Tajoddin vs The State
2023 Latest Caselaw 1488 Kant

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                                                               CRL.A No.200082/2018




                        IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

                            DATED THIS THE 22ND DAY OF FEBRUARY, 2023

                                                BEFORE
                              THE HON'BLE MR JUSTICE V SRISHANANDA
                                  CRIMINAL APPEAL NO. 200082 OF 2018

                      BETWEEN:

                      TAJODDIN
                      S/O SADIQ HUSSAIN MULLA,
                      AGE:26 YEARS, OCC:PVT. SERVICE,
                      R/O VILLAGE FARHATABAD,
                      AT PRESENT KOODI DARGA,
                      DIST.KALABURAGI.

                                                                        ...APPELLANT
                      (BY SRI. VISHAL PRATAP SINGH., ADVOCATE)

                      AND:

                      THE STATE THROUGH ITS
                      JEWARGI POLICE STATION,
Digitally signed by   TQ.JEWARGI, DIST.KALABURAGI.
VARSHA N
RASALKAR              REP BY SPP. HC KARNATAKA KALABURGI, 585103
Location: High
Court of Karnataka                                                    ...RESPONDENT

                      (BY SRI.GURURAJ V. HASILKAR., HCGP)

                             THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
                      TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED              BY
                      THE    II   ADDL.   SESSIONS    JUDGE,    AT   KALABURAGI   IN
                      S.C.(POCSO) No.46/2015 DATED:20.04.2018 AND ACQUIT FOR
                      THE SAID      OFFENCES LEVELLED BY THE PROSECUTION AS
                      AGAINST THE APPELLANT/ACCUSED AND ETC.
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                                                    CRL.A No.200082/2018




     THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                                     JUDGMENT

1. This appeal is directed against the judgment of

conviction and order of sentence dated 20.04.2018 passed in

Special Case (POCSO) No.46/2015 by the learned II Additional

Sessions Judge, Kalaburagi and sentenced the

accused/appellant as under:

"Accused is sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.10,000/- for offence punishable U/Sec.4 of POCSO Act 2012 and in default to pay fine, he shall undergo simple imprisonment for six months.

Further, accused is sentenced to undergo simple imprisonment for six months for the offence punishable U/Sec.506 of Indian Penal Code and to pay fine of Rs.1,000/- (One thousand) and in default to pay fine, he shall undergo simple imprisonment for one month.

Both the sentences of imprisonment shall run Concurrently.

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The period of detention undergone by accused as an under trial prisoner during investigation,enquiry and trial shall be set off as provided U/Sec.428 of Cr.P.C.

The properties at M.O.1 and 2 being worthless are ordered to be destroyed.

The order regarding disposal of property shall come into operation on the lapse of appeal period and in the event of any appeal being period preferred, after its disposal.

Further acting U/Sec.33(8) of the POCSO Act, 2012, a direction is issued to pay Compensation of Rs.75,000/- (Rs. seventy five thousand only) to prosecutrix. Send a copy to DLSA to arrange for payment of compensation.

Furnish copy of Judgment to accused free of Cost.

Issue conviction warrant accordingly."

2. Heard Sri Vishal Pratap Singh, learned counsel for

the appellant and Sri Gururaj V. Hasilkar, learned High Court

Government Pleader for the respondent-State and perused the

records.

3. Brief facts of the case as per the charge sheet

materials reads as under:

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Victim girl, lodged a written complaint stating that she is

aged 12 years and residing at Kudi Darga and studying in 7th

Standard in Swami Vivekanand School, Kolkur. Her parents

run a hotel in Kudi Darga. Accused is running a Mobile

Telephone Accessory Shop besides Hospital in that village. The

complaint averments further reveals that accused used to eve-

tease her daily when she was going to school but, she kept

quiet for some time fearing her dignity and honour. When

accused persisted her in eve-teasing, she had no option to

inform her parents.

