is not shown that what he stated in
his examination in chief was not stated before the I.O."
This judgment squarely applies to the facts of the present case.
In the present case also victim PW1 has supported the case of
prosecution as alleged in the complaint Ex.P.1, so also in the
application at Ex.P.4 and the proceedings drawn by District
Child Welfare Committee Ex.P.10. However, when she was
cross examined after two months, she has resiled from her
examination-in-chief. The earliest statement of victim PW-1 as
per Exs.P.1, P.4, so also in the proceedings drawn by District
Child Welfare Committee Ex.P.10 and accordingly given her
evidence in examination-in-chief. Therefore, evidence of such
witness in examination-in-chief has to be accepted as true, if it
is not shown that what has been stated in examination-in-chief
was not stated by victim PW-1 at the earliest opportunity. In
the present case victim PW-1 has stated at the earliest
opportunity regarding the incident of sexual assault by accused
in the complaint Ex.P.1, application at Ex.P.4 and on the basis
of which the proceedings have been drawn as per Ex.P.10,
further the same is reiterated in her examination-in-chief.
Therefore, the trial Court has rightly accepted the examination-
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in-chief of PW-1, since she was won over by the pressure of her
family members and maternal uncle.
25. Learned counsel for accused also argued that there is
inordinate delay in filing the complaint. The incident took place
on 07.12.2014 and the complaint Ex.P.1 is filed on 30.01.2015.
The situation under which the incident has occurred in the
house of victim PW-1 and perpetrator of the crime is none else
than father of victim, mother of victim was admitted to
Vivekananda hospital Hubbali for her fifth delivery and she was
being under control of accused and other attending
circumstances will have to be taken into consideration while
deciding the issue of delay caused in filing the complaint.
26. When the incident of sexual harassment takes place
against minor victim within the house by a member of a family
then in such a situation, it cannot be expected that victim
should go immediately to the police station for filing complaint.
In the normal course, victim will be informing about the
incident to other members of the family. In the present case
PW-3 mother of victim was admitted in the hospital for her fifth
delivery and above all she was under the control of her
husband, therefore naturally victim has revealed about the
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incident to PW-4 and 5 who are the class teacher and the
principal of the school in which victim is studying. Thereafter,
they informed to District Child Welfare Committee and the
committee held counseling with victim, further victim and her
sister jointly give application Ex.P.4. PW-7 gave letter after
counseling Ex.P.9 that sexual assault incident has taken place
in the house of victim. The proceedings have been drawn by
District Child Welfare Committee Ex.P.10 and then complaint is
filed Ex.P.1. Looking to the above sequence of events and
victim being minor having no any worldly knowledge before
whom she should complain and victim was of shy nature, it can
be said that delay in filing the complaint has been explained by
the evidence of PW-1.
27. Learned counsel for accused relied on the judgment
of Hon'ble Apex Court in B.Jayaraj Vs. State of Andhra
Pradesh reported in (2014) 13 SCC 55. This case relates to
the offence under P.C. Act and it has been held that drawing of
presumption arises only when prosecution discharges it's initial
burden of proving the charges leveled against accused.
Reliance is also placed on another judgment of Hon'ble Apex
Court in Ram Niwas Vs. State of Hariyana reported in 2022
SCC OnLine SC 1007, wherein it has been observed and held
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that suspicion however strong it may be, cannot take place
proof beyond reasonable doubt. An accused cannot be
convicted on the ground of suspicion, no matter how strong it
is. An accused is presumed to be innocent unless proved guilty
beyond the reasonable doubt. There cannot be any dispute
with regard to the proposition of law laid down in the said
decision. Reliance is also placed on another judgment of
Hon'ble Apex Court in State of Rajasthan vs. Babu Meena
reported in 2013 (4) SCC 206, wherein the Hon'ble Apex
Court in view of the facts involved in the said case held that,
testimony of prosecutrix was wholly unreliable and the view
taken by Trial Court for acquitting the accused affirmed by the
Hon'ble High Court has been confirmed.
28. The Trial Court has convicted the accused for the
offence under Section 376 of IPC and Section 6 of the POCSO
Act. The complaint allegations Ex.P.1 would go to show that
victim alleges that accused kissed her and licked the chest,
further tried to insert his private part, but it did not enter, since
she was having urine problem and ejaculated on her thigh. The
evidence of PW.1, in her examination in-chief is silent about
accused ejaculating on her thigh. It is deposed by PW.1 that
accused tried to commit forcible sexual intercourse and she
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suffered lot of pain. The medical evidence in the form of PW.9
and the medical certificate as per Ex.P.11 would go to show
that on genital examination, he found vagina not visualized
because of imperforate hymen. On local genital examination,
evidence of signs of recent sexual intercourse was absent which
neither refute nor confirm the forceful sexual
intercourse/assault. The hymen is a thin membrane. It most
often covers part of the opening of the vagina. Imperforate
hymen is when the hymen covers the whole opening of the
vagina. Therefore, the oral evidence of PW.1 that accused has
committed forcible penetrative sexual assault on her is not
supported by the evidence of doctor PW.9 and medical
certificate Ex.P.11. In order to prove the offence under Section
376 of IPC and Section 6 of the POCSO Act, penetration of
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 is
required to be proved. In order to attract Section 6 of the
POCSO Act, aggravated penetrative sexual assault must be
proved.
