State Of Karnataka vs R. Allahbhakshi @ Bhakshi
2023 Latest Caselaw 4248 Kant

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                                                        NC: 2023:KHC:23847-DB
                                                             CRL.A No. 623 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 11TH DAY OF JULY, 2023

                                              PRESENT
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                 AND
                             THE HON'BLE MR JUSTICE G BASAVARAJA
                                CRIMINAL APPEAL NO. 623 OF 2017
                   Between:

                   State of Karnataka
                   by Chitradurga Kote Police Station,
                   Represented by State Public Prosecutor,
                   High Court Building, Bengaluru-01.
                                                                        ...Appellant
                   (By Smt. Rashmi Jadhav, HCGP)

                   And:

                   1.    R. Allahbhakshi @ Bhakshi
                         Son of Ramzan Sab,
                         Aged about 30 years,
                         Occ: Welding,
Digitally signed         R/o. Near Noorani Masjid,
by C K LATHA             Railway Station Badavane,
Location: HIGH           Chitradurga City-577 501.
COURT OF
KARNATAKA
                   2.    H.Ningappa
                         S/o. Hanumanthappa
                         Aged about 48 years,
                         R/at Near Noorani Mosque
                         Railway Station Layout,
                         Chitradurga Town, Chitradurga District
                         [Respondent No.2 impleaded vide court
                         order dated 14.7.2022]
                                                                     ...Respondents
                   (By Sri P.B.Umesh, Advocate for
                       Sri R.B.Deshpande, Advocate for R1;
                       R2 - served, unrepresented)
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                                    NC: 2023:KHC:23847-DB
                                         CRL.A No. 623 of 2017




      This Criminal Appeal is filed under section 378(1) & (3)
Cr.P.C. praying to grant leave to appeal against the judgment
and order of acquittal dated 05.12.2016 passed by the II
Additional District and Sessions Judge, Chitradurga in
Spl.C.(POCSO)      No.2/2015      -   acquitting    the   first
respondent/accused for the offence p/u/s 363, 366, 376(2)(i)
of IPC and section 4 of POCSO Act, 2012 and etc.,

     This Criminal Appeal having been heard and reserved on
15.06.2023 coming on for pronouncement this day, Sreenivas
Harish Kumar J., pronounced the following:

                        JUDGMENT

In this appeal by the State, the judgment of

acquittal dated 5.12.2016 passed by the II

Additional District and Sessions Judge,

Chitradurga, in Spl.C.(POCSO) No.2/2015 is sought

to be reversed.

2. Briefly stated the prosecution case is as

follows;

On 04.10.2014, PW22 along with her mother

and sisters had been to watch Dasara Procession at

Chitradurga. Around 2.00 PM they all returned

home. PW22 went out again to remove the

slippers left outside the house, but did not come

NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017

inside, when she went unseen, her mother

informed it to PW1, the father of PW22. When he

made enquiry here and there, Ramesh, i.e., PW2

told him that he saw the accused taking his

daughter in an autorickshaw. PW1 went to the

house of the accused and asked his father of the

same, but he got evasive answers from him.

Therefore at 4.00 PM on 05.10.2014 he went to

police station and gave a report based on which

the police registered an FIR in Crime No. 147/2014

for the offences under Sections 363, 114 read with

Section 34 of IPC. After tracing of PW22, her

statement was recorded and after completing the

other formalities, charge sheet came to be filed

against the accused for the offences under sections

366, 376 (2)(i) of IPC and section 4 of POCSO Act.

3. On assessment of oral evidence of 25

prosecution witnesses and documentary evidence

as per Exs.P1 to P40, the trial court found that the

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prosecution failed to prove that PW22 was a minor

girl. Ex.P25 is the certificate issued by PW16 who

was the headmaster of the high school where

PW22 was studying. In Ex.P25 he mentioned her

date of birth as 23.1.2000. Ex.P27 is the report

given by PW17 stating that age of PW22 was

around 15-16 years. Referring to these

documents, the trial court held that though in

Ex.P25 the date of birth is mentioned as

23.1.2000, PW17 stated in the evidence that he

gave his opinion observing the developments of

bones and therefore marginal error of two years on

either side was possible. In this view the trial

court came to a conclusion that the prosecution

was not able to prove that PW22 was still a minor.

