Karnataka High Court
State Of Karnataka vs Vakantesh Alias Venkappa S/O. ... on 18 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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CRL.A No. 100492 of 2021
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
BENCH
DATED THIS THE 18TH DAY OF DECEMBER 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO. 100492 OF 2021 (A)
BETWEEN:
STATE OF KARNATAKA,
R/BY INSPECTOR OF POLICE,
BALLARI WOMEN POLICE STATION,
DIST. BALLARI, THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI. PRAVEEN DEVARADDIYAVAR, HCGP)
Digitally AND:
signed by
SUJATA
SUBHASH
PAMMAR 1. VENKATESH @ VENKAPPA
S/O HULUGAPPA,
AGE. 30 YEARS,
OCC. LABOUR,
R/O. VINAYAKA NAGAR,
DIST. BALLARI.
2. J. SREERAMALU
S/O. ERANNA,
AGE. 38 YEARS,
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CRL.A No. 100492 of 2021
R/O. INFRONT OF SELECT
FUNCTION HALL BESIDE ICE FACTORY,
COWL BAZAR,
MAIN ROAD,
BALLARI,
DIST. BALLARI.
... RESPONDENTS
(BY SRI. ANWAR BASHA B., ADVOCATE FOR R1;
MISS. SONU SUHEL, AMICUS CURIAE FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) AND (3) OF
THE CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 01.12.2020
PASSED BY THE IST ADDITIONAL DISTRICT AND SESSIONS
SPECIAL JUDGE BALLARI, IN SPL.CASE NO.684/2018 DATED
01.12.2020 AND TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL PASSED BY THE TRIAL COURT IN SPL.CASE
NO.684/2018 DATED 01.12.2020 PASSED BY THE IST
ADDITIONAL DISTRICT AND SPL.JUDGE BALLARI FOR THE
OFFENCE PUNISHABLE IN SO FAR ITS RELATES TO ACQUITTAL
OF RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
U/S 354A AND 354B OF IPC AND U/S 8 AND 10 OF POCSO ACT
AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE
OFFENCES PUNISHABLE U/S 354A AND 354B OF IPC AND U/S
8 AND 10 OF POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07/09/2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No. 100492 of 2021
JUDGMENT
The appeal is filed by the State of Karnataka calling in
question the judgment of acquittal passed in Special Case
No.684/2018 dated 01.12.2020 by the Court of I
Additional District and Special Judge, Ballari, (for short,
hereinafter referred to as 'the POCSO Court').
2. Brief facts of the case are that, it is the case of
the prosecution that on 20.02.2018 at 8.40 p.m. the
daughter of the complainant (victim) while playing in front
of their house which is located in front of Select Function
Hall, Cowl Bazaar, Main Road, Ballary at that time, the
accused in order to outrage modesty, called her, pulled
her and also removed zip of her backside cloth and the
accused indecently behaved with an intention to commit
sexual assault on the victim. Therefore, the first
information statement was lodged before the police and
offences punishable under Sections 354A and 354B of the
Indian Penal Code and under Sections 8 and 10 of the
POCSO Act are foisted against the accused.
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3. Upon filing charge sheet, the POCSO Court has
framed charges against the accused for the offences under
Sections 354A and 354B of the Indian Penal Code and
under Sections 8 and 10 of the POCSO Act. The
prosecution has got examined PW.1 to 10 and got marked
documents and material objects. When the accused has
examined under Section 313 Cr.P.C., he denied the
prosecution case as false, pleaded not guilty and the
accused has not let in any defence evidence both oral and
documentary.
4. After full fledged trial, the POCSO Court has
acquitted the accused for the offences foisted against him
as above stated. Therefore, the State has preferred the
appeal. The learned HCGP submitted that there is cogent
evidence available from the victim, father, mother and
grandmother of the victim that the accused has committed
offences alleged but disbelieving their evidence is not
correct, as contrary to law and evidence produced before
the Court. Therefore, submitted the approach of the
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POCSO Court is perverse and illegal. Hence, prays to
reverse the judgment of acquittal and convict the accused
for the offence charge levelled against him.
