Yuvaraja Naika vs State Of Karnataka
2023 Latest Caselaw 6924 Kant

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                                                              NC: 2023:KHC:35862
                                                          CRL.A No. 1835 of 2019




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 4TH DAY OF OCTOBER, 2023

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL No. 1835 OF 2019
                      BETWEEN:

                           YUVARAJA NAIKA
                           S/O CHANDYA NAIKA
                           AGED ABOUT 25 YEARS
                           TAILOR, R/O VADDIGERE THANDA
                           SHIKARIPURA TALUK - 577 427.
                                                                 ...APPELLANT

                      (BY SRI MOHAMMED PASHA, ADVOCATE)

                      AND:

                      1.   STATE OF KARNATAKA
                           BY RURAL POLICE STATION
                           SHIKARIPURA
Digitally signed by
LAKSHMINARAYANA
                           REP. BY ITS STATE PUBLIC PROSECUTOR
MURTHY RAJASHRI            HIGH COURT OF KARNATAKA
Location: HIGH
COURT OF                   BANGALORE - 01.
KARNATAKA


                      2.   SMT.YASHODHA BAI
                           W/O PARMESH NAIK
                           AGED ABOUT 45 YEARS
                           VADDIGERE THANDA
                           SHIKARIPURA TALUK
                           SHIVAMOGGA, KARNATAKA.
                                                                 ...RESPONDENTS

                      (BY SRI M DIVAKAR MADDUR, HCGP FOR R1
                       R2 SERVED AND UNREPRESNTED)

                           THIS CRL.A IS FILED U/S 374(2) OF CR.P.C. PRAYING TO
                      SET ASIDE THE JUDGMENT OF CONVICTION DATED 31.08.2019
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                                         NC: 2023:KHC:35862
                                    CRL.A No. 1835 of 2019




AND ORDER OF SENTENCE DATED 07.09.2019 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL
JUDGE, SHIVAMOGGA IN SPL.C.No.74/2018 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(2),(f),(i),(n)
AND 450 OF IPC AND SECTION 6 OF POCSO ACT 2012 AND
ETC.,

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

                        JUDGMENT

1. This appeal is filed against the judgment of conviction

and order of sentence dated 31.08.2019 passed in Special

Case No.74/2018, by the I Additional District and Sessions

Judge and special Judge, Shivamogga, convicting the

appellant - accused for the offences under Sections

376 (2) (f), (i) and (n) and 450 of the Indian Penal Code,

1860 (for short hereinafter referred to as 'IPC') and Section

6 of the Protection of Children from Sexual Offences Act,

2012 (for short hereinafter referred to as 'POCSO Act') and

sentencing to undergo rigorous imprisonment for a period

of ten years and to pay fine of Rs.30,000/-, in default

to undergo simple imprisonment for a term of one year, for

the offences under Section 6 of the POCSO Act r/w Section

376 (2) (f) (i) and (n) of IPC and further sentenced to

NC: 2023:KHC:35862 CRL.A No. 1835 of 2019

undergo imprisonment for a period of three years and to

pay fine of Rs.5,000/- in default, to undergo simple

imprisonment for a period of six months for the offence

under Section 450 of IPC. The Trial Court has ordered that

that all the sentences to run concurrently and given the

benefit of set off under Section 428 of Cr.P.C.

2. The factual matrix of the case is that; PW1 - the victim

girl who is aged 16 years is the daughter of PW2. The

appellant - accused is the brother's son of CW3 - father of

the victim girl and he is a Tailor by profession. The

appellant - accused and the victim girl are the relatives and

they were neighbours. The appellant - accused used to

tease the victim girl while she was going to college. Six

months back to 25.11.2017, the victim girl left her college

and she was at home. The appellant - accused used to visit

the house of the victim girl and used to touch her body.

The victim girl has not resisted the act of the accused, as he

was her relative. On 05.03.2017 at 12.30 pm., the

appellant - accused entered the house of the victim girl. At

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that time, nobody was there in the house and the victim girl

was watching the television alone in the house. The

appellant - accused with sexual intent, touched her body,

teased her and latched the main door of the house, even

after resistance, had forcible sexual intercourse with the

victim girl in the middle room of her house. After the said

act, the appellant - accused threatened the victim girl not

to inform the incident to anybody, stating that he will

damage her honour. One week later, when there was

nobody in the house, the appellant - accused came to the

house of the victim girl and again he committed forcible

sexual intercourse on the victim girl and thereafter,

threatened that, if she informs the incident to anybody, he

will not leave her. Fifteen days later, the appellant -

accused again committed forcible sexual intercourse on the

victim girl. Due to the sexual assault by the appellant -

accused, the victim girl became pregnant. On 23.11.2017

at 9.00 pm, the victim girl got stomach pain and at that

time, mother of the victim girl gave the tablet to her and

the pain was not subsided. Therefore, the family members

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of the victim girl took her to Begur Government Hospital

