Karnataka High Court
Lokesh vs The State Of Karnataka on 11 July, 2023
Bench: Hemant Chandangoudarpresided Byhcj
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CRL.A No. 200082 of 2019
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO. 200082 OF 2019 (374-)
BETWEEN:
1. LOKESH
S/O AMRUT @ AMBARAYA MANG,
AGE:21 YEARS,
OCCU:COOLIE WORK,
R/O HARASOOR VILLAGE,
TQ & DIST.KALABURAGI-585109.
...APPELLANT
(BY SRI. R S LAGALI,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE PSI., MAHAGAON PS.,
REP.BY THE ADDL. STATE PUBLIC PROSECUTOR,
Digitally signed by
HIGH COURT OF KARNATAKA,
LUCYGRACE
Location: HIGH COURT
KALABURAGI-585102.
OF KARNATAKA ...RESPONDENT
(BY SRI SHARANABASAPPA M PATIL, HCGP)
THIS CRL.A. FILED U/S.374 (2) OF CR.P.C BY THE
ADVOCATE FOR APPELLANT /ACCUSED PRAYING THAT THIS
HONBLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER
OF CONVICTION DATED 02.04.2019 PASSED BY THE II
ADDL.SESSIONS JUDGE AT KALABURAGI IN S.C.No.06/2018
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE U/SEC. 341, 354(A), 307, 504, 506, 376, 511 OF
IPC AND U/SEC.8 AND 18 OF POCSO ACT 2012.THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I.FOR
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TEN YEARS AND A FINE OF RS.1,00,000/- (RUPEES ONE LAKH)
FOR THE OFFENCE PUNISHABLE U/SEC.307 OF IPC AND IN
DEFAULT OF PAY FINE, HE SHALL UNDERGO FURTHER S.I.FOR
A PERIOD OF TWO YEARS.THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO S.I.FOR ONE MONTH AND A FINE OF
RS.500/- (RUPEES FIVE HUNDRED) FOR THE OFFENCE
PUNISHABLE U/SEC.341 OF IPC IN DEFAULT TO PAY FINE, HE
SHALL UNDERGO S.I.FOR A PERIOD OF 8 DAYS.THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I.FOR
THREE YEARS AND A FINE OF RS.25,000/- (RUPEES TWENTY
FIVE THOUSAND) FOR THE OFFENCE PUNISHABLE U/SEC.354-
A OF IPC AN IN DEFAULT TO PAY FINE, HE SHALL UNDERGO
S.I.FOR A PERIOD OF ONE YEAR.THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I.FOR TWO YEARS AND A FINE OF
RS.10,000/- (RUPEES TEN THOUSAND) FOR THE OFFENCE
PUNISHABLE UNDER SEC.504 OF IPC AN IN DEFAULT TO PAY
FINE, HE SHALL UNDERGO S.I.FOR A PERIOD OF SIX
MONTH.THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I.FOR TWO YEARS AND A FINE OF RS.10,000/-
(RUPEES TEN THOUSAND) FOR THE OFFENCE PUNISHABLE
U/SEC.506 OF IPC AND IN DEFAULT TO PAY FINE, HE SHALL
UNDERGO S.I.FOR A PERIOD OF SIX MONTHS.THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I.FOR
SEVEN YEARS AND A FINE OF RS.1,00,000/- (RUPEES ONE
LAKH) FOR THE OFFENCE PUNISHABLE U/SEC.376 R/W
SEC.511 OF IPC AND U/SEC.8 OF POCSO ACT 2012 AND IN
DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER S.I.FOR
A PERIOD OF TWO YEARS.THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I.FOR THREE YEARS AND A FINE
OF RS.2,000/- (RUPEES TWENTY FIVE THOUSAND) FOR THE
OFFENCE PUNISHABLE U/SEC.8 OF POCSO ACT 2012 AND IN
DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I.FOR A PERIOD
OF ONE YEAR.ALL THE SENTENCES OF IMPRIOSONMENT SHALL
RUN CONCURRENTLY.THE APPELLANT/ACCUSED PRAYS THAT
HE MAY BE ACQUITTED.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal under Section 374(2) of Cr.PC is filed
challenging the impugned judgment and order dated 2.4.2019
passed by the learned II Additional Sessions Judge, Kalaburagi
in Special Case (POCSO) No.06/2018, by which, the accused
has been convicted for the offences punishable under Sections
341, 354(A), 307, 504, 506, 376, 511 of IPC and Sections 8
and 18 of the POCSO Act, 2012 and he has been sentenced to
undergo RI for a period of 10 years for the offence punishable
under Section 307 of IPC and fine of Rs.1,00,000/- , and
sentenced to undergo RI and pay fine as enumerated in the
order of sentence.
