The State Of Karnataka vs Amzad Pasha
2023 Latest Caselaw 1339 Kant

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                                                     CRL.A No.1534/2016




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                      DATED THIS THE 16TH DAY OF FEBRUARY, 2023
                                        PRESENT
                        THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                           AND
                         THE HON'BLE MR JUSTICE ANIL B KATTI
                         CRIMINAL APPEAL NO. 1534/2016 (A)
               BETWEEN:
               THE STATE OF KARNATAKA
               BY TUMAKURU CITY
               POLICE STATION
               REPRESENTED BY
               STATE PUBLIC PROSECUTOR
               HIGH COURT OF KARNATAKA
               BENGALURU - 572 101                         ... APPELLANT
               (BY SRI.K.NAGESHWARAPPA, HCGP)
               AND:
               1.    AMZAD PASHA
                     S/O MOHAMED HATHAULLA
                     AGED ABOUT 30 YEARS
                     R/AT 2ND CROSS, TIPPUNAGAR
                     TUMAKURU TOWN
Digitally            TUMAKURU DISTRICT - 572 101
signed by D
K BHASKAR      2.    CHAND PASHA
Location:            S/O ABHID SAB
High Court           AGED ABOUT 42 YEARS
of Karnataka
                     R/AT 2ND CROSS, TIPPUNAGARA
                     MELEKOTE ROAD, TUMKUR TOWN
                     TUMKUR DISTRICT                 ... RESPONDENTS
               (BY SRI.KARTHIK KUMAR K, ADVOCATE FOR R1;
                   R-2 SERVED)

                     THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) OF
               CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE
               JUDGEMENT AND ORDER DATED 03.10.2015 PASSED BY THE III
               ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU IN
               SPL.C.NO.432/2014,      THEREBY      ACQUITTING       THE
               ACCUSED/RESPONDENT FOR THE OFFENCE P/U/S 366(A),506,376
               OF IPC AND SEC. 4 OF POCSO ACT.
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                                                 CRL.A No.1534/2016




      THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

                               JUDGMENT

Challenging the order of acquittal passed by the III

Additional District and Sessions Court, Tumkur in SC

No.432/2014 the State has preferred the above appeal.

2. Respondent/accused was tried in SC No.432/2014

for the charges for the offences punishable under Sections

366A, 506, 376 IPC and under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 ('the POCSO Act' for

short) on the basis of the charge sheet filed by Tumkur Town

Police in Crime No.75/2014 of their police station. For the

purpose of convenience, the parties will be referred to

henceforth according to their ranks before the trial Court.

3. The case of the prosecution is as follows:

(i) That PW.2 the victim girl as on 25.05.2014 was

aged 15 years. PWs.1 and 3 are the father and mother of

PW.2. The accused was the close acquaint of PW.1. Between

19.05.2014 and 22.05.2014 PW.2 was admitted in district

hospital, Tumkur and she underwent Piles surgery on

20.05.2014. During that time, accused tried to develop

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intimacy with her. On noticing that her uncle admonished her.

When she revealed that, the accused inducing her of love and

marriage, kidnapped her from Tumkur on 22.05.2014 with an

intention to sexually abuse her. Then he took her to Darga

situated within the limits of Ozugunte village of Sira Town.

While staying there he committed penetrative sexual assault

on her. Then he took her to Gulbarga. PW.1 filed missing

complaint as per Ex.P1. PW.2 after one week informed her

father over phone.

(ii) On the basis of Ex.P1, PW.11 registered FIR in

Crime No.75/2014 as per Ex.P11 against unknown persons.

On getting information from PW.2, PW.1 informed police.

Then they rescued PW.2 from Gulbarga. On recording her

statement, PW.11 included Section 366A, 376, 506 IPC and

Section 4 of the POCSO Act and the accused in the case. Then

he handed over further investigation to PW.12. PW.12 further

investigated the case and filed charge sheet.

4. The trial Court on hearing both side framed the

charges against the accused for the offences punishable under

Sections 366A, 506, 376 IPC and 4 of the POCSO Act. In

support of the case of the prosecution PWs.1 to 12 were

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examined and Exs.P1 to P11 and MOs.1 to 6 were marked. On

examination of the accused under Section 313 Cr.P.C, the

accused neither filed defence statement nor led defence

evidence.