Then referring to admission given by PW22 that

she was in love with the accused, it was not

possible to believe the prosecution case that she

was subjected to forcible sexual intercourse by the

accused.

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4. Questioning the correctness of the

findings of the trial court, Smt. Rashmi Jadhav,

learned Government Pleader, argued that Ex.P25 is

conclusive proof with regard to age of the girl.

The evidence given by PW17 is also that the age

was around 15-16 years. If Ex.P25 is seen in the

light of the age assessed by PW17, the age of

PW22 was below 18 years and she was a minor.

Then she refers to the entire evidence of PW22 to

substantiate her argument that her testimony is so

clear that she was kidnapped by the accused when

she was returning home after attending the Dasara

procession; she was brought to Harihara and the

accused first had sexual intercourse with her in a

room situated beside a toilet of the Urdu school by

tying her limbs. She was threatened to be killed if

she shouted. She was taken to Hubli and from

there to Chennai and from there to Patna where

she was confined in a room and subjected to

sexual intercourse forcibly. The evidence of PW22

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has not been discredited in the cross-examination.

The evidence of PW2 shows that he saw accused

taking PW22 in an autorickshaw and therefore the

incident of rape on a minor girl has stood proved.

PW21 is the doctor who examined PW22 and he

found rupture of hymen. Therefore the evidence of

PW22 finds corroboration from the testimony of

PW21. This being the evidence the trial court

ought not to have acquitted the accused.

5. Sri P.B.Umesh, learned counsel for the

respondent No.1/accused, argued that the whole

incident of sexual assault on PW22 is concocted,

the evidence clearly shows that PW22 was not a

minor. Ex.P25 cannot be acted upon because it

was issued by the headmaster of the school which

was not first attended by PW22. The requirement

was that age proof must be provided by the school

first attended by the girl. The evidence given by

PW17 cannot also be acted upon because based on

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the developments of the bone, only approximate

age could be fixed and as has been admitted by

PW17, marginal benefit of two years is always

available. Thus seen PW22 cannot said to be a

minor. Though PW22 appears to have not been

assailed in the cross-examination, yet if it is

considered as a case of consent, because of

insufficiency of evidence with regard to age of the

girl, accused cannot be convicted and the trial

court came to right conclusion to acquit him. For

these reasons, appeal is devoid of merits.

6. We have considered the arguments.

7. Certainly the whole issue revolves around

age of PW22 as her evidence indicates that she too

might be a consenting party for the sexual

intercourse. If she was a minor, her consent was

immaterial. In this background all that we need to

examine is whether the finding of the trial court

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that PW22 was not a minor on the date of incident

is correct or not.

8. It is true that PW22 has given her date of

birth as 23.01.2000, and in proof of the same, the

prosecution produced Ex.P25, a certificate issued

by the Head Master of the High School stating that

the date of birth of PW22 is 23.01.2000. The

incident took place in the month of October, 2014.

The Hon'ble Supreme Court in the case of

JARNAIL SINGH VS. STATE OF HARYANA [AIR

2013 SC 3467] has held that the age of the rape

victims should be determined in accordance with

Rule 12 of the Juvenile Justice (Care and

Protection of Minors) Rules, 2007. According to

Rule 12, the following are the documents that may

be produced by the prosecution in proof of the

age.

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i. The matriculation or equivalent certificates, if available; and in the absence whereof,

ii. The date of birth certificate from the school (other than a play school) first attended; and in the absence whereof,

iii. The birth certificate given by Corporation or a Municipal Authority or a Panchayat.

9. Now in the case on hand, Ex.P25 falls

under none of the above categories. High School

was not the school first attended by PW22.

Therefore Ex.P25 cannot be considered to be a

primary document in proof of age. Then the

prosecution has relied on Ex.P27, the report of the

Radiologist of District Hospital, Chitradurga.

According to this document age of PW22 was

around 15 to 16 years. PW17 admits in the cross

examination that a marginal difference of two

years can be taken either side for the age that he

determined based on the developments of the

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NC: 2023:KHC:23847-DB CRL.A No. 623 of 2017

bones of PW22. Since the benefit is to be given to

the accused, two years is to be added to the

higher end age i.e., 16 years and thus seen,

certainly there arises a doubt with regard to

correct age of PW22. And this benefit should be

available to the accused. For this reason, we don't

find good reason to interfere with the judgment of

the trial court. Appeal is therefore dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

CKL/KMV