5. The accused is represented by the counsel and
he submitted that the trial Court has rightly appreciated
the evidence on record, as there is no cogent evidence
revealed to convict the accused. Therefore, justified the
judgment of acquittal. Further submitted that from the
prosecution witnesses there are full of contradictions,
omissions and embellishments going to the core of the
prosecution case rendering prosecution witnesses are
unbelievable. Therefore, submitted the innocence of the
accused is proved upon appreciating the evidence on
record. Hence, prays to dismiss the appeal.
6. As per Section 40 of the POCSO Act, the victim
is entitled for free legal assistance and when upon
enquiring respondent No.2-complainant present on
10.08.2023, he submitted that he has no means to engage
advocate on his behalf. Therefore, a legal counsel is
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appointed by name Kumari. N. Sonu Suhel as a counsel
appearing for respondent No.2-complainant and also to
assist the Court. Accordingly, learned counsel Amicus
curiae-Kumari. N. Sonu Suhel argued on behalf of the
complainant and submitted that the POCSO Court
committed error in appreciating the evidence on record
and hence, contrary to the evidence on record, the POCSO
Court has acquitted the accused. Therefore, supported the
appeal filed by the State and prayed for conviction of the
accused.
7. Upon hearing the respective counsels and
perusing evidence on record, the point would raise for my
consideration is as follows:
i) Whether the prosecution is able to prove that
on 20.02.2023 at 8.40 p.m. when the victim
was standing in front of their house which is
located in front of Select Function Hall, Cowl
Bazzar, Main Road, Ballari, the accused
having intention of outraging modesty called
the victim and hold her and also removed zip
of her back side cloth and thus, behaved
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indecently, thus, the accused has committed
offences punishable under Sections 354A and
354B of the Indian Penal Code and under
Sections 8 and 10 of the POCSO Act?
ANALYSES
8. The prosecution has examined total 10
witnesses as PW.1 to 10. PW.1 is the father of victim who
has lodged first information statement to the police as per
Ex.P.1; PW.2 is the mother of the victim; PW.3 is the
victim (minor child); PW.4 is a grandmother of the victim
(minor child); PW.5 is the nephew of PW.1. PW.6 is a Pani
Puri vendor vicinity to the house of PWs.1 and 2. PW.7 is
the doctor who has given the medical report. PW.8 is the
panch witness. PW.9 is the WPSI who has registered the
crime. PW.10 is the CPI-investigating officer who has filed
charge sheet.
9. The POCSO Court has assigned the following
reasons for acquittal of the accused:
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i) The POCSO Court has acquitted the accused
on the reason that PWs.1 to 5 are interested
witnesses. Hence, they are not to be
believed. Further the POCSO Court opined
that PWs.1, 2 and 4 to 6 have not witnessed
personally the incident. Hence, they are
disbelieved. It is opined that no independent
witnesses have been examined who has seen
the incident.
ii) PW.10-investigating officer has not collected
any of the documents to show that the
complainant was residing in the house
located nearby Select Function Hall, Cowl
Bazzar, Main Road, Ballari. The question
herein where the alleged incident was taken
place is a busy area and there are many
houses situated, but the investigating office
has not collected statements from
neighbouring houses.
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iii) In the spot panchanama and spot sketch it
was not mentioned that PW.6 was selling
Pani Puri at the place of alleged incident.
iv) From the evidence of the Doctor-PW.7 no
injuries are found on the victim. There are no
marks of injury even if the accused squeezed
breast of the victim (minor girl). Finding fault
with the manner of statement given by the
victim under Section 164 (5) of Cr.P.C. that
the victim has not stated that the accused
put his hand upon her chest and has not put
single word that accused has put his hand in
her private part. The investigating officer has
not seized cloth worn by the victim at the
time of the incident.
10. Therefore, from the above stated reasons, the
POCSO Court has acquitted the accused for the alleged
offences.
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11. Now this Court is constrained to appreciate the
evidence of the prosecution once again in the back ground
of appreciation of the evidence done by the POCSO Court.