5. The trial Court on hearing the parties by the

impugned judgment and order acquitted the accused on the

following grounds:

(i) The prosecution failed to prove that the victim was

below 18 years;

(ii) The material witnesses PWs.4 to 6 have not

supported the prosecution case;

(iii) PWs.1 and 3 are not the eyewitnesses and they

are only hearsay witnesses;

(iv) The evidence of PW.2 is not free from blemish as

the same has material contradictions and inconsistencies with

regard to place of kidnapping, manner of kidnapping etc.;

(v) The grandmother of the victim who allegedly

accompanied her in the hospital is not cited as a charge sheet

witness nor examined before the Court;

(vi) The case sheet of the victim regarding her

admission in the District Hospital, Tumkur is not produced;

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(vii) If at all the victim had undergone Piles surgery

and soon thereafter penetrative sexual assault was committed

on her, there should have been notable injuries on her private

part which is not found in the medical examination report

Ex.P3 or the evidence of PW.10;

(viii) The call details of the accused and the victim were

not collected;

(ix) There was inordinate delay in delivering the FIR to

the Court.

(x) In the light of such doubtful circumstances the

accused is entitled to the benefit of acquittal.

Submissions of Sri K.Nageshwarappa, learned HCGP:

6. PW.2 being the victim of the sexual offence is on

par with the injured eye witnesses. There was no explanation

to disbelieve her evidence. Minor contradictions and

inconsistencies could not have been blown out of proportion

by the trial Court. The trial Court was not justified in seeking

corroboration to the said evidence. The evidence of PW.2 was

corroborated by the medical evidence and the evidence of her

parents. There was no reason for PWs.1 to 3 to falsely

implicate the accused in the case. In the evidence of PWs.1 to

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3, 8, 11 and 12, the accused had not disputed the age of the

victim at all. Therefore the trial Court committed error in

holding that the age was not proved by the evidence of PWs.1

to 3 and 8. The initial burden of proving the charge was

discharged by the prosecution. In view of Sections 29 and 30

of the POCSO Act, the burden of reversing the presumption of

commission of offence was on the accused. He did not offer

any explanation at all either in his examination under Section

313 Cr.P.C or by filing defence statement or leading any

defence evidence. The trial Court acted very lightly in

acquitting the accused searching for such minor contradictions

and inconsistencies which has led to injustice.

Submissions of Sri Karthik Kumar.K, learned Counsel for the accused/respondent:

7. The initial burden of proving the charge was on

the prosecution. Even if the accused did not dispute the age

of the victim, the prosecution had the burden to prove that

the victim was aged 15 years. But her school record was not

produced in proof of her age. Ex.P8 the birth certificate did

not bear the name of the victim to relate the said document

to her. Therefore, the trial Court was justified in rejecting the

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said documents. The evidence of PWs.1 to 3 and the

statements of the victim under Section 164 Cr.PC and 161 of

Cr.PC i.e., Ex.P9 were not consistent with regard to the place

of commission of kidnapping and the place of tracing the

accused. The prosecution had the obligation to prove that the

victim was in district hospital, Tumkur and from there she was

enticed on inducement. But the prosecution did not produce

any material in proof of her admission into the said hospital.

Therefore genesis of the case itself was not proved. Under

such circumstances the evidence of PW.2 needed

corroboration. The driver of the auto in which she was

allegedly kidnapped was not examined. Except PWs.1 to 3, no

other evidence regarding kidnapping and keeping her hostage

in Darga at Sira and Gulbarga were examined. Therefore, the

trial Court was right in holding that the charges were not

proved beyond reasonable doubt.

8. Having regard to the submissions of both side and

on examining the material on record, the question that arises

for consideration is "whether the impugned judgment and

order of acquittal suffers glaring illegality leading to

injustice?".

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Reg: Age of victim:

9. The case involved the offences under Sections

366, 376, 506 IPC and Section 4 of POCSO Act. It is true that

to invoke the provision of Section 4 of the POCSO Act, the

victim shall be aged below 18 years. The prosecution has to

prove that the victim was aged 15 years as contended by it.

10. PW.1 deposed that in 2014 his daughter PW.2 was

aged 14 years. PW.2's evidence was recorded on 05.02.2015

and she states that her age as on the date was 16 years. In

the cross-examination of these two witnesses there was no

single suggestion denying their statements regarding her age

nor it was suggested that she aged above 18 years. Even in

the evidence of PW.3 the mother, it was not suggested that

PW.2 was aged above 18 years. Similarly, in the evidence of

PWs.10 and 11 the police officers who registered the FIR and

filed charge sheet there was no denial of the age of the

victim. PW.10 has also recorded the age of PW.2 in Ex.P3

examination report of PW.2 as 15 years. The only suggestion

to her is that she has recorded that age as per the statement

of PW.2. It is not even suggested that the victim girl had

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given false age. Moreover such suggestion was not made to

PW.2 herself.

