Sri. Mahesh @ Mayi vs State Of Karnataka
2023 Latest Caselaw 6737 Kant

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                                                             NC: 2023:KHC:34645
                                                         CRL.A No. 1592 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 23RD DAY OF SEPTEMBER, 2023

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL No. 1592 OF 2022
                      BETWEEN:

                            SRI. MAHESH @ MAYI
                            S/O DODDAMADE GOWDA
                            AGED ABOUT 28 YEARS
                            R/AT HONNALLI VILLAGE,
                            CHAMARAJANAGAR TALUK
                                                                   ...APPELLANT

                      (BY SMT. GEETHA MISRA, ADVOCATE)

                      AND:

                      1.    STATE OF KARNATAKA
                            BY CHAMARAJANAGAR RURAL POLICE STATION
                            CHAMARAJANAGAR DISTRICT
                            REPRESENTED BY THE
                            STATE PUBLIC PROSECUTOR
                            HIGH COURT OF KARNATAKA
Digitally signed by         HIGH COURT BUILDING
LAKSHMINARAYANA
MURTHY RAJASHRI             BENGALURU - 560 001.
Location: HIGH
COURT OF
KARNATAKA             2.    MRS. KOMALA
                            W/O SHEKERE GOWDA ( LATE)
                            M/O THE VICTIM GIRL
                            HONNAHALLI GRAMA
                            CHAMARAJANAGARA TALUK.
                                                                ...RESPONDENTS

                      (BY SRI RANGASWAMY R, HCGP FOR R1
                       R2 SERVED AND UNREPRESENTED)

                           THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
                      ASIDE THE JUDGMENT OF CONVICTION AND ORDER ON
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                                     NC: 2023:KHC:34645
                                 CRL.A No. 1592 of 2022




SENTENCE DATED 19.04.2022 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGAR AND
SPECIAL JUDGE FOR POCSO ACSES IN SPL.C.No.180/2019,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S OF IPC, SECTION OF POCSO ACT R/W 376 OF IPC AND
SECTION 6 OF POCSO ACT R/W 376 OF IPC AND SECTION 9 OF
PROHIBITION OF CHILD MARRIAGE ACT AND SECTION 12 OF
POCSO ACT AND ETC.

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

                     JUDGMENT

This appeal is filed against the judgment of

conviction and order of sentence dated 19.04.2022

passed in Spl.C.No. 180/2019 by the Principal District

and Sessions Judge, Chamarajanagar convicting the

appellant - accused for offence under Sections 366 of

IPC, Sections 4 and 6 of POCSO Act read with Section

376 of IPC, Section 9 of Prohibition of Child Marriage

Act and Section 12 of the POCSO Act and sentencing

to undergo simple imprisonment for a period of 5

years and to pay fine of Rs.10,000/- for offence under

Section 366 of IPC; sentenced to undergo simple

imprisonment for a period of 20 years and to pay fine

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

Act read with Section 376 of IPC; sentenced to

undergo rigorous imprisonment for a period of 20

years and to pay fine of Rs.10,000/- for offence under

Section 6 of POCSO Act read with Section 376 of IPC;

sentenced to undergo simple imprisonment for a

period of 1 year and to pay fine of Rs.5,000/- for

offence under Section 12 of POCSO Act and

sentenced to undergo simple imprisonment for a

period of 2 years for offence under Section 9 of

Prohibition of Child Marriage Act.

2. Factual matrix of the case is that P.W.4 -

father of the victim girl filed a complaint on

18.03.2019 as per Ex.P.13 stating that his elder

daughter aged about 15 years had not returned home

after she left the house on 17.03.2019 at 06.30 am

and inspite of search, she was not traced. It is further

stated that he has got suspicion that his daughter -

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victim girl must have eloped with the appellant -

