Rakesh S/O Dasharath Choori vs The State Of Karntaka
2023 Latest Caselaw 516 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 09TH DAY OF JANUARY, 2023

                        BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL No.200151/2016


BETWEEN:

RAKESH S/O
DASHARATH CHOORI
AGE: 25 YEARS,
OCC: COOLIE
R/O HONNUTAGI
TQ. & DIST. VIJAYAPUR
                                        ... APPELLANT

(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)


AND:

THE STATE OF KARNATAKA
R/BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
(THROUGH RURAL P.S.
DIST. VIJAYAPUR.
                                      ... RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)
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       THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
OF   CONVICTION     AND ORDER OF        SENTENCE DATED
01.09.2016, PASSED BY THE II-ADDITIONAL SESSIONS
AND SPECIAL JUDGE AT VIJAYAPUR IN SPL. (POCSO)
CASE    NO.29/2015    AND    ACQUIT    THE    APPELLANT   /
ACCUSED.


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

                        JUDGMENT

Heard Sri Shivanand V.Pattanshetti, learned counsel

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

Court Government Pleader.

2. The present appeal is directed against the

judgment of conviction and order of sentence passed in

Special POCSO Case No.29/2015 on the file of II-Additional

Sessions Judge and Special Judge, Vijayapura.

3. Brief facts of the case are as under:

A complaint came to be lodged by Bhimappa stating

that his son (victim boy) who is six years old was playing

with his friends in the locality on 17.04.2013 at about

12.30 p.m. At that juncture, accused/appellant enticed the

victim boy to visit him in the guise of giving dry grape

fruits and took him to his house. Victim boy gullibly fell

prey to the enticement and went inside the house of the

accused. Accused closed the door from inside and removed

the nicker of the boy and made him to sleep in prone

position and he also disrobed himself and indulged in

carnal intercourse with the victim boy and harassed the

victim boy despite having the knowledge that the victim

boy was aged 6 years and thereby committed the offence

under Section 377 of IPC read with Sections 5 and 6 of

POCSO Act, 2012. Initially, the FIR was lodged to II-

Additional JMFC Court, Vijayapura and on coming to know

that the offences are being committed on the victim boy,

who being aged 6 years, a requisition was made to the

learned Magistrate to send the matter to the Special Court

constituted under the POCSO Act.

4. Thereafterwards, the matter was investigated

in detail and chargesheet came to be filed against the

accused for the aforesaid offences.

5. Presence of the accused was secured and

charges were framed for the aforesaid offences. Since the

accused pleaded not guilty, the trial was held against him.

6. In order to prove the case of the prosecution,

13 witnesses were examined on behalf of the prosecution

as P.Ws.1 to 13 and documentary evidence were exhibited

and marked as Ex.P.1 to P.10 comprising of birth

certificate of boy, admission register extract, complaint,

spot panchanama, statement of P.W.6, FIR, medical report

of the accused and victim boy, requisition made by the

Investigating Officer and the statement of the victim boy

under Section 164 of Cr.P.C.

7. On conclusion of the prosecution evidence

accused statement as contemplated under Section 313 of

Cr.P.C., was recorded by the learned Magistrate where

accused denied all the incriminating materials put to him

and did not offer any explanation whatsoever in respect of

the incident by furnishing any written statement as is

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

any defence evidence to rebut the presumption available

to the prosecution under Section 29 and 30 of POCSO Act.

8. Thereafter, the learned Sessions Judge heard

the parties in detail and after considering the material on

record, passed an order of conviction and sentenced the

accused as under:

"Accused is hereby sentenced to undergo rigorous imprisonment of 10 (ten) years for the offence punishable U/s. 377 of IPC r/w Sec.5(m) of Protection of Children from Sexual Offences Act, 2012 punishable U/s.6 of Protection of Children from Sexual Offences Act, 2012 and shall pay a fine of Rs.10,000/-. In default of payment of fine, accused shall undergo simple imprisonment for a period of 3 (three) months.

So far as awarding of compensation to the victim is concerned, prosecution has not brought on record the financial status of accused to show that he is capable to pay the compensation. Therefore it is liability of the State to pay the

compensation to the victim U/s.357(A) of CrPC r/w Rule-7 of POCSO Rules 2012, as prescribed for this type of offences and shall pay the same.

Issue conviction warrant accordingly.

Forward the copy of this judgment to the Deputy Commissioner, Vijaypur with a direction to submit the compliance report about the directions issued by this court within fortnight.