4. When the matter stood thus, on 10.01.2015 at

about 6.00 p.m., when the victim girl proceeded towards the

land of Akbar Gouda for attending her nature call, accused

followed her and pushed her on the ground and gagged her

mouth and removed her inner wear and had a forcible sexual

intercourse. He also threatened the victim girl that if she

informs the incident to anybody, he would take away her life

and after giving life threat, he ran away from there. Victim girl

returned to her home weeping and informed her parents about

the same. However, the parents did not report the incident to

anybody fearing the dignity and family prestige in the society.

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But they shifted her to her relatives house at Khadri Chowk,

Kalaburagi and the victim girl was made to stay there. Again,

on 21.01.2015 at about 10.00 a.m., when she was standing

near the house of her uncle at Kalaburagi, accused came there

and started dragging her hands. Immediately, she raised hue

and cry. Accused ran away from the spot. Again at 4.00 p.m.,

victim girl noticed accused wondering near the house and

intimated the same to her uncle Sardar Patel and Baba Patel.

Immediately both of them were able to caught hold of the

accused and general public gathered there and enquired. The

uncles of victim girl reported the incident to the general public

and the general public man handled the accused. Later on, the

victim girl and the uncles visited the Jewargi Police and lodged

the complaint, to take action against the accused.

5. After receipt of the complaint, the police

investigated the matter and filed charge sheet. The presence

of the accused was secured and after following necessary

formalities charges were framed. Accused pleaded not guilty

and therefore, trial was held.

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6. In order to bring home the guilt of the accused,

prosecution in all examined 15 witnesses, who are examined

as PWs.1 to 15 out of 26 charge sheet witnesses cited by the

Investigating Agency. Further, the prosecution in all relied on

23 documents, which were exhibited and marked as Exs.P1 to

P23. Two material objects were also marked on behalf of the

prosecution as MOs.1 & 2.

7. On conclusion of the prosecution evidence, the

accused statement as contemplated under Section 313 Cr.P.C.,

was recorded by putting across the incriminating

circumstances found against the accused in the prosecution

evidence. Accused denied all the incriminatory circumstances.

However, he did not choose to offer any written explanation as

is contemplated under Section 313(5) of Cr.P.C., nor adduced

any defence evidence.

8. Thereafter, the learned Trial Judge heard the

parties in detail and on cumulative consideration of the oral

and documentary evidence placed on record, passed the

judgment in detail and convicted the accused and sentenced

him as aforesaid.

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9. Being aggrieved by the same, the accused is before

this Court on the following grounds:

The judgment passed by the court below is wrong and against the facts and law and not taken into the consideration of statement of the material witnesses and Ex-P-6, Ex.P-7 and Ex.P-8 Medical Certificates and FSL Report are contradicted to entire story framed by the prosecution. Therefore, the judgment passed by the court is not at all sustainable in the eye of law.

Admittedly, the date of offence is 10-01- 2015. The computerized complaint is filed on 21-01- 2015. There is no proper explanation from the prosecution of delay in submitting the complaint. It clearly shows it is a manipulated story only with the malafied intention to convict the innocent, poor person only on the personal grudge of money loan transaction between with the appellant/accused with the father of the complainant. Therefore, this fact has not been considered by the court below. Hence, the judgment passed by the Court below is not sustainable.

The Ex.P-1 computerized complaint, statement of PW-8, statement of PW-8 on the basis of the medical reports are quite different and distinct. The court below has made observations as

CRL.A No.200082/2018

per the statement of PW-8 in para 20 of the judgment. The statement of the Medical Officer says that the victim has stated before her that she was going to answer call of nature, a person came from behind spread something her eye by which she became unconscious and she was sexually assaulted and family members had taken her from the spot and on the same day she had taken contraceptive pills and there was flow of blood for five days. This statement and observations of the PW-8 in para 26 of the judgment clearly negatives the prosecution case. Therefore, this statement has been totally discarded by the court below and has wrongly comes to the conclusions only on the imagination that victim had taken bath after date of incident till her Examination and changed close and as such there was no chance of tracing sperms. Therefore, the conclusions arrived by the court below is totally wrong and illegal and hence not sustainable.