2. The case of the prosecution is that, on 18.11.2017
at about 12.30 p.m., when CW1 - victim, who was minor aged
about 16 years, went near the lake to wash the clothes, the
accused came there, held, dragged and abused her in filthy
language by putting knife to her neck, and threatened her life
and attempted to kill. When the victim tried to escape from the
clutches of the accused, he bit on her left hand forcibly, CWs.4
and 5 came to rescue her. Later the accused abused in filthy
language, and ran away from the spot. CWs.4 to 8 are the eye
witnesses to the incident.
3. The learned Sessions Judge framed the charges and
read over and explained the same to the accused, to which, the
accused denied, and pleaded not guilty, and claimed to be
tried.
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4. The prosecution to prove its case examined PWs.1
to 11 and exhibited the documents as Ex.P1 to P15 and marked
the material objects at MOs.1 to 7.
5. After completion of the evidence of prosecution, the
incriminating circumstances found in the evidence of
prosecution witnesses were put to the accused as contemplated
under Section 313 of Cr.PC, to which, the accused denied. The
learned Sessions Judge, after appreciating the evidence on
record, passed the impugned judgment of conviction and order
of sentence. Hence, this appeal.
6. The learned counsel for the appellant - accused
would submit that, in the absence of any material on record
that, the accused has committed sexual assault, or there was
any attempt made by the accused to cause death of the victim,
and also in the absence of any intention to outrage modesty of
the victim, the impugned judgment passed by the learned
Sessions Judge is not sustainable in law.
7. The learned High Court Government Pleader would
submit that, the evidence on record establishes that, the
accused has committed the aforesaid offence, and the
prosecution having established the guilt of the accused beyond
all reasonable doubt, the learned Sessions Judge has rightly
passed the impugned judgment, and the same does not
warrant any interference.
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8. Considered the submissions of the learned counsel
for the parties and perused the material on record.
9. PW1, in her examination-in-chief, has stated that,
the accused used to roam around near her house, pelt stones
on the terrace of the house, and abuse her in filthy language.
When she questioned, the accused went away without
responding. On 18.11.2017, when she and her mother were
going to the lake to wash clothes, at that time, the accused
came, restrained them, holding a club, and stated that, he has
to speak to the victim, and thereafter, held her hand, and when
she tried to escape, the accused held a knife to her neck, and
threatened her that, he would kill her. When her mother came
to rescue her, the accused pulled her, and bit her left hand, and
when they screamed, her maternal uncle, Shivasharanappa and
Rudrappa, who are the residents of the village, came to rescue
them. Nothing was elicited in the cross-examination to
disbelieve her statement. Though the victim had not stated
that, there was sexual assault, however, a suggestion was
made in the cross-examination that, the accused assaulted her
with an intention to outrage her modesty. The eye witnesses
to the incident viz: PWs.2 and 3 have supported the case of the
prosecution, and nothing was elicited in the cross-examination
to disbelieve their statements.
10. The incident having been proved by the
prosecution, the point that arises for consideration is: whether
the allegation made against the accused constitutes the
commission of offences of which he is convicted.
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11. To constitute an offence punishable under Section
307 of IPC, an act must be done by a person with an intention
or knowledge, if he by that act caused death. In the instant
case, the allegation against the accused is that, he put the
knife to the neck of the victim. In the statement recorded
under Section 164 of Cr.PC, the victim has stated that, the
accused threatened that, he would kill her by stabbing with the
knife. Either in the FIR, nor in the statement recorded under
Section 164 of Cr.PC, nor the statement of the eye witnesses,
there is an allegation that, the accused had put the knife to the
neck of the victim, and the statement made in the
examination-in-chief is an improvement, and to that extent, the
statement of the victim is not trustworthy or credible so as to
hold that, the accused is guilty of the offence punishable under
Section 307 of IPC. The learned Sessions Judge, the contrary
to the evidence on record, has convicted the accused for the
offence punishable under Section 307 of IPC, and the same is
not sustainable in law.