11. The birth certificate Ex.P8 was disbelieved by the

trial Court on the ground that, it does not bear the name of

the child. However, that bears the names of PWs.1 and 3 as

parents. Ex.P8 shows that the registration of the birth was

made on 03.02.1999. That was within one month of the birth

of the child. At that time it was not foreseen that such a case

comes up with regard to PW.2. The said document was

corroborated by the unquestioned evidence of PWs.1 to 3

regarding to the age of the victim. Therefore the finding of the

trial Court that the prosecution failed to prove that the victim

was aged 15 years is erroneous and contrary to the evidence

on record.

Reg: proof of charges of kidnapping and sexual assault:

12. It is no doubt true that the investigating officer did

not collect the case sheet or the discharge summary from the

district hospital, Tumkur, to substantiate that, during the

relevant period she was admitted in that hospital and she was

kidnapped from that place. It is not disputed that PWs.1 to 3

are residents of Tumkur. It was also not disputed that the

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missing complaint as per Ex.P1 was filed on 23.05.2014. In

Ex.P1, PW.1 had not implicated the accused. If he had any ill

will, certainly he could have implicated him in Ex.P1 itself.

13. The evidence of PWs.1 and 3 that PW.2 went

missing from Tumkur is not disputed. Whether that was from

hospital or from their house is secondary. Further the

evidence of PWs.1 and 3 shows that the victim went missing

from 22.05.2014 onwards. As per the evidence of PW.1 after

seven days of her missing, she called him over phone and

informed him about she being in Gulbarga. Then he informed

the police, then himself and police went to Gulbarga and

found PW.2 in Hazarath Shah Mohamed Shah Khadri Darga

and took her back to Tumkur police station.

14. PW.2 deposes that when her uncle admonished

her for talking to the accused in the hospital she felt sad and

revealed that to the accused, he lured her that he will marry

her and takes care of her. He took her in an auto-rickshaw

and from there they went to Sira in Bus. He lodged her in

room at Darga in Sira and that day he committed penetrative

sexual assault on her and threatened her of life. Thereafter he

took her to some other places. Finally he took her to

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Gulbarga. She further deposed that when the accused had

gone to City leaving her in Darga, with the help of some

nearby person, she phoned her father and informed him. Next

day police and her father came to Gulbarga took her back to

Tumkur. She deposed that, thereafter police got her

examined through doctor and got her statement recorded

through the Magistrate etc.,

15. PW.3 the mother of PW.2 states that PW.2 went

missing on 22.05.2014 from the hospital, on 28.05.2014 on

learning her whereabouts her husband went to Gulbarga

along with the police and brought her back. In the cross-

examination of these witnesses, the girl's missing away for

about a week is not disputed. In the cross examination of

PWs.1 to 3 the theory of any other person taking PW.2 away

from her guardians or she herself leaving home and going

somewhere else was not suggested. Though it is suggested to

PW.1 that he had some ill will against the accused regarding

Jamath dispute, but the same theory was not suggested to

PW.2. Another theory of PW.2's uncle having ill will against

the accused was suggested which was denied. In the cross-

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examination of PW.3 absolutely there was no suggestion of

any cause for false implication of the accused.

16. PW.10 the doctor who examined PW.2 is the

independent witness, she deposes that on 29.05.2014 at 8.30

p.m. on the requisition of police she examined PW.2. She also

deposed that PW.2 was reported before her with a history of

sexual abuse. As per the history recorded in Ex.P3 the victim

was taken by the accused (who was married and having one

kid) on 22.05.2014 with a promise of marriage. As per the

history, they went to Sira and stayed there for one week and

during that period sexually cohabitated with each other. The

history also records about the victim undergoing Piles surgery

in Tumkur hospital.

17. Ex.P3 and the evidence of PW.10 show that the

victim was examined soon after she was traced. Therefore

there was no chance for any manipulation by that time. The

medical examination report also revealed that hymen of the

victim was ruptured and indicated that she was subjected to

sexual intercourse. In the cross-examination of PW.10

absolutely nothing was suggested about the finding that the

victim was subjected to sexual intercourse. Thereby the

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evidence of PW.1 stood corroborated by the evidence of

PW.10 and the evidence of her parents PWs.1 and 3.