It is respectfully submitted that the court below only on relying the evidence of PW-3 Mahadevappa and PW-4 Saibanna has comes to the conclusions that they have stated the said incident caused by the accused. There are no collaboration of evidences. They are not the eye witnesses. Therefore, the statement of PW-3 and PW-4 are not at all acceptable. Hence, the judgment passed by the court below is liable to be set aside.

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The court below has comes to the

conclusion only on the report of the school and the date of birth produced by the school which has not been collaborated with any other documents. There is absolutely no evidence that she is age about 12 years or 13 years, attracts the offence under the provisions of the POCSO Act. Hence, on, this ground also the impugned judgment is not sustainable. The court below has not at all considered the defence raised on behalf of the appellant/accused. Hence, the prosecution has created the story only with an intention convict the poor and innocent person. The prosecution has utterly failed to prove the offences alleged as against the appellant/accused. Hence, the entire judgment is based on assumptions and presumptions without any material facts. Therefore, the appellant/accused is entitled the benefit of doubt created in the entire story on the basis of the said statements.

It is respectfully submitted that prosecutrix had given Voluminous revelations which render the version as untrue. In this regard the judgment of the Hon'ble High Court reported in 2012 BOMBAY (Crimes) 353 (Nagpur Branch) which clearly supports the case of the 'accused/appellant. On this ground also the Trial Court has erred in passing the conviction order.

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It is submitted that the very route of prosecution case on the basis of the complainant- cum-victim before the Police as well as before the PW-8 Medical Officer is totally inconsistent. It shows shadow of doubt on the prosecution case. Therefore, on the basis of the inconsistent statement the court below ought not to have convicted the accused.

The entire judgment of the court below is arbitrary and not in accordance the sound principles of law."

10. Re-iterating the grounds urged in the appeal

memorandum Sri Vishal Pratap Singh, learned counsel for the

appellant vehemently contended that the entire case of the

prosecution is nothing but ingenious concoction on account of

the rivalry nurtured by the complainant party against the

accused.

11. He further argued that according to the prosecution

evidence, when the initial incident was hushed up by the

complainant party on the guise of fearing the dignity of the

family and prestige of the complainant party, but prosecution

witnesses deposed before the Court that the very father of the

victim girl disclosed the incident in the general public which

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runs contrary to the case of the prosecution and therefore, this

aspect of the matter was ignored by the learned Trial Judge

while convicting the accused and sought for allowing the

appeal.

12. He also contended that the medical records do not

establish that the victim girl is aged 12 years and that itself

shows that the prosecution has concocted the case against the

accused with ulterior motive and sought for allowing the

appeal.

13. Per contra, Sri Gururaj V. Hasilkar, learned High

Court Government Pleader, supports the impugned judgment

by contending that in a matter of this nature, if the testimony

of the prosecutrix reposes confidence in the Court that itself

can be made as a sole basis for convicting the accused. The

same settled principle of law has been applied by the learned

Special Judge while passing the impugned judgment. He also

pointed out that the prosecution having invoked the provisions

of POCSO Act, enjoyed the presumption as is contemplated

under Sections 29 and 30 of the POCSO Act and in the absence

of any rebuttal evidence placed on record, the learned Trial

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Judge was justified in convicting the accused for the aforesaid

offences based on the material available on record.

14. He further argued that mere minor contradictions

in the case of the prosecution itself would not be sufficient to

doubt the prosecution in toto and sought for dismissal of the

appeal.

15. In view of the rival contentions of the parties and

in the light of the arguments put forth on behalf of the parties

perused the records meticulously. On such perusal of the

records, the following points would arise for consideration:

(1) Whether the finding recorded by the learned Special judge that the appellant is guilty of the offence punishable under Sections 376(2)(i) and 506 of IPC and Section 4 of the POCSO Act, 2012, is suffering from patent factual defect, legal infirmity and perversity and thus, calls for interference?

(2) If so, whether the sentence is excessive?

(3) What order?

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16. In the case on hand, in order to prove the case of

the prosecution, in all 15 witnesses are examined as PWs.1 to

15 and among them victim girl is examined as PW-1.