accused and prayed for tracing her. Said complaint

came to be registered in crime No.71/2019. On

28.03.2019 the appellant - accused and victim girl

were produced before P.W.18 - PSI. Statement of the

victim girl has been recorded. Based on the said

statement of the victim girl (Ex.P.3) P.W.18 gave

requisition to the Court as per Ex.P.26 to insert

Sections 376, 363 of IPC and Sections 4 and 6 of the

POCSO Act. Thereafter, after completing investigation

charge sheet came to be filed for offence under

Sections 363, 376(i)(n) of IPC, Sections 4, 6 and 12 of

the POCSO Act and Sections 9 and 10 of the

Prohibition of Child Marriage Act. Prosecution

examined 23 witnesses as P.W.1 to P.W.23 and got

marked Ex.P.1 to Ex.P.33 and material objects M.O.1

to M.O.8. Statement of the appellant - accused under

Section 313 of Cr.P.C. was recorded. After hearing

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arguments on both the sides the trial Court formulated

points for consideration and convicted the appellant -

accused for the aforesaid offences. Said judgment of

conviction and order of sentence has been challenged

in this appeal.

3. Heard learned counsel for appellant - accused

and learned HCGP for respondent - State.

4. Learned counsel for appellant - accused would

contend that the sentence passed by the trial Court is

not in accordance with law. The offence is alleged to

have taken place during March 2019 and the trial

Court taking into consideration the amended

provisions of the POCSO Act, as amended by Act No.

25/2019 (with effect from 16.08.2019) has imposed

the sentence and committed an error in that regard.

Age of the victim girl has not been proved as required

under Section 34 of the POCSO Act and Section 94 of

the Juvenile Justice (Care and Protection of Children)

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Act, 2015 (hereinafter referred to as the JJ Act). On

that point learned counsel placed reliance on the

decision of the Hon'ble Apex Court in the case of P.

Yuvaprakash Vs. State by Inspector of Police

reported in 2023 INSC 626. Ex.P.21 and Ex.P.22 are

not the date of birth certificates issued by the school

authorities. The victim girl has stated that there are

two dates of birth in her statement recorded under

Section 164 of Cr.P.C. (Ex.P.9). Therefore, the

prosecution has failed to prove that the victim girl is a

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

5. She contended that in the complaint given by

the father of the victim girl (Ex.P.13) there is a

mention that he has suspicion that the victim girl

might have gone with the appellant - accused. The

Doctor who examined the victim girl in her report

(Ex.P.15) has noted the history given by the victim

girl that she had eloped with the appellant - accused

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and she opined that the victim girl had consensual

sexual intercourse. The victim girl in her statement

(Ex.P.3) has stated that she asked the appellant -

accused over phone that she is ready and where she

has to come and that very aspect goes to show that

she voluntarily went with the appellant - accused on

his motorcycle. On looking to the entire evidence of

the victim girl it is clear that she is not a sterling

witness and on that point learned counsel placed

reliance on the decision of the Hon'ble Apex Court in

the case of Rai Sandeep @ Deepu Vs. State of

NCT, Delhi, reported in 2012 (8) SCC 21 wherein

the Hon'ble Apex Court has held that sterling witness

should be of a very high quality and caliber whose

version should be unassailable. The prosecution has

not established foundational facts to raise a

presumption under Section 29 of the POCSO Act. The

learned counsel further contended that the Courts

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cannot convict the accused persons on suspicion or on

moral conviction as observed by the Hon'ble Apex

Court in the case of Mousam Singha Roy Vs. State

of West Bengal reported in 2003 (12) SCC 377.

The offence alleged against the appellant - accused is

a serious offence and therefore stricter view is

required. P.W.1 and P.W.2 in their cross-examination

have admitted that the appellant - accused and victim

girl had love affair and it was told to them by the

victim girl. The father of the victim girl (P.W.4) and

mother of the victim girl (P.W.5) have admitted in

their cross examination that there was enmity

between them and the appellant - accused with regard

to some criminal case and they were not in talking

terms even as on the date of the alleged offence. The

very fact that the victim girl went on the motorcycle of

the appellant - accused without making hue and cry

and traveled with the appellant - accused in public

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transport itself shows that she voluntarily went with

the appellant - accused. Therefore, she concluded that

the prosecution has failed to prove that the victim girl

is a child and the evidence on record will establish that

the victim girl voluntarily went along with the

appellant - accused and sexual intercourse by this

appellant - accused on the victim girl is consensual

and therefore, it does not establish any of the offences

alleged against appellant - accused. On these grounds

she prayed to allow the appeal and acquit the

appellant - accused of the charges leveled against

him.