18. Sofar as injuries not being found consequent to

sexual assault on a girl who had undergone piles surgery,

firstly she was examined after about 10 days of the incident.

As per the history in Ex.P3 and evidence of PW.10 it was case

of eloping. Therefore contention of victim suffering injuries or

traces of the same during her medical examination deserves

no merit.

19. Now it is a settled law that the victim of sexual

abuse stands on par with a injured eye witness. The evidence

of such witnesses does not need corroboration, if same is

found acceptable. The larger bench of the Hon'ble Supreme

Court in Ganesan vs. State1 referring to catena of its earlier

judgments has held that the rapist degrades the very soul of

the helpless female and, therefore, the testimony of the

prosecutrix must be appreciated in the background of the

entire case and in such cases, non-examination even of other

witnesses may not be a serious infirmity in the prosecution

case, particularly where the witnesses had not seen the

AIR 2020 SC 5019

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commission of the offence. Thus the law that emerges on the

issue is to the effect that the statement of the prosecutrix, if

found to be worthy of credence and reliable, requires no

corroboration. The court may convict the accused on the sole

testimony of the prosecutrix. As long back as in the year

1996, the Hon'ble Supreme Court in the judgment of State of

Punjab Vs Gurmit Singh2 has held that it is the duty of the

Court to deal with the cases involving sexual molestation with

utmost sensitivity. It has further held that the minor

contradictions or insignificant discrepancies in the statement

of prosecutrix could not be a ground for throwing out an

otherwise reliable prosecution case. It was further held that

accused can be held guilty on sole testimony of the

prosecutrix, unless there are compelling reasons for seeking

corroboration. Her evidence is more reliable than that of an

injured witness. By the evidence of PWs.1 to 3 and 10, the

initial burden of proving the fact that the minor victim was

kidnapped from the custody of her parents and she was

subjected to sexual abuse was discharged. Then Sections 29

and 30 of the POCSO Act come into operation.

(1996)2 SCC 384

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20. Section 29 of the POCSO Act confers the

mandatory presumption that when a person is prosecuted for

the commission of offences under Sections, 3, 5,7 and 9

unless the contrary is proved, he has committed such

offences. Section 30 of the POCSO Act confers the

presumption of existence of culpable mental state on the

accused in committing such offence. On discharging of initial

burden of proving the basic fact, the accused had the reverse

burden of disproving the said facts. The accused in this case

had not only suggested anything to PWs.2 and 10 about the

evidence that victim is subjected to sexual abuse, he did not

even explain in his statement under Section 313 Cr.PC nor

filed any written statement or led any defence evidence.

21. The trial Court failed to notice the effect of

Sections 29 and 30 of the POCSO Act and failed to appreciate

the evidence on record in a proper perspective. The trial Court

acted contrary to the evidence on record, sections 29 and 30

of the POCSO Act and judgment of Hon'ble Supreme Court in

Gurmit Singh's case referred to supra, in attaching undue

significance to the inconsistencies with regard to place from

where the victim was kidnapped and regarding non production

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of the case sheet of Tumkur district hospital. That has led to

miscarriage of justice.

22. The evidence on record discloses that the accused

was well acquainted with the mother of the victim. Taking

advantage of that, though he was already married and had a

child and was more than 12 years older to PW.2, the accused

made drama of sympathizing PW.2 a child, manipulated her

mental state and kidnapped her from the custody of her

parents to appease his lust. Thereby he betrayed the trust

reposed by PW.1 on him. The trial Court missed the said

point. Therefore, the impugned judgment and order of

acquittal is illegal and liable to be set aside.

23. However, Section 366A IPC speaks of kidnapping

the girl for the purpose of forcing her for illicit intercourse with

another person. Therefore Section 366 IPC applies. The

accused is liable to be convicted for the offences punishable

under Sections 366, 506, 376 IPC and Section 4 of the POCSO

Act. Hence the following:

ORDER

The appeal is partly allowed.

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The impugned judgment and order of acquittal is set

aside.

The respondent/accused is convicted for the offences

punishable under Sections 366, 506, 376 IPC and Section 4 of

the POCSO Act.

Learned Counsel for the respondent shall keep the

accused present before this court on next hearing date to

hear on sentence.

List on 23.02.2023.

Sd/-

JUDGE

Sd/-

JUDGE PKN