29. In this context, it is useful to refer the judgment of
Hon'ble Apex Court in Tarkeshwar Sahu vs. State of Bihar
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reported in (2006) 8 SCC 560, wherein it has been observed
and held that,
" No offence under Section 376, IPC can be made out
unless there was penetration to some extent. In
absence of penetration to any extent would not bring
the offence of the appellant within the four corners of
Section 375 of the Indian Penal Code. Therefore, the
basic ingredients for proving a charge of rape or the
accomplishment of the act with force. The other
important ingredient is penetration of male organ within
the labia, majora or the vulva or pudenda with or
without any emission of semen or even an attempt at
penetration into private part of the victim completely,
partially or slightly would be enough for the purpose of
Sections 375 and 376 of IPC.
30. In another judgment of Hon'ble Apex Court Aman
Kumar vs. State of Haryana reported in AIR 2004 SC 1497,
wherein it has been observed and held that,
" Penetration is the sine qua non for an offence of rape.
In order to constitute penetration, there must be
evidence clear and cogent to prove that some part of
the virile member of accused was within the labia of the
pudendum of the woman, no matter how little. To
constitute the offence of rape, it is not necessary that
there should be complete penetration of penis with
emission of semen and rupture of hymen. Partial
penetration within the labia majora of the vulva of
pudendum with or without emission of semen is
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sufficient to constitute the offence of rape as defined in
the law. The depth of penetration is immaterial in an
offence punishable under Section 376 of IPC."
This judgment has also been referred in Tarakeshwar Sahu's
case cited supra. The Hon'ble Apex Court in both the decisions having
held that the offence under Section 376 of IPC has not been proved
and convicted the accused for the lesser offence under Section 354 of
IPC. Therefore, in view of the principles enunciated in the
aforementioned judgment of the Hon'ble Apex Court, it is
evident that penetration to any extent is sine qua non for
proving the offence under Section 376 of IPC. Similarly, same
is the legal requirement to prove the offence under Section 6 of
POCSO Act.
31. In the present case, the evidence of PW.1 regarding
alleged repeated penetrative sexual assault is not supported by
the evidence of doctor PW.9 and the medical certificate
Ex.P.11. Therefore, the Trial Court was not justified in
convicting the accused for the offence under Section 376 of IPC
and Section 6 of POCSO Act. However, there is enough material
evidence through the evidence of PW.1 that accused has
committed sexual assault in terms of Section 7 of the POCSO
Act. It is profitable to refer Section 7 of the POCSO Act, which
reads as follows;
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" Section 7 - Sexual Assault - whoever, with sexual
intent touches the vagina, penis, anus, or breast or
makes the child touch the vagina, penis, anus or breast
of such person or any other person, or does any other
act with sexual intent which involves physical contact
without penetration is said to commit sexual assault."
If the evidence of PW.1 is scrutinized in terms of legal
requirement of Section 7 of POCSO Act, then it is evident that
PW.1 has specifically deposed to the effect that her father took
her on his chest and inappropriately was touching and kissed
on her cheek and also mouth to mouth kiss, he was also licking
her chest and private part. The accused did same act 3 to 4
times prior to the incident referred in the complaint. The
available material evidence on record demonstrate the fact that
accused has committed sexual assault in terms of Section 7 of
the POCSO Act, which attracts penal provision in terms of
Section 8 of the POCSO Act. It is true that there is no any
specific charge against accused for the offence under Section 8
of the POCSO Act. However, in view of invoking the provisions
of Section 222 of the Cr.P.C., the accused charged with major
offence can always be convicted for the minor offence, is
necessary ingredients of minor offence are present. In this
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context it is useful to refer the judgment of Hon'ble Apex Court
in Lakhjit Singh and another Vs. State of Punjab reported
in 1994 Supp (1) SCC 173 and another judgment of Hon'ble
Apex Court Shamnsaheb M Multani Vs. State of Karnataka
reported in (2001)2 SCC 577, wherein the Hon'ble Apex Court
in both these decisions held that where the accused is charged
with major offence can always be convicted for the minor
offence, if necessary ingredients of minor offence are present.
32. The offence under Section 8 of the POCSO Act
attract punishment with imprisonment of either description for
a term which shall not be less than three years, but which may
extent to five years and shall also be liable to fine. The
imposition of imprisonment of not less than three years and
fine is mandatory for the offence under Section 8 of the POCSO
Act. Looking to the facts and circumstances of the case and
the evidence of PW.1, if accused is sentenced to undergo
simple imprisonment for three years and pay a fine of
Rs.10,000/- in default of payment of fine sentenced to undergo
simple imprisonment for three months is ordered will meet the
ends of justice. Consequently, proceed to pass the following;
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Order
The appeal filed by appellant/accused is hereby partly
allowed.
The judgment of the Trial Court on the file of II Additional
District and Sessions and Special Judge, Dharwad in Spl.SC
No.9/2015, dated 22.07.2017, is ordered to be modified as
under;
Accused is convicted for the offence under Section 8 of
the POCSO Act, and sentenced to undergo simple imprisonment
for three years and pay a fine of Rs.10,000/- in default of
payment of fine to undergo simple imprisonment for three
months.
The accused is acquitted for the offence punishable under
Section 376 of IPC and Section 6 of the POCSO Act.
The Registry is directed to transmit the records with the
copy of this judgment to trial Court.
Sd/-
JUDGE
Jm/gsr/mv