6. Per contra, learned HCGP appearing for the

respondent - State has argued that Ex.P.21, Ex.P.22

and evidence of P.W.15 establishes that the date of

birth of the victim girl is 15.09.2004 and the same

date of birth is also stated by the victim girl in her

evidence and it has not been denied by the victim girl

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in the cross-examination. The victim girl in her

evidence has deposed that this appellant - accused

was forcing her to love him by threatening to consume

poison and inspite of she resisting, he tied thali and

had sexual intercourse for 3 to 4 days. Evidence of the

Doctor (P.W.14) who examined the victim girl

establishes that the hymen of the victim girl was

ruptured. Appellant - accused was capable of

performing sexual intercourse as per the report

Ex.P.19 issued by the Doctor (P.W.23). Learned HCGP

argued that the trial Court on proper appreciation of

the evidence on record has rightly convicted the

appellant - accused. He has supported the reasoning

assigned by the trial Court. On these grounds he

sought for dismissal of the appeal.

7. On the grounds made out and considering the

arguments advanced, the following point arises for my

consideration:

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Whether the trial Court has erred in convicting the appellant - accused for the offence under Sections 366, 376 of IPC, Sections 4, 6 and 12 of the POCSO Act and Section 9 of Prohibition of Child Marriage Act?

8. My answer to the above point is in the

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 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.

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

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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."

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

Section 94 of JJ Act becomes relevant and applicable.

Therefore the same is extracted and it reads as under:

"94. Presumption and determination of age. -(1) Where, it is obvious to the

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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 other latest medical age

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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."

11. 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:

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

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

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'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'.

12. In the present case only `±Á¯Á GzÀÞgÀuÁ ¥Àæw'

(shalla uddarana prati) (Ex.P.21) and school certificate

(Ex.P.22) and not the date of birth certificate or

matriculation or equivalent certificate was considered.

zÁR¯Áw GzÀÞgÀuÁ ¥Àæw (daakhalati uddarana prati) has been

issued by the Head Master of JSS High School,

Arakalavadi and it has been issued on 13.05.2019. As

per Ex.P.21 the victim girl came to be admitted to the

said school on 06.06.2018 and earlier she was

attending the Government Higher Primary school,

Honnahalli, till 8th standard and the date of birth of the

victim girl is mentioned as 15.09.2004 and the date

of her admission to the said High School is

06.06.2018. Ex.P.22 is the school certificate issued by

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the JSS High School, Arakalavadi, wherein also date of

birth is mentioned as 15.09.2004 and date of

admission is mentioned as 06.06.2018 and it has been

issued by the Head Master of JSS High School,

Arakalavadi on 19.03.2019. P.W.15 - teacher in JSS

High School has stated in his evidence that he had

worked as the Head Master in the said School and he

had issued Ex.P.21 and one Basavanna earlier Head

Master had issued Ex.P.22 and as per their records

date of birth of the victim girl is 15.09.2004. In the

cross-examination he has stated that the date of birth

of the victim girl has been mentioned in their school

records on the basis of the TC issued by the Primary

School and he do not know on what basis the date of

birth is mentioned in the TC of the Primary School.

The documents produced at Ex.P.21 and Ex.P.22 do

not answer the description of any of the class of

documents mentioned in Section 94(2)(i) of the JJ Act

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as they were issued based on the TC issued by the

Primary School. Therefore, the trial Court could not

have placed reliance on those documents to hold that

the victim girl was below 18 years at the time of

commission of offence. The trial Court placed reliance

on Rule 12 of the Juvenile Justice (Care and Protection

of Children) Rules. The trial Court placed reliance on

the decision of the Hon'ble Apex Court in the case of

State of M.P. Vs. Anoop Singh wherein it is

observed as under:

"12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape, Rule 12(3) reads as under:

Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the

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court or the Board or, as the case may be, the Committee by seeking evidence by obtaining

(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 a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age

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and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