The POCSO Court has gone to appreciate the evidence on
record too technically without appreciating the evidence on
record in correct and true perspective manner and in a
natural course of events what would have been occurred.
In these types of cases, it cannot be expected eye-
witnesses. The POCSO Court has expected eye-witness to
the incident. This is completely erroneous, perverse and
inhuman approach by the POCSO Court. The evidence in
these type of cases are to be considered on all the
circumstance in order to ascertain and to get impression
what would have been occurred to the victim from the
evidence produced by the prosecution before the Court.
Hyper technical reasons are not permissible. Just find fault
with prosecution witnesses that what is done by the
POCSO Court. Appreciation of evidence, "beyond
reasonable doubt" does not mean that adopting too much
technicality in appreciating the evidence, rendering the
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whole prosecution case as unbelievable. Beyond
reasonable doubt means, the prosecution is required to
place evidence at higher degree of preponderance of
probabilities compared to what is degree of preponderance
of probability in civil cases. The "theory of beyond
reasonable doubt" means expecting higher degree of
preponderance of probabilities and the natural conduct of
human beings. On these principles of law, the evidence on
record is to be appreciated. PW.1 is the father of the
victim (minor child). He has stated regarding other
witnesses i.e. wife, mother-in-law, nephew that on the day
of incident on 20.02.2018 when all were in the house, the
victim was playing out side of the house at night 8.30 p.m.
the victim by weeping came inside the house and stated
that a person had approached her and touched on the
chest and private part and immediately, he along with
other witnesses who were in the house have come out
from the house and searched and the victim had identified
the said persons. Therefore, the gathered people therein
have assaulted accused and he was taken to the police
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station and lodged complaint as per Ex.P.1. PW.1 has
identified the accused that he was the person who was
caught by the public at the place of incident. While
considering cross examination, the thing is revealed that
so as to disbelieve evidence of PW.1, just because in
course of cross examination he has not seen victim playing
out side of the house and does not know the name of the
accused is not a ground to suspect the evidence of PW.1.
The evidence of PW.1 is found to be in a natural course of
way regarding the incident.
12. PW.2 is the wife of PW.1 and mother of the
victim. She has stated that on 20.02.2018 her husband
and daughter, her mother-in-law and brother were in the
house and at that time, the victim was playing out side of
the house and at night 8.30 p.m., the victim came inside
the house by weeping and stated the incident that a
person has touched her chest and private part and
outraged modesty and immediately, all members came out
from the house and saw the person who has been
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identified by the minor victim and taken him to the police
station and her husband-PW.1 has given complaint before
the police. Further stated that a doctor has examined the
victim in the hospital and also stated that police have
conducted spot panchanama as per place shown by her
daughter-victim. Upon considering her cross examination,
nothing is revealed to disbelieve the evidence of PW.2.
Just because PW.2 has deposed that she does not know
whether the victim has shown the accused that does not
discredit the evidence of PW.2. Therefore, evidence of
PW.2 is found to be believable.
13. The evidence of PW.1 and PW.2 are found to be
relevant and admissible as per Section 6 of the Indian
Evidence Act, 1872 of principle of Res gestae.
14. PW.3 is the victim minor child of aged 8 years.
The POCSO Court has tested her whether she is competent
to give evidence before the Court with regard to the
alleged incident stated to have been happened on her.
Upon considering the evidence of PW.3-minor child, her
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evidence is found to be in a natural course. PW.3 was
studying 4th standard as on the date of the incident. She
has stated the relationship of PWs.1, 2 and other
witnesses. It is deposed that on 20.02.2018 at night she
was playing in front of her house and a person had
approached her and asked by showing the house
belonging to whom and he approached victim and the said
person had outraged of her modesty by putting hands on
her chest and private parts. Then PW.3 pushed him and
went inside the house with crying and narrated the
incident to his uncle and parents. Thereafter, PWs.1, 2
and others have came out from the house and shown the
said person and identified the accused and he was caught
hold and handed over to the police. She has deposed that
she has given statement before the learned Magistrate as
per Ex.P.4. PW.3 had identified the accused that he has
committed alleged offence on her. Upon considering the
cross-examination the thing is revealed that PW.3 was not
telling lie before the Court. Whatever, omissions tried to
elicit from PW.3 are minor discrepancies not affecting the
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core of prosecution case. Therefore, the evidence of PW.3
is found to be believable and trust worthy.
