Karnataka High Court
Balakondaiah vs State Of Karnataka on 11 December, 2023
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CRL.A No. 843 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 843 OF 2018
Between:
Balakondaiah
S/o. B.Kondaiah,
Aged about 29 years,
R/at Government QG No.99/6,
Meanee Line MEG and Center,
Halasuru, Bengaluru City
Permanent Address
Nagalakuntal, Porunamilla,
Kadapa District, Kadapa.
...Appellant
Digitally signed
by VEERENDRA
KUMAR K M (By Sri. M.Shashidhara, Advocate)
Location: HIGH
COURT OF And:
KARNATAKA
1. State of Karnataka
By Halsoor Police Station
Represented by
State Public Prosecutor
High Court of Karnataka,
Bengaluru-560 001.
2. Mrs. Nishat Warsi,
W/o. M Alam,
R/at No.1/7 Meanee Lines,
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CRL.A No. 843 of 2018
MEG and Center, Halasuru
Bengaluru-560042.
...Respondents
(By Sri. Vijayakumar Majage, SPP-II a/w
Sri Diwakar Maddur, HCGP for R1;
R2 - Served, Unrepresented)
This Criminal Appeal is filed under Section 374(2) Cr.P.C.
praying to set aside the judgment of conviction dated
27.02.2018 and sentence dated 28.02.2018 passed by the LIII
Additional City Civil and Sessions Judge, Bengaluru in
Spl.C.C.No.512/2017 - convicting the appellant/accused for the
offence p/u/s 354-A of IPC r/w 7(m) of POCSO Act and section
366 of IPC and section 376 of IPC r/w section 3 r/w 4 of POCSO
Act.
This Criminal Appeal, coming on for final hearing, this
day, Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is by the accused in
Spl.C.C.No.512/2017 on the file of the LIII
Additional City Civil and Sessions Judge,
Bengaluru. The accused was tried for the offences
punishable under Sections 354-A of IPC read with
Section 7(m) (it should be 9(m)) read with Section
8 of POCSO Act, Section 366 of IPC and Section
376 of IPC read with Section 3 read with Section 4
of POCSO Act.
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2. The trial court by its judgment dated
27.02.2018, found the accused guilty of these
offences, but while passing the order on sentence,
directed the accused to undergo imprisonment till
his death for the offence punishable under Section
376 of IPC read with Section 3 read with Section 4
of POCSO Act. The trial court did not find it
necessary to sentence the accused separately for
the offence under Section 354A of IPC read with
Section 7(m) (it should be 9(m)) read with Section
8 of POCSO Act and Section 366 of IPC.
3. The prosecution case is about subjecting
a minor girl of 9 years to penetrative sexual
assault by the accused. The incident occurred on
13.08.2017. The victim girl was cycling in the
evening time nearby her house situated within the
compound of Maenee Lane quarters, MEG Centre,
Bengaluru. The accused is a school bus driver. He
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enticed the girl and took her to his house, where
he subjected her to sexual abuse.
4. It is not necessary to narrate the entire
incident because the learned counsel for the
appellant is mainly on the question of quantum of
sentence imposed on the accused. However, it
may be stated that the victim girl and the other
witnesses have completely testified the incident
and the version of the victim girl finds
corroboration from the medical evidence.
5. The main submission of Sri
M.Shashidhara, learned counsel for the appellant /
accused is that the trial court has not applied the
law as was applicable on the date of the incident.
The incident took place on 13.08.2017. By that
time, amendments to IPC and the POCSO Act had
not been brought. For the offence under Section
376 of IPC, the maximum sentence that could be
imposed as on the date of the incident was
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rigorous imprisonment for a term which shall not
be less than 10 years but it might extend upto life
and fine. For the offence punishable under Section
4 of the POCSO Act, the minimum sentence was 7
years imprisonment extendable upto life and fine.
That means there was no scope for imposing
imprisonment till death.
5.1. The amendment was brought to IPC on
21.04.2018 omitting clause(i) from sub-section(2)
of Section 376 of IPC. The amendment to POCSO
Act was brought with effect from 16.08.2019. The
amended provisions should not have been followed
by the trial court while fixing the quantum of
sentence and therefore the sentence should have
been imposed in accordance with law applicable as
on the date of the incident.
5.2. His second submission was that the
accused has been in custody for the last 6½ years.
His present age is 35 years. Except this incident,
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the accused had not been involved in any other
criminal case. In the background of these facts
and circumstances, a term sentence may be
awarded so that the accused can be set free after
he completes the term sentence.