Furnish the copy of this judgment to the accused forthwith."

9. Being aggrieved by the same, the appellant

preferred this appeal on the following grounds:

x That, the judgment of conviction and order of sentence passed by the learned judge is contrary to the facts of the case, evidence on record & against the settled principles of law.

x That, the Learned Sessions Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner.

x That, without admitting the case of prosecution, looking in to the Ex.P-10 statement of victim boy recorded U/s 164 of Cr.P.C. it is very much

clear that, there was no aggravated form of sexual assault. Hence, conviction and sentence rendered by the trial court for aforesaid of offence is against the settled principles of law.

x That, PW-1/victim boy has not stated the date and time of incident either in his 164 statement or in the evidence before the court. Hence, trial court ought to have appreciated the said fact and given a benefit of doubt to the appellant.

x That, though alleged incident stated to have been taken place in the year April-2013, the statement U/s 164 of Cr.P.C. has been recorded in the year 2015. So, the benefit of recording of belated 164 statements ought to have extended to the appellant. Since, there was every possibility to tauter the alleged victim boy.

x That, as per Ex.P-8 the victim boy has been treated as outpatient which is contrary to the evidence of victim boy and his parents and moreover case seat of the hospital is not summoned by the prosecution. Hence, the said benefit ought to have extended to the appellant.

x That, PW-1/victim boy has admitted in the cross-examination that there is other house in the surroundings, if really such incident had happened, the neighbours would have been the

first persons to come out. Hence, trial Court ought to have appreciated this fact in favour of appellant.

x That, PW-2, Bhimappa who is complainant in this case, as deposed that he is unaware of the contents of complaint, therefore with these inconsistencies in the evidence of material witnesses, who admittedly are interested witnesses, have falsely implicated the appellant as there was enmity between the family of appellant and that of complainant, therefore, prayed to acquit the appellant.

x That, appellant succeeded in rebutting the presumption available under the POCSO Act by way of attending circumstances.

x That, PW-5 & PW-11 are the pancha witnesses and PW-6 is the material witness for the prosecution turned hostile to the prosecution case. Hence, said benefit was ought to have extended by the trial court in favour of appellant.

x That, PW-1, PW-2, PW-3, PW-4, PW-9 are the highly interested witnesses just to take revenge in respect of earlier family dispute and default falsely before the court. Hence, trial court ought to have appreciated their evidence in proper

manner and ought to have given benefit of doubt to the appellant.

x Looking into the evidence on record absolutely there is no material to connect the guilt U/s 377 R/w 5(m) of POCSO Act and punishable U/s Sec.6 of POCSO Act 2012.

x That, looking into the medical evidence absolutely no material to connect the commission of alleged act, even then court below convicted the appellant without appreciating the evidence on record in proper manner is bad in law.

x That, prosecution failed to give any explanation regarding the non examinations of material witnesses.

x That, trial court failed to follow the basic principles of law regarding the proving of prosecution case. It is settled law that, the prosecution must prove their case independently without depending upon the weakness or lacuna on the part of the defence.

x That, trial court ought to have come to conclusion that, I.O. as conducted the tainted investigation.

x That, without admitting the prosecution case, the order of sentence imposed on the appellant is too higher side and exorbitant.

x That, court below not properly put the incriminating circumstances to the appellant while recording 313 Statements.

x That, court below ought to have given a benefit of doubt to the appellant.

x That, it is respectfully submitted that, the learned Special Judge has not at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal and incorrect. The same has resulted in miscarriage of justice to the appellant.

x That, the appellant seeks leave of this Hon'ble Court to urge the other grounds at the time of final hearing."

10. Sri Shivanand V. Pattanshetti, learned counsel

for the appellant reiterating the grounds urged in the

appeal memorandum contended that the material evidence

on record is not properly appreciated by the trial Court and

sought for allowing the appeal.

11. Per contra, learned High Court Government

Pleader, Sri Gururaj V. Hasilkar supports the impugned

judgment and sought for dismissal of the appeal.

12. This Court in the light of the arguments

putforth by the parties, perused the records meticulously.

On such perusal of the records, the following points would

arise for consideration:

1. Whether the prosecution has successfully established that the offences alleged against the accused/appellant are just and proper?

            2. Whether     the      impugned     judgment     is
               suffering     from     legal     infirmity   and

perversity and thus calls for interference?