15. PW.4 is the grandmother of PW.3 and mother of
PW.2 and mother-in-law of PW.1. She has narrated what
PWs.1, 2, and 3 have stated. Upon considering cross-
examination, her evidence is not found to be untruth and
her evidence is found to be relevant and admissible as per
Section 6 of the Indian Evidence Act, 1872, Res gestae.
PW.5 is the nephew of PW.1. PW.5 has narrated the
incident what PWs.1, 2, 3 and 4 have stated. From the
evidence of PW.5, it is proved that the accused has
outraged modesty of the minor child and upon considering
cross-examination nothing is revealed to discredit the
evidence of PW.5. Therefore, the evidence of PW.5 is also
found to be relevant and admissible as per Section 6 of
the Indian Evidence Act, 1872, Res gestae.
16. Therefore, upon analyzing and considering the
evidence above discussed, it is proved that the accused
has committed offences alleged. PW.3-minor girl has
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identified the accused and the evidence of PWs.1, 2, 4 and
5 are found to be in natural course and it is convincingly
proved that the accused has committed offences alleged.
But the POCSO Court has committed gross error in
disbelieving this evidence on the ground that they are
interested witnesses. In these types of cases, the
witnesses available are parents and relatives and minor
victim. The POCSO Court wanted independent witnesses
and eye-witnesses which is highly impossible. What is
impossible the same is expected by the POCSO Court
rendering unjustifiable judgment of acquittal. Therefore,
for these reasons, when the evidence of PWs.1 to 5 above
discussed are found to be trust worthy and believable.
Then the prosecution is able to prove the guilt of the
accused by the above stated witnesses. Hence, in this
regard, the judgment of the POCSO Court acquitting the
accused is liable to be set aside.
17. Further upon considering the evidence of PW.6
is a Pani Puri street vendor and had stated that on
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20.02.2018 at night 8.30 p.m. there was nuisance in
vicinity of his mobile shop and stated that the accused was
caught hold and he was informed that the accused has
committed alleged offence. In the cross-examination, it is
revealed that PW.6 does not know Kannada Language that
does not mean that the evidence of PW.6 is the false one.
Therefore, from the evidence of PW.6 a circumstance that
the accused was caught hold with the offences of
outraging modesty of the minor child. Therefore, the
evidence of PW.6 is also found to be relevant in proving
the prosecution case.
18. PW.7 is the doctor who has medically examined
PW.3-minor child. She has stated that the victim was
brought to the hospital with history of sexual assault on
her and she has examined and did not found any injury,
marks on the victim child. Accordingly, she has given
report as per Ex.P.3. In the cross-examination she has
stated that she did not found injury, marks on the body of
the chest part of the victim child. But just because the
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injuries were absent that does not mean that offence has
not been committed. The POCSO Court has committed
serious error in rejecting this evidence on the reason that
there are no visible injuries found on the chest part of the
victim, when the chest part of the victim was squeezed.
This observation and finding of the POCSO Court is
palpably erroneous. When it is alleged that the accused
had squeezed the chest part of the victim there could not
be occurrence of injuries. The accused might have touched
chest part of the victim and back portion of the victim or
might have lightly squeezed, then there could not be
chances of occurring injuries. Finding fault with this
absence of injuries is nothing but the POCSO Court judge
is not sensitive in appreciating the evidence on record.
Expecting injury in these types of offences of outraging
modesty is completely unwarranted and shocks conscience
of the Court. It is not possible for the victim and other
witnesses above discussed to say how degree of force is
used on victim it cannot be measured. But in appreciating
evidence, the POCSO Court is deciding degree of force
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applied on the minor victim child, it is completely absurd
on the part of the POCSO Court judge. Therefore, in this
regard the observations and findings made by the POCSO
Court are completely erroneous and liable to set aside.