17. The victim girl, who is examined as PW-1 has

deposed that her parents are running a hotel in Kudi-Dargah

Village. Meerasab is having a provision shop adjacent to their

hotel. She is acquainted with the accused who runs a mobile

telephone shop. She further deposed that when she was

studying in 7th standard, she used to visit the school at Kolkuru

by bus. For waiting the bus, she used to stand in front of the

mobile shop of the accused and accused used to make indecent

hand signals and used to tease her. She intimated the same to

her parents who inturn told her to be careful and also told

accused to behave properly.

18. She further deposed that when the matter stood

thus, on 10.1.2015 when she had been to a lonely place in the

land belonging to Akbar gouda for attending the nature call,

accused came there and put something into her eyes whereby

she started feeling unconscious and accused gagged her mouth

and after made her to fall on ground, removed her clothes and

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committed forcible sexual intercourse. He gave a life threat

and told that the incident should not be informed to anybody.

19. However, after gaining sufficient courage, she

dressed herself and came home weeping and intimated her

parents. She further deposed that her parents in order to

maintain the family prestige and dignity, did not take any

further action, but shifted her to Kalaburagi where her uncles

were residing.

20. She further deposed that 11 days thereafter, when

she was standing near the front door of the house of her uncle,

accused came there and pulled her hands and she raised alarm

and immediately the accused ran away. She intimated the

same to her uncles and at about 4.00 pm on the same day,

accused again came near the house of her uncle and

immediately she intimated the same to her uncles.

Immediately her uncles captured the accused with the help of

naighbours and on enquiry by the naighbours, as to why the

accused has captured, her uncles intimated the incident to

them. At that juncture, the people who gathered there

assaulted the accused and telephoned to the Jewargi Police

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Station. On such intimation police told them to visit Jewargi

Police Station and lodge a formal complaint.

21. She further deposed that accordingly, they visited

Jewargi Police Station and lodged a written complaint. Police

after registering the case, sent her for medical examination and

she co-operated with the police for spot mahazar. She

identified the accused, complainant and the spot mahazar.

22. In her cross-examination, she admits that front

door of their house and the door of the shop of accused is not

opposite to each other. She admits that if somebody sits in the

hotel of the parents of the complainant, the shop of accused is

very much visible. She admits that usually somebody would

accompany the woman folk when they go for attending the

nature call. However, she has answered that since it was still

not dark, she had not taken anybody along with her on the day

of incident. She admits that while reaching the Akbar gouda's

land, she met Saibanna and Mahadevappa who had finished

their coolie work and were returning to their village. She has

answered that the place where she has gone to attend the

nature call is 200 feet away from her house and a big house is

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situated in the said place but no body resides there. She

denied the suggestion that accused did not throw anything into

her eyes and he did not gag her mouth and he did not commit

rape on her. She denied that accused did not visit Kalaburagi

and dragged her hands nor misbehaved with her.

23. She admits that accused is in the business of mobile

telephone accessories and stationary materials in his shop. She

admits that accused is a resident of Kudi-Dargah. She denied

the suggestion that when accused visited Kalaburagi to

purchase articles to his shop, upon telephone made by her

father, accused has been assaulted by her uncles and lodged a

false complaint. She also denies the suggestion that her father

sought for Rs.10,000/- loan from the accused, which has not

been fulfilled by the accused and therefore, a false case has

been foisted against him.

24. PW-2 is the mother of the victim girl. She deposed

that they had a house in Kudi Dargah and she was studying in a

school at Kolkuru. She deposed about the accused having a

mobile accessory shop and eve-teasing the victim girl. She

deposed that one day about one year 2 months earlier to the

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deposition, at about 6.00 pm victim girl had been to attend the

nature call and at about 6.30 pm she came home weeping and

on enquiry victim girl revealed about the forcible sexual

intercourse accused had with her. In order to maintain the

family prestige and dignity, no complaint was lodged to the

police, but she was shifted to Kalaburagi, where her relatives

are residing. She further deposed that about 10-12 days later,

her elder brother telephoned to her and intimated that they

have caught hold of accused, and in order to lodge complaint

she was required to visit Police Station. Accordingly, she visited

Police Station wherein, the victim girl and her husband lodged

the complaint with the police.