and further shifted to Government Hospital, Shikaripura. On

the advice of the doctor at Government Hospital,

Shikaripura, she was shifted to Mc.Gann Hospital,

Shivamogga and thereafter, she was shifted to Usha

Nursing Home, Shivamogga. On 25.01.2017, while the

victim was shifting to Usha Nursing Home, she delivered a

female child at 7.50 am., in front of the said hospital. The

victim girl and the child have been admitted to Usha

Nursing Home for medical treatment. The doctor at Usha

Nursing Home informed the incident to the police and

Woman and Child Welfare Committee. On enquiry by the

mother of the victim girl in the said hospital, the victim girl

informed the incident to her mother. The police and the

Child Protection Officers visited Usha Nursing Home and

recorded the statement of mother of the victim girl and also

the victim girl and thereafter, the victim girl and the child

were shifted to Mc.Gann Hospital for further treatment.

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3. On the basis of the said statement, the police

registered a case against the appellant - accused and after

investigation, the police filed the charge sheet for the

offences under Sections 450, 506, 376(2)(f), (i) and (n) of

IPC and Section 6 of the POCSO Act. The Trial Court

framed the charges for the said offences.

4. The prosecution examined 11 witnesses as PWs.1 to

11 and got marked the documents as Exs.P1 to P19. The

statement of the appellant - accused has been recorded

under Section 313 of Cr.P.C.

5. After hearing the arguments on both sides, learned

Trial Judge has formulated the points for consideration and

convicted the appellant - accused for the offences as noted

above. The appellant - accused has challenged the said

judgment of conviction in this appeal.

6. Heard learned counsel for the appellant and learned

High Court Government Pleader for the respondent - State.

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7. Learned counsel for the appellant would contend that

the alleged incident has taken place during March, 2017 and

the victim girl has not filed complaint till she gave birth to a

child on 25.11.2017. Even the parents of the victim girl

have not filed any complaint against the appellant -

accused. Even though the appellant - accused had love

affair with the victim girl, he had not taken such a defence

to protect the honour of the victim girl. The statement of

the victim girl has been recorded by the A.S.I as per Ex.P1.

As per Section 24(1) of the POCSO Act, the statement of

the victim girl has to be recorded by the P.S.I and above

rank officers.

8. He further contended that the appellant - accused

visited the house of the victim girl and had forcible sexual

intercourse on several occasions. Inspite of that, the victim

girl has not chosen to file any complaint against the

appellant - accused and even the victim girl has not stated

regarding the incident to her family members. The very

aspect that the victim girl and her parents have told the

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doctor - PW5 not to treat the child after delivery, itself

shows that they did not want to take any action against

anybody. The alleged date of incident ie., 05.03.2017 is

Sunday and the siblings of the victim girl were in the house

and the victim girl stating that they had gone to school is

not correct. The victim girl has stated that the appellant -

accused gave her threat that he would stop the marriage of

her elder sister, but as per her evidence itself, the marriage

of her sister was already over prior to the incident. The

Trial Court itself has held that there is no threat even by the

appellant - accused and acquitted the appellant - accused

for the offence under Section 506 of IPC. The appellant -

accused, victim girl and her parents were in good terms and

this appellant - accused also went to the hospital while

taking the victim girl to the hospital.

9. He further contended that the victim girl was studying

in 1st PUC as stated by her in her evidence, but the

prosecution has not produced her SSLC marks card or her

birth certificate. Even the prosecution has not sent the

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victim girl for ossification test to ascertain her age. Ex.P8 is

the school letter issued by PW2 - Head Master, wherein her

date of birth is mentioned as 16.08.2001. But PW4 in his

cross examination has stated that based on the statement

of Anganwadi teacher, her date of birth is mentioned in her

school records. Therefore, the prosecution has not

established that the victim is a child to attract the offence

under the POCSO Act.

10. Learned counsel for the appellant - accused has

further argued that the blood samples collected for the DNA

test has been sent on the next day and there is no evidence

as to how the blood samples have been stored. He further

argued that the Police Constable who carried the blood

samples for DNA examination has not been examined.

11. He further argued that the prosecution has not proved

the age of the victim girl and considering the silence of the

victim girl in not making any complaint even after she

becoming pregnant itself shows that it is a consensual sex.

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With this, he prayed to allow the appeal and acquit the

appellant - accused.