The evidence of PW.3-victim is corroborated by this
witnesses regarding she has suffered of sexual assault and
has taken her to the hospital for medial examination.
19. PW.8 is the panchnama witness of place of
incident. PW.9 is the Woman Police Sub-Inspector and she
has stated that on 20.02.2018 at night 9.45 p.m. when
she was in the police station has received written
complaint as per Ex.P.1 and accordingly, registered first
information report and the victim was forwarded for
medical examination. During course of cross-examination
of these witnesses, nothing is revealed to disbelieve these
witnesses and they have deposed what they have
performed their part in the course of investigation is found
to be a natural one.
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20. PW.10 is the investigating officer, who has
conducted investigation after taking over the file from
PW.9. PW.10-investigating officer has narrated sequence
of events in investigation. After completion of
investigation, he has filed charge sheet. Upon analyzing
the evidence of PW.10 of which cross-examination is not
found to be any unnatural in the course of investigation. In
what way the investigation has been done, the same is
reflected as a genuine investigation and accordingly, filed
charge sheet against the accused for the alleged offences
above stated.
21. From all the above cited reasons, the
prosecution is able to prove the guilt of the accused
beyond all reasonable doubt. The POCSO Court while
acquitting the accused has assigned flimsy reasons and
has committed serious error in appreciating the evidence
on record. Upon reading the reasons for acquittal in the
judgment, the POCSO Court judge is highly insensible and
in a casual way has appreciated the evidence on record.
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The POCSO Court judge is found to be highly insensible in
dealing with these types of cases. From the judgment of
the POCSO Court, it is revealed that the POCSO Court
judge has expected all the technicalities in appreciating
the evidence on record by adopting much technicality in
appreciating the evidence without understanding and
getting impression in the mind what must have been
happened in the case. Therefore, appreciation by the
POCSO Court judge is highly unreasonable, shocks
conscience of this Court. The POCSO Court judge has not
understood properly what is meaning of the theory beyond
reasonable doubt in appreciating the evidence in these
types of cases. Appreciating evidence on the theory
beyond reasonable doubt is not expecting 100%
preponderance of probabilities. What is the theory beyond
reasonable doubt means requiring high degree of
probability. It is the natural phenomena to occur of minor
discrepancies that cannot be exaggerated in reasoning, in
acquitting culprit. Whatever may be the minor
discrepancies, the Court has to assess whether they are
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affecting core of the prosecution case rendering witnesses
unbelievable or not. This vision has been lost sight by the
POCSO Court judge. The appreciation of the evidence does
not mean that finding fault with the prosecution case with
an intention to search fault in the prosecution case. The
appreciation of evidence means as per Section 3 of the
Indian Evidence Act, 1872 upon considering, analyzing and
appreciating the evidence on record, what normally would
get impression regarding occurrence of incident whether
there is any truth revealed or not and assessing the
evidence what would have been happened on all its
probabilities of high degree is the method of appreciation
of evidence produced before the Court. Finding fault with
prosecution witness at every line and adopted too
technicality is nothing but travesty of justice that what is
done by the POCSO Court judge in the present case.
Therefore, from the evidence analyzed and appreciated as
discussed the judgment of acquittal made by the POCSO
Court is highly and seriously erroneous, shocking
conscience of the Court and the POCSO Court judge is
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found to be highly insensible way lacking professionalism
in appreciating the evidence on record. Therefore, the
POCSO Court judge who has delivered the judgment
requires some training in the Karnataka Judicial Academy
on handling these types of cases. Therefore, the Court is
hereby recommending making the POCSO Court judge
who delivered the judgment to undergo training in the
Karnataka Judicial Academy.
22. The victim-PW.3 has given statement before
the learned Judicial Magistrate First Class under Section
164(5) of the Cr.P.C. and also under Section 25 of the
POCSO Act as per Ex.P.4. Ex.P.4-statement is proved to
be relevant and admissible that the victim has given
statement before the learned Magistrate. PWs.9 and 10-
Investigating Officers have deposed that PW.3-victim has
given statement before the learned Magistrate. PW.2 has
also stated that the victim has given statement before the
learned Magistrate. Therefore, the statement recorded as
per Ex.P.4 of the victim by the learned Magistrate is
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proved to be relevant, admissible and proved the fact that
the accused has committed offences alleged.