25. Suggestions made to her that a false case has been

foisted against the accused is denied by her. To a specific

question as to whether accused was apprehended on the day of

unfortunate incident, she has answered that accused was not

found in the village on the date of the incident and he was

roaming on the motor cycle.

26. The circumstantial witnesses by name Mahadevappa

and Saibanna are examined as PW-3 and PW-4 who had seen

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the victim girl proceeding towards the land of Akbar gouda with

a small vessel of water and they had also witnessed accused

following her. Their cross-examination did not yield any

positive material to disbelieve their version.

27. Uncle of the victim girl by name Sardar Patel is

examined as PW-5. He deposed about the parents of the victim

girl visiting Kalaburagi along with victim girl and narrated to

him that accused had committed forcible sexual intercourse

with the victim girl and in order to maintain dignity of the

family, they did not intend to lodge any complaint to the police

but wanted him to provide shelter to the victim girl in his

place. He also deposed that 8-10 days later, victim girl

intimated that accused had pulled her hand in the morning and

again around 4.00 p.m., she has spotted the accused and

immediately himself and his brother apprehended the accused

and the general public who surrounded there, questioned as to

why accused has been apprehended and he has told them

about the incident and some of them assaulted the accused.

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28. In his cross-examination, suggestions made to him

that he has deposed falsely to help the victim girl is denied by

him.

29. Father of the victim girl is examined as PW-6. He

deposed in line with the examination-in-chief of his wife. In his

cross-examination also no useful material is elicited so as to

disbelieve his testimony.

30. Mahazar witness to Ex.P4 whereunder the clothes of

victim girl were seized is PW-7. His evidence is formal in

nature.

31. Dr. Supriya is examined as PW-8. She deposed

about the medical Examination of the victim girl and issuing

Certificate vide Exs.P6 & P7. She has stated that victim girl had

taken bath and changed clothes. She was not able to trace any

evidence about the forcible sexual intercourse. However, she

has noted that hymen of the victim girl had been torn.

32. In her cross-examination, she denies having given a

false Certificate to help the prosecution.

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33. Vehicle seizure panchanama Ex.P9 is examined as

PW-9 whereunder a vehicle bearing No.KA-33/2740 being

seized. He also identified the photograph as Ex.P10. His

evidence is formal in nature.

34. PW-10 is the FIR carrier, PW-11 is the Police

constable who carried the seized articles to Forensic laboratory.

PW-12 is the police constable who searched for accused and

filed the report as per Ex.P13. Their evidence is formal in

nature.

35. PW-13 is the PSI who registered the case in Jewargi

Police Station and sent the FIR.

36. PW-14 is the further Investigating Officer who

deposed that after taking further investigation from PW-13, he

collected information about the accused sent him to the medical

examination. He further deposed that accused ran away from

the Hospital and therefore, deputed his staff to search for

accused and collected medical reports, recorded the statement

of the charge sheet witnesses, seized material objects and on

conclusion of the investigation, filed charge sheet against the

accused.

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37. In his cross-examination, no useful material is

elicited so as to disbelieve the testimony of this witness.

38. PW-15 is the Head Master who gave the information

about the date of birth of the victim girl as 10.06.2001.

39. Among the documentary evidence placed on record,

Ex.P1 is the complaint, P2 is the statement of the victim girl

recorded before the jurisdictional Magistrate under Section 164

Cr.P.C., Ex.P3 is the photograph taken during the spot mahazar

Ex.P4 is the cloth seizure panchanama, Ex.P5 is the spot

panchanama, Ex.P6 is the Medical Certificate, Ex.P7 is the final

opinion, Ex.P8 is the FSL report, Ex.P9 is the vehicle seizure

panchnama, Ex.P10 is the photograph taken for the seizure of

the vehicle, Ex.P11 is the potential Certificate of accused,

Ex.P12 is the report of PW11, Exs.P13 to 15 are the reports of

PW12 who searched for accused. Ex.P16 is the FIR, Ex.P17 is

the sketch map, Ex.P18 ROR, Ex.P19 is the endorsement

regarding date of birth, Exs.P20, P21 and P22 are the reports of

CWs.22, 23 and 24 are the voluntary statements of the

accused.