12. Per contra, learned High Court Government Pleader

would contend that the evidence of PW1 - victim girl and

her mother would clearly establish the forcible sexual

intercourse of this appellant - accused on the victim girl

and giving threat to her not to disclose the same to

anybody. The evidence of PWs.3 and 5 establish that the

victim girl gave birth to a child. The evidence of PW11 and

report - Ex.P19 establish that the appellant - accused is the

biological father of the child born to the victim girl and that

itself establishes the act of forcible sexual intercourse by

this appellant - accused on the victim girl. The evidence of

PW4 and Ex.P8 - certificate establishes the age of the

victim girl. Considering all these aspects, the Trial Court

has rightly held that the appellant - accused has committed

the offence. With this, he prayed to dismiss the appeal.

13. Having heard learned counsel for the appellant and

learned High Court Government Pleader and considering the

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points urged and the grounds made out, the following

points would arise for consideration;

(i) Whether the prosecution has established that the victim girl is a child and the appellant - accused has committed the offence under Section 6 of the POCSO Act?

(ii) Whether the Trial Court has erred in convicting the appellant - accused for the offence under Sections 376 and 450 of IPC?

14. My answer to point No.(i) is in the negative and point

No.(ii) is in partly affirmative, for the following reasons;

In order to attract offence under the POCSO Act, the

prosecution has to establish that the victim girl is a child as

defined under Section 2(1)(d) of the POCSO Act. As per

Section 2(1)(d) of the POCSO Act, a child means any

person below the age of eighteen years. In order to

ascertain whether the prosecution has proved whether the

victim girl is a child or not, it is necessary to consider the

following provisions of law.

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9. Section 34 of the POCSO Act reads as follows:

34. Procedure in case of commission of offence by child and determination of age by Special Court.-(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub- section (2) was not the correct age of that person."

15. In view of Section 34(1) of the POCSO Act, Section 94

of Juvenile Justice Act (Care and Protection of Children) Act,

2000 (for short hereinafter referred to as 'JJ Act') becomes

relevant and applicable. Therefore the same is extracted

and it reads as under:

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"94. Presumption and determination of age. -(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any

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other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

16. It is evident from a conjoint reading of the above

provisions that to resolve whatever dispute with respect to

the age of a person that arises in the context of her or him

being a victim under the POCSO Act, the Courts have to

take recourse to the steps indicated in Section 94 of the JJ

Act. The three documents in the order of which the JJ Act

requires consideration is that the concerned Court has to

determine the age by considering the following documents:

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

17. Section 94 of the JJ Act clearly indicates that the date

of birth certificate from the school or the matriculation or

equivalent certificate from the concerned examination

Board has to be firstly preferred in the absence of which

date of birth certificate issued by a Corporation or Municipal

Authority or a Panchayat can be considered and it is only

thereafter, in the absence of these documents, age is to be

determined through 'ossification test' or `by any other

latest medical age determination test conducted on the

orders of the concerned authority, i.e., Committee or the

Board or Court'.

18. In the present case, only a certificate - Ex.P8 and not

the date of birth certificate or matriculation or equivalent

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certificate was considered. Ex.P8 has been issued by PW4 -

Head Master of Government Primary school, Begur. PW4 -

Head Master has deposed that based on the Admission

Register, he has issued Ex.P8 and mentioned the date of

birth of the victim girl in it. PW4 has not stated as to what

is the basis for mentioning the date of birth of the victim

girl in her Admission Register. PW4 in his cross examination

has admitted that based on the information given by the

Anganwadi Teacher, date of birth of the victim girl has been

mentioned in her school records. What is the basis for

Anganwadi Teacher to state the date of birth of the victim

girl has not been produced. Therefore, Ex.P8 and the

evidence of PW4 does not establish the age of the victim

girl as required under Section 94 of the JJ Act. Ex.P8 is not

the date of birth certificate from the School.

19. As per the case of the prosecution, the victim girl was

studying in 1st PUC. That means, she has studied

matriculation. The Investigating Officer has not collected

her matriculation marks card or equivalent certificate from

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the concerned examination Board to establish the age of

the victim girl. Even the birth certificate given by the

Corporation or the Municipal Authority or the Panchayath

has been produced. Even, no ossification test has been

conduced to determine the age of the victim girl.

Therefore, the Trial Court could not have placed reliance on

Ex.P8 to hold that the victim girl was below 18 years at the

time of commission of offence.