23. The offences charged against the accused are
under Sections 8 and 10 of the POCSO Court and under
sections 354A and 354B of the IPC.
24. Section 8 is a provision for punishment for
sexual assault. Section 7 is a definition of sexual assault.
Section 7 reads as follows:
"7. Sexual Assault.- "Whoever, with sexual
intent, touches the vagina, penis, anus or breast of the
child 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."
25. In the present case, the accusation against the
accused is that with sexual intent touched private part and
breast of the child involving physical contact without
penetration. Therefore, as per definition of Section 7, the
accused has committed offence of sexual assault under
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Section 7 of the POCSO Act and thus, is punishable under
Section 10 of the POCSO Act. Following are the ingredients
of sexual assault:
i) The accused has sexual intent to touch the
vagina, penis, anus or breast of the child.
ii) Makes the child touch the vagina, penis, anus
or breast of accused or any other person.
iii) Doing any other act with sexual intent.
iv) Involving physical contact without
penetration.
26. Therefore, considering the prosecution evidence
discussed above, it is proved that the accused has sexual
intention touched the private part and breast of the child
and also removed zip of back portion of the cloth of the
child. Therefore, the accused is liable to be convicted for
the offences under Section 7 R/w Section 8 of the POCSO
Act, 2012.
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27. Another charge levelled against the accused is
of the offence under Section 10 of the POCSO Act. Section
10 is a punishment clause for aggregated sexual assault as
defined under Section 9 of the POCSO Act. Section 9 of the
POCSO Act is as follows:
"9.Aggravated Sexual Assault.-xxxxxxx
(a) to (l) xxxxx
(m) whoever commits sexual assault on a child
below twelve years; or
(n) to (u) xxxxx
is said to commit aggravated sexual assault."
28. In the present case, the victim child was
studying 4th standard as per evidence. Ex.P.8 is the school
certificate in which victim was studying 3rd standard in the
academic year 2017-18 and her date of birth is
16.09.2009. The offences committed on 20.02.2018.
Therefore, as on the date of the commission of offence,
PW.3-child is 8 and ½ years old. Therefore, as per clause
(m) of Section 9 of the POCSO Act, the accused has
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committed offence of aggravated sexual assault. Whoever
commits sexual assault on child below 12 years of age is
amounting to commission of offence under Section 9 of
the POCSO Act, which is punishable as per Section 10 of
the POCSO Act.
29. From the evidence on record above discussed,
it is proved that the accused has committed offence of
aggravated sexual assault. Thus, he is liable to be
convicted for the offences punishable under Section 9 R/w
Section 10 of the POCSO Act.
30. Section 354A deals with sexual harassment and
punishment for sexual harassment. As per this provision, a
man committing act of physical contact and advances
involving and unwelcome and explicit sexual overtures is
said to have committed offence of sexual harassment. The
accused has touched private part and breast of the child.
Therefore, is proved to have committed offences under
Section 354A of the IPC.
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31. Section 354B deals with assault or use of
criminal force to woman with intent to disrobe. In the
present case, the accusation is proved against the accused
that by touching private part and breast of the child has
opened the zip of cloth of the child. This proves the
accused has assaulted with intention of disrobing the child.
Thus, it is proved that the accused has committed offence
under Section 354B of IPC.
32. Therefore, the accused has committed offences
punishable as above discussed and thus, the accused is
liable to be convicted for the offences under Section 7 R/w
Section 8 and under Section 9 R/w Section 10 of the
POCSO Act and under Sections 354A and 354B of IPC.
Therefore, the judgment of acquittal recorded by the
POCSO judge is liable to be set aside. Accordingly, the
accused is convicted for the charges levelled against him
as discussed above. Therefore, the appeal is liable to be
allowed.