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40. In the light of the arguments put forth on behalf of

the appellant, this Court re-appreciated the oral and

documentary evidence on record. On such re-appreciation, it

emerges that the victim girl and the accused were known to

each other. Accused used to eve-tease the victim girl when she

used to wait for bus to reach her school everyday. She used to

stand in front of the shop of the accused while waiting for the

bus. The incident of eve-teasing is reported to the parents of

the victim girl by victim girl. Accused was called and warned in

this regard.

41. According to victim girl, on 10.01.2015 at about

6.00 pm., when she had been to attend the nature call in the

land of Akbar Gouda, the accused followed her and threw

something on to her eyes and she became semi-conscious and

at that juncture, accused removed her clothes, gagged her

mouth and committed forcible sexual intercourse with her. She

came home weeping and intimated her parents about the

incident. However, her parents did not lodge any complaint to

the police nor questioned the accused on the same day about

the incident. On the contrary, they decided to shift the victim

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girl to Kalaburagi where victim girl's maternal uncles were

residing.

42. The parents and the victim girl have unequivocally

deposed about the incident and they have also stated that

immediately they did not lodge police complaint in order to

maintain the dignity and family prestige.

43. The material on record reveal that 10-12 days later,

accused followed the victim at Kalaburagi as well. He had

visited the victim girl and pulled her hands in the morning

session. Same was intimated by victim girl to her uncles.

Again, in the afternoon around 4.00 pm., the accused came

near the house of the victim girl at Kalaburagi. At that

juncture, on spotting the accused, the victim girl intimated the

same to her maternal uncles. Both of them came out and

apprehended the accused. At that juncture, the naighbours

also assembled there and on coming to know about the incident

through the maternal uncles of the victim girl, accused was

manhandled by the general public. Immediately thereafter, the

parents were also intimated about the incident and all of them

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proceeded to the Police Station and lodged the complaint about

the incident that occurred on 10.01.2015.

44. The tend of cross-examination reveal that the

accused is having a mobile accessory shop and father of the

complainant sought for loan of Rs.10,000/- from accused and

accused did not lend Rs.10,000/-; instead offer Rs.5,000/- as

loan which was not accepted by the complainant resulting in

filing a false complaint.

45. The said defence in the form of suggestions to the

prosecution witness remains suggestion on record without there

being any plausible proof placed on record. Though while

answering question No.34, accused has stated that he would

lead evidence to substantiate his innocence, he did not choose

to adduce any defence evidence nor he furnished any written

submissions as is contemplated under Section 313(5) of

Cr.P.C.,

46. As could be seen from the oral testimony of the

victim girl, her parents and her maternal uncle, the prosecution

case consists of two portions. One on 10.01.2015. On the

said day, at about 6.00 pm., when victim girl proceeded

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towards the agricultural land of Akbar gouda, for attending the

nature call, accused followed her and throwing something into

the eyes of victim girl, he made her semi conscious and de-

robed her and committed forcible sexual intercourse. The same

was intimated by the victim girl to her parents on the very

same day. However, the parents of the victim girl did not

choose to lodge any complaint to the police, fearing the family

dignity. Instead, they shifted her to Kalaburagi where maternal

uncles of the victim girl are residing.

47. It is the un-equivocal say of the victim girl and one

of her maternal uncles that 10-12 days later of the first incident

on 10.01.2015, accused visited Kalaburagi and came near the

house of the maternal uncle of the victim girl and pulled her

hands. Again the afternoon session, when the accused spotted

by the victim girl, same was intimated to PW-5 who inturn

came out and apprehended the accused and when enquired by

the general public, who had gathered there, intimated them

about the acts committed by the accused. Later, the incident

was also reported to the parents of the victim girl and complaint

came to be lodged with Jewargi Police on 21.01.2015.