20. The Hon'ble Apex Court in the case of

P. Yuvaprakash Vs. State by Inspector of Police

reported in 2023 INSC 626, after considering the

provisions of Section 34 of the POCSO Act, Section 94 of

the JJ Act, and the decisions of the Hon'ble Apex Court in

the case of Rishipal Singh Solanki Vs. State of Uttar

Pradesh reported in 2021 (12) SCR 502, Sanjeev

Kumar Gupta Vs. The State of Uttar Pradesh and

others, reported in 2019 (9) SCR 735 and Abuzar

Hossain @ Gulam Hossain Vs. State of West Bengal

reported in 2012 (9) SCR 224 has observed thus:

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"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchyat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of JJ Act. ... ... ... "

21. The document produced ie., certificate - Ex.P8 based

on the Admission Register is not what Section 94(2)(i) of

the JJ Act mandates and they are not in accordance with

Section 94(2)(ii) of the JJ Act. In these circumstances, only

piece of evidence accorded under Section 94 of the JJ Act

was medical ossification test. The said ossification test has

not been conducted. Therefore, under these circumstances,

there is no material on record to establish that date of birth

of the victim girl as per Section 94(2) of the JJ Act and the

prosecution has failed to establish that the victim girl was a

child as defined under Section 2(1)(d) of the POCSO Act.

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22. PW1 is the victim girl and in her testimony, she has

stated that on 05.03.2017, when she was alone in the

house, the appellant - accused came to her house at about

12.30 pm and latched the door, inspite of her resistance, he

had forcible sexual intercourse on her and threatened her

not to disclose the same to her parents, otherwise he will

kill her parents. She further deposed that one week

thereafter, again he did the same act and thereafter, after

15 days, he again did the same act upon her. At that time,

he threatened that he would stop the marriage of her sister,

if she discloses the same to anybody.

23. The further evidence of PW1 reveal that she got

stomach pain during November, 2017 and the doctors who

examined her in Shikaripura and Shivamogga told that she

is pregnant and she gave birth to a female baby. She has

deposed that due to the act of this appellant - accused, she

became pregnant and gave birth to a child. She has also

deposed that on 18.01.2018, she was taken to the Court,

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where blood samples of herself and her child have been

collected for DNA test.

24. The evidence of PW3 - doctor who examined the victim

girl in Shivamogga Institute of Medical sciences and the

evidence of PW5 - doctor who treated the victim girl in

Usha Nursing Home, establish that the victim girl gave birth

to a female child. Merely because the victim girl did not

disclose the above incident to her family members or any

other members for a long duration of nearly eight months,

does not establish that she gave consent for sexual

intercourse with the appellant - accused. As there was

threat given by the appellant - accused to the victim girl,

she did not disclose the above incident to anybody.

25. The evidence of PW10 - Investigating Officer reveal

that he secured the victim girl, child and the appellant -

accused and deposed regarding collection of blood samples

for DNA test and sending the same for DNA Examination.

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26. The evidence of PW11 and DNA Test report - Ex.P19

would establish that the appellant - accused is the

biological father of the child born to the victim girl.

27. Learned counsel for the appellant has argued regarding

collection of the blood samples and sending the same by

the prosecution on the next day. But, no cross examination

is made in that regard by the counsel for the appellant -

accused, either to PW10 or to PW11. It is not the defence

of the appellant - accused that there was a love affair

between him and the victim girl and the sexual intercourse

is consensual.

28. The evidence on record clearly establishes the offence

of forcible sexual intercourse on the victim girl by the

appellant - accused and it establishes the offence under

Section 375 punishable under Section 376(1) of IPC. The

act of the appellant - accused entering the house of the

victim girl in order to commit the offence punishable with

imprisonment for life attracts the offence under Section 450

of IPC.

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29. The punishment provided under Section 376(1) of IPC is

rigorous imprisonment of either description for a term which

shall not be less than seven years, but which may extend to

imprisonment for life and shall also be liable to fine.

30. Considering the facts and circumstances of the case and

the age of the appellant - accused, minimum sentence ie.,

imprisonment for seven years requires to be imposed on

him. The conviction of the appellant - accused and

sentence for the offence under Section 450 of IPC, requires

to be affirmed. In the result, following;

ORDER

(i) The appeal is allowed in part. The conviction of

the appellant - accused for the offence under Section

6 of the POCSO Act and Section 376(2)(f)(i) and (n)

of IPC is set-aside.

(ii) The appellant - accused is convicted for the

offence under Section 376(1) of IPC and sentenced

to undergo rigorous imprisonment for a period of

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seven years and to pay fine of Rs.30,000/-, in

default of payment of fine, to further undergo simple

imprisonment for a term of one year.

(iii) The conviction and sentence for the offence

under Section 450 of IPC is affirmed. Both the

sentences to run concurrently.

(iv) The appellant - accused is entitled for set off

under Section 428 of Cr.P.C.

(v) Award of compensation out of the fine amount to

PW1 is affirmed.

Sd/-

JUDGE

GH