12. To constitute an offence punishable under Sections
376 and 511 of IPC, there is no allegation, much less, any
material so as to establish the circumstances so as to constitute
the commission of offence of rape as specified under Section
376 of IPC. Hence, in the absence of any evidence on record
so as to constitute the commission of offence under Sections
376 and 511 of IPC, the impugned judgment of conviction
insofar as it relates to convicting for the aforesaid offence is
also not sustainable in law.
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13. To constitute an offence punishable under Section 8
of the POCSO Act, 2012, a person must have touched the
vagina, penis, anus or breast of the child or makes the child
touch the vagina, penis, anus or breach 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. In other words, a person is said to have
committed sexual assault if commits any act, which involves
physical contact with sexual intent.
14. To prove the guilt of the accused for the offence
punishable under Section 8 of the POCSO Act, the prosecution
has to prove that, the accused with sexual intent held the
hands of the victim. However, the prosecution, in the instant
case, has not established that, the accused held/pulled the
hands of the victim with sexual intent. Explanation appended
to Section 11 of the POCSO Act specifies that, any question
which involves "sexual intent" shall be a question of fact. The
ordinary meaning of `sexual intent' means the decision to act
in a manner in order to fulfill sexual desire.
15. The prosecution having failed to establish that, the
accused held the hands of the victim with sexual intent, the
conviction of the accused for the offence punishable under
Section 8 of the POCSO Act is not sustainable in law.
16. To constitute an offence punishable under Section
354A of IPC, a man must have committed the act of physical
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contact involving unwelcome and explicit sexual overtures. In
the instant case, the allegation is that, the accused held the
hands of the victim, however, there is no allegation that, the
same involved unwelcome and explicit sexual overtures. Mere
physical contact without an intention to outrage modesty of the
woman would not alone constitute the commission of offence
under Section 354A of IPC, unless the same involves
unwelcome and explicit sexual overtures. Hence, the
conviction of the offence punishable under Section 354A of IPC
is also not sustainable.
17. Though the accused is not charged and convicted
for the offence punishable under Section 324 of IPC, however,
the evidence on record clearly establishes that, the victim
sustained simple injury due to the act of the accused by biting
her left hand, which is evident from the wound certificate at
Ex.P3. On re-appreciation of evidence on record, the
prosecution has established the guilt of the accused for the
offence punishable under Sections 341, 504, 506 of IPC, and
the conviction for the aforesaid offences cannot be faulted with.
18. The accused was in judicial custody for more than
22 months. The offence punishable under Section 323 of IPC is
for a maximum period of one year or with fine or both. The
prosecution having established the guilt of the accused for the
offence punishable under Section 323 of IPC, it would suffice if
the accused is sentenced to undergo SI for a period of one year
with fine.
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19. Insofar as the payment of fine amount, in the light
of the interim order granted by this Court, the accused has
deposited 50% of the total fine amount, which comes to
Rs.1,35,250/-. It would suffice that, the said fine amount is
adjusted to the fine amount to be paid by the accused for the
offence of which he is held guilty for the offence punishable
under Sections 341, 504, 506, 323 of IPC .
20. The accused having already served the sentence for
about 22 months, it would suffice that the remaining period of
sentence is hereby set off. Accordingly, I pass the following:
ORDER
i) Criminal appeal is allowed in part.
ii) The impugned judgment of conviction and order of
sentence insofar as it relates to conviction for the offence
punishable under Sections 307, 354-A, 376 read with Section
511 of IPC and Section 8 and 18 of the POCSO Act is hereby set
aside and the accused is acquitted of the said offences.
iii) The accused is convicted for the offence punishable
under Section 323 of IPC and sentenced to pay fine of
Rs.1,14,250/- and the same is adjusted out of the fine amount
already deposited by the accused in the light of the order
passed by this Court, and the conviction of the accused for the
offences punishable under Sections 504, 506 and 341 of IPC is
confirmed.
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iv) Out of the total fine amount, a sum of Rs.75,000/-
to be released in favour of the victim viz: PW1 and the balance
amount to be released in favour of the State Government.
Sd/-
JUDGE
BKM