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48. Admittedly, neither the victim girl nor her family

members or for that matter, the maternal uncle of victim girl

did not nurture any previous enmity or animosity so as to

falsely implicate the accused in the case by pledging their

family dignity. More so, when they pacified the victim girl on

10.01.2015, and left her in PW-5's house at Kalaburagi.

49. When accused followed the victim girl even at

Kalaburagi and misbehaved with her, the complainant party,

left with no alternative had to approach Jewargi Police.

50. In a matter of this nature, if the oral testimony of

the victim girl is worth believing and inspires confidence in the

Court, that her version is true version, the same can be the sole

basis for recording an order of conviction without looking for

further corroboration. Seeking for corroboration in the case of

the prosecution in a matter of this nature is only a rule of

prudence. In the case on hand, the version of the victim girl is

acceptable especially in the absence of any contra evidence

placed on record. Mere minor discrepancies pointed out by the

learned counsel for the appellant would not be sufficient enough

to doubt the case of the prosecution. More so, having regard to

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the fact that the victim girl is a minor at the time of the

incident.

51. Prosecution having placed the basic facts on record

with sufficient proof, taking note of the provisions of Sections

29 and 30 of the POCSO Act, the burden shifted on to the

accused to rebut the said presumption.

52. In the case on hand, even though the accused while

answering question No.34 of the accused statement, has

undertaken to adduce defence evidence. But, for the reasons

best known to him, he did not adduce any oral evidence nor

placed any written submissions as is contemplated under

Section 313(5) Cr.P.C. Therefore, the prosecution evidence

stood un-rebutted.

53. The learned Trial Judge taking note the oral

testimony of the victim girl and the observation of the doctor in

Ex.P6 that hymen is torn, recorded a categorical finding that

the victim girl is the victim of the forcible sexual intercourse on

the fateful day i.e., 10.1.2015.

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54. Mere delay in lodging the complaint would not be

sufficient to doubt the case of the prosecution in toto inasmuch

as the delay is properly explained in Ex.P1.

55. In the background of the material on record, this

Court is of the considered opinion that the reasons offered for

delayed complaint vide Ex.P1 is a plausible explanation.

Perhaps, if the accused had not visited Kalaburagi and

misbehaved with the victim girl, 10-12 days later to the first

incident, probably the accused would not have faced the

criminal trial at all.

56. From the above discussion, this Court is of the

considered opinion that the prosecution has successfully proved

the charges levelled against the accused beyond all reasonable

doubt. Minor discrepancies in the oral testimony of the

prosecution witnesses could only be termed as trait of natural

witness. The prosecution witnesses were not undergoing a

memory test before the Trial Court either. Therefore, this Court

has no hesitation of whatsoever in holding that the impugned

judgment is based on sound and logical reasons on the

attendant facts and circumstances of the case. Consequently,

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the impugned judgment cannot be termed as illegal or suffering

from perversity.

57. Thus, from the above discussion, the irresistible

conclusion to be reached by this Court is to hold Point No.1 in

the Negative. Accordingly, it is answered.

58. REGARDING POINT NO.2: The learned Trial Judge

has ordered 10 years rigorous imprisonment and fine of

Rs.10,000/- for the offence punishable under Section 4 of the

POCSO Act and 6 months simple imprisonment for the offence

punishable under Section 506 IPC with fine of Rs.1,000/-.

59. In the case on hand, since the appellant/accused

has gone to the extent of denying the entire incident and has

not placed any material on record to hold that a false

prosecution has been launched against him, in the considered

opinion of this Court, the sentence as ordered by the learned

Trial Judge is just and proper.

60. Further, even before this Court, no mitigating

circumstances are placed by the accused so as to reduce the

sentence.

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61. Hence, this Court is of the considered opinion that

Point No.2 is to be answered in Negative and accordingly, it is

answered.

62. REGARDING POINT No.3: In view of the finding of

this Court on point Nos.1 & 2, following order is passed:

ORDER

The Appeal sans merit and accordingly, dismissed.

Sd/-

JUDGE

PL