3. Whether the sentence is excessive?

4. What order?

13. In the case on hand, in order to prove the case

of the prosecution, victim boy was examined as P.W.1 and

Bheemappa father of the victim boy and complainant is

examined as P.W.2. Gourawwa, who is the mother of the

victim boy is examined as P.W.4 and Kasturibai who is the

sister of complainant and the paternal aunt of victim boy is

examined as P.W.4.

14. Victim boy has supported the case of the

prosecution in toto in his examination-in-chief. He

specifically stated he was playing with his friends, accused

enticed him in the guise of giving dry grapes called him

inside his house and when he went inside the house,

accused locked the door from inside and committed carnal

intercourse with the victim boy resulting in pain and the

victim boy immediately intimated to the paternal aunt

P.W.4. Later on the matter was intimated to P.W.2 and

who in turn enquired the boy and lodged the complaint

vide Ex.P.3 with the jurisdictional police.

15. The boy was then taken to the hospital and he

was examined doctor P.W.8. Medical report of victim boy

marked as Ex.P.8. The victim boy also revealed the

incident to his parents and paternal aunt who all have

supported the case of the prosecution and they withstood

the detailed cross-examination.

16. The defence theory is one of total denial.

However, material on record clearly shows that victim had

bleeding injuries in his anal canal as is deposed by P.W.8

who issued medical certificate in respect of victim boy

marked as Ex.P.8.

17. The examination of the victim has taken place

immediately after the incident without there being much

loss of time as the incident has occurred around 12.30

p.m., in the afternoon and victim has been examined in

the district hospital at about 9.45 pm. Hardly there was a

scope of concoction of the case by P.W.2 as against the

accused in the absence of any previous enmity or

animosity, the material on record has thus been rightly

appreciated by the trial judge.

18. Further the boy being aged 6 years and the

injuries noted by the doctor at anus of the victim at 7 o'

clock position, 10 o' clock position and 11 o' clock position

with active bleeding in the anal canal. Such injuries cannot

be occurred otherwise than a forcible carnal intercourse by

somebody.

19. It is the specific case of the victim boy that

when he was playing with his friends, accused enticed him.

Why would a six year old boy falsely implicate the accused

is a question that remains unanswered by the accused.

20. Considering all these aspects of the matter,

this Court is of the considered opinion that the finding

recorded by the learned trial Judge in holding that accused

is responsible for the injuries noted by P.W.8 doctor in

Ex.P.8 is just and proper, more so, in the absence of any

rebuttal evidence placed by the accused on record nor

placing any written submission as is contemplated under

Section 313 (5) of Cr.P.C. It is pertinent to note that victim

boy, his parents or for that matter P.W.8 - Doctor or

investigation agency did not provide any previous

animosity or enmity to depose against accused. No contra

material is placed either by accused.

21. Accordingly, from the above discussion, this

Court is of the considered opinion that point No.1 is to be

answered in the affirmative and point No.2 in the negative.

Regarding point No.3

22. The trial Court after taking note of the fact that

accused had committed forcible carnal intercourse with the

victim boy, the offence alleged against the accused under

Section 377 read with sections 5 and 6 of POCSO Act

stands established and sentenced the accused for 10 years

imprisonment and awarded with fine of Rs.10,000/-.

23. The minimum sentence for aggravated sexual

assault under Section 5(m) of the POCSO Act is punishable

under Section 6 of the POCSO Act for 10 years before

amendment to POCSO Act on 16.08.2019.

24. No mitigating circumstances are pleaded on

behalf of the accused/appellant and case of the defence is

of the total denial.

25. Insofar as compensation is concerned, the

learned trial judge has found that prosecution has not

brought on record the financial status of the accused so as

to award final compensation under Section 357 of Cr.P.C.,

and therefore, compensation be paid by the State under

Section 357(A) of Cr.P.C., to the victim boy.

26. Therefore, viewed from any angle, this Court is

of the considered opinion that the sentence ordered by the

trial Court in the impugned judgment is just and proper.

Accordingly, point No.3 is also answered in negative.

Regarding point No.4:

27. In view of the finding of this Court on point

Nos.1 to 3 above, the following order is passed:

ORDER

The appeal is meritless and hereby dismissed.

Since the sentence ordered by the trial Court was

suspended by this Court vide order dated 14.11.2017,

accused/appellant is directed to surrender before the trial

Court on or before 20.01.2023 for serving remaining part

of the sentence, failing which the trial Court shall secure

his presence by taking appropriate steps.

Office is directed to return the Trial Court Records

with a copy of this judgment forthwith.

Sd/-

JUDGE

VNR