6. Sri Vijayakumar Majage, learned SPP-II
for the respondent-State submits that a tender
aged 9 year old girl was subjected to sexual abuse
by the accused when the girl was cycling in front
of her house. Life of a innocent girl was ravished
by the accused. Moreover the accused was a
married man with two children. He does not
deserve sympathy. The trial court has adequately
punished him and this cannot be modified.
7. It is true that the evidence discloses that
the accused ravished the life of a minor girl to
gratify his sexual desire. He is a married man
having two children. He made use of the
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opportunity when his wife and children had gone
out of town.
8. We completely agree with the findings
recorded by the trial court. After going through the
entire evidence, there is no scope for this court to
interfere with the findings of the trial court in
relation to offence punishable under Section 376 of
IPC read with Section 3 read with Section 4 of
POCSO Act. However, what we notice is that, the
trial court framed charge for the offence
punishable under Section 366 of IPC. For this
offence, there are no ingredients. To frame a
charge for the offence under Section 366 of IPC,
the facts and circumstances must disclose the
existence of ingredients of the definition of the
word 'kidnapping'. The accused took the girl to his
house, which was situated in the same compound
of the MEG quarters. Moreover after the incident,
he let the girl free to go to her house. In this
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view, the trial court should not have framed the
charge for the offence punishable under Section
366 of IPC and convicted him for the same. We
may also state that since the accused was charged
for the offence punishable under Section 366 of
IPC read with Section 3 read with Section 4 of
POCSO Act, it was not necessary to charge the
accused for the offence punishable under Section
354A of IPC and Section 7(m) (it should be 9(m))
read with Section 8 of POCSO Act. Therefore to
this extent the judgment of the trial court may be
modified.
9. However, with regard to conviction for the
offence under Section 376 of IPC read with Section 3
read with Section 4 of POCSO Act, we state that the
evidence discloses commission of the said offence
and the conviction cannot be set-aside.
10. Since it was argued that the trial court
did not apply the law which was applicable on the
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date of incident for imposing sentence, this aspect
has to be examined. Section 376 of IPC was
amended by Act No.13 of 2013 which was given
into effect from 25.12.1983. Before this
amendment, clause(f) of sub-section(2) of Section
376 provided for punishing an offender committing
rape on a woman under 12 years of age with
rigorous imprisonment which should not be less
than 10 years but which could be extended for life
and with fine. By virtue of the amendment,
clause(i) was introduced in sub-section(2) of
Section 376 which provided for punishment for
rape on a woman under 16 years of age. The
punishment prescribed was rigorous imprisonment
for a minimum period of 10 years and which could
also be extended till life. It was made clear that
imprisonment of life meant that it was for the
remainder of the person's natural life. Clause(i)
was omitted with effect from 21.04.2018 by
amendment Act No.22 of 2018. That means on the
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date of incident in the present case, clause(i) was
in force. Looked in this view, it can be stated that
the trial court applied the law correctly for
sentencing the accused to life imprisonment for
the remainder of his life. For this reason we don't
accept the argument of the appellant's counsel.
11. However, we have come across the
judgment of the Supreme Court in the case of
STATE OF RAJASTHAN V. GAUTAM
[CRL.A.NO.3168/2023], where the facts
discloses that a 5 year old girl was subjected to
sexual abuse. The trial court imposed life
imprisonment making it clear that the
imprisonment was for the remainder of the natural
life of the accused and on his appeal to the High
Court, sentence was reduced to rigorous
imprisonment for 12 years. Ultimately the
Supreme Court having discussed the facts and
circumstances, came to conclusion to impose a
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term imprisonment for a period of 14 years without
remission. In this case too, the age of the accused
as on the date of incident was 29 years. His
present age is 35 years. Except this case, he is
not involved in any other case. Already he has
spent imprisonment of 6½ years. Therefore we
find that there is a case for modifying the sentence
with regard to imprisonment.
12. With this discussion, we pass the
following:
ORDER
The appeal is partly allowed.
The judgment dated 27.02.2018
passed by the LIII Additional City Civil and
Sessions Judge, Bengaluru in
Spl.C.C.No.512/2017 is modified.
Order of conviction of the appellant/
accused for the offence punishable under
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Section 366 of IPC is set-aside. He is
acquitted of the said offence.
For the offence punishable under
Section 376 of IPC read with Section 3
read with Section 4 of POCSO Act, the
accused is directed to serve rigorous
imprisonment for a period of 14 years and
pay fine of Rs.20,000/-. In default to pay
fine, he shall undergo rigorous
imprisonment for a period of 1 year.
The accused is not entitled for
remission till he completes the
imprisonment for a period of 14 years.
The period already spent in jail is ordered
to be set-off.
The order with regard to payment of
compensation awarded by the trial court is
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maintained. The other part of the
judgment of the trial court is not altered.
Send back the trial court records with
a copy of this judgment, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