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33. Kumari Sonu Suhel, amicus curiae, appearing
on behalf of the complainant has argued the matter in a
meritorious way and assisted the Court in a very well
manner. Accordingly, the Court places its appreciation on
record of valuable assistance made by the learned amicus
curiae, Kumari Sonu Suhel. The Secretary of High Court
Legal Services Committee is directed to pay professional
fees of Rs.5,000/- to the Kumari Sonu Suhel, amicus
curiae.
34. Hence, I proceed to pass the following:
ORDER
i) The criminal appeal filed by the State of
Karnataka is allowed.
ii) The judgment of acquittal passed in Special
Case No.684/2018, dated 01.12.2020, by
the learned I Additional District & Special
Judge, Ballari is hereby set aside.
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iii) The respondent/accused is convicted for
the offences under Section 7 R/w Section 8
and under Section 9 R/w Section 10 of the
POCSO Act and also under Section 354A
and 354B of IPC.
iv) To hear on sentence.
SD/-
JUDGE
SSP
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NC: 2023:KHC-D:14810
HSJ
19.12.2023
ORDER ON SENTENCE
Today the matter is set down for hearing on
sentence. The accused is produced before the Court by
Sri Ramesh Kulkarni, Police Inspector, Women Police
Station, Ballari, upon execution of non-bailable warrant.
2. Heard on sentence.
3. Learned counsel for the accused-Sri Anwar
Basha B., is present and submitted that leniency may be
shown while awarding sentence for the reason that the
accused is having wife and children and he is having
responsibility of looking after old age parents. Therefore,
prays to show leniency while awarding sentence.
4. Learned HCGP submitted that the accused has
committed heinous offence against the child who is below
age of 12 years old. Therefore, prays to award maximum
punishment as prescribed in the law.
5. The accused has committed alleged offence as
per the judgment of conviction which is found to be
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heinous offence. The victim was 8 and ½ years old child.
Against whom the accused committed heinous offence as
above stated. Therefore, if leniency is shown while
awarding sentence that would not deter the other culprits
in the society. Therefore, the accused is awarded adequate
sentence for the offence committed.
6. Therefore, following sentence is delivered.
7. The accused is sentenced to undergo 4 years
rigorous punishment for the offence punishable under
Section 8 of the POCSO Act and with fine of Rs.1,000/-.
8. The accused shall undergo rigorous punishment
for a period of 5 years for the offence punishable under
Section 10 of the POCSO Act with a fine of Rs.1,000/-.
9. The accused shall undergo rigorous
imprisonment for a period of three years for the offence
punishable under Section 354A of IPC.
10. The accused shall undergo rigorous
imprisonment for a period of three years for the offence
punishable under Section 354B of IPC.
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11. In default to pay the fine amount as stated, the
accused shall undergo another simple imprisonment for a
period of 3 months.
12. All the substantive sentences shall run
concurrently.
13. MO.1 is ordered to be destroyed.
14. The accused is entitled for set off as per Section
428 of Cr.P.C.
15. The District Legal Services Authority is directed
to pay compensation of Rs.5,00,000/- to PW.3-minor child
under the Karnataka Victim Compensation Scheme.
16. Learned counsel for respondent No.1/accused
filed application under Section 390 of Cr.P.C. and prayed
to admit him on bail.
17. The accused is convicted for the heinous
offence as above stated aggravated sexual assault is on
the child of 8 and ½ years old also it is the accusation that
the accused disrobed by opening zip of back side cloth of
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the child. Considering all these factors, the Court is of the
opinion not to admit the accused on bail. Therefore, the
learned counsel's submission on admitting the accused on
bail is hereby rejected.
18. The accused is awarded maximum punishment
of 5 years for the offence under Section 10 of the POCSO
Act.
19. Issue conviction warrant and remit to the
accused for suffering imprisonment as ordered.
20. Learned counsel for the accused is permitted to
take signature of the accused on vakalath.
21. Office is directed to furnish free copy of the
judgment of conviction and order of sentence to the
accused.
SD/-
JUDGE
SSP