13. As per Rule 12(3)(ii) date of birth certificate from

the school (other than a play school) first attended can be

taken into consideration in the absence of matriculation or

equivalent certificate. Ex.P.21 and Ex.P.22 are not the

date of birth certificates from the school first attended by

the victim girl. The trial Court has erred in placing reliance

on Ex.P.21 and Ex.P.22 stating that they are the date of

birth certificates issued by the school first attended by the

victim girl. In Ex.P.21 and Ex.P.22 there is specific

mention that the victim girl has studied upto 8th standard

in Government Higher Primary School, Honnahalli and she

came to be admitted to JSS High School, Arakalavadi on

06.06.2018 for 9th standard. There is no matriculation or

equivalent certificate as the victim girl has not studied

matriculation. There is no birth certificate issued by the

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Corporation or Municipal Authority or Panchayath as the

Investigating Officer has not collected any such

documents. The evidence on record does not reveal that

any ossification test was conducted to ascertain the age of

the victim girl. 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 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:

"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

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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. ........."

14. Even the victim girl in her statement recorded

under Section 164 of Cr.P.C. (Ex.P.9) has stated two dates

of birth as 15.09.2004 and 15.02.2004 (as per Aadhar

card). The parents of the victim girl who are examined as

P.W.4 and P.W.5 have not stated the date of birth of the

victim girl. The documents provided, i.e., ±Á¯Á GzÀÞgÀuÁ ¥Àæw,

(shaala uddarana prati) extract of admission register are

not what Section 94(2)(i) 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 the medical ossification test.

Said ossification test has not been conducted. Therefore,

under these circumstances there is no material on record

to establish the date of birth of the victim girl as per

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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.

15. P.W.4 - father of the victim girl has filed a

complaint as per Ex.P.13. In Ex.P.13 father of the victim

girl suspected that the victim girl might have gone with

the appellant - accused. In Ex.P.3 - statement of the

victim girl recorded by the Police the victim girl herself has

stated that on 17.03.2019 at 06.15 am she made a phone

call to the appellant - accused from the mobile phone in

her house to the mobile phone of the appellant - accused

and told him that she was ready and asked him where she

has to come and he told her to come near Basavanagudi

temple and that he will be ready on motorcycle. At that

time her mother was taking bath and without informing

anybody in the house she went out of the house and the

appellant - accused was waiting on red colour motorcycle

by keeping in start mode and she sat on the motorcycle

and went with him. Said aspect itself clearly goes to show

that the victim girl voluntarily went with the appellant -

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accused on his motorcycle. The victim girl traveled on the

motorcycle of the appellant - accused and also traveled

with him in public transport and has not made any hue

and cry. P.W.14 - the Doctor who examined the victim girl

issued report as per Ex.P.15. In Ex.P.15 in the history it is

mentioned that the victim girl eloped with the appellant -

accused and got married him and stayed in Bengaluru in

his relative's house and had consensual intercourse with

him on 3 dates. The Doctor noted that her hymen is torn

and opined that she had 'consensual intercourse however

sexual violence cannot be ruled out.'

16. P.W.1 and P.W.2 in their cross-examination have

stated that the victim girl and the appellant - accused

stayed in their house and when they enquired with the

victim girl she told them that she is in love with the

appellant - accused and married him in a temple and when

she told the same them there was no fear on her face.

Even the victim girl in her cross-examination has stated

that they were staying in the house of P.W.1 and P.W.2,

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they came on 26.03.2019 and asked the appellant -

accused as to who is this girl and at that time he told that

the girl belongs to their community and they are in love

and as their family members did not agree, he married her

and brought her. The victim girl at that time had not

objected to the said statement made by the appellant -

accused before P.W.1 and P.W.2. Therefore, said aspects

goes to show that the victim girl had a love affair with the

appellant - accused and she voluntarily went along with

him on his motorcycle and stayed in the house of P.W.1

and P.W.2 and had consensual intercourse with the

appellant - accused. As the sexual intercourse is

consensual, it does not attract Section 375 of IPC.

17. As the prosecution has failed to prove that the

victim girl is a child, offence under the POCSO Act are not

attracted so also provisions under Section 9 of Prohibition

of Child Marriage Act. Considering all these aspects, the

trial Court has erred in holding that the prosecution has

established that the appellant - accused has committed

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the offence alleged against him. In view of the above, the

judgment of conviction and order of sentence requires to

be set aside.

18. In the result, the following;

ORDER

Appeal is allowed. The judgment of conviction and

order of sentence dated 19.04.2022 passed in Spl.C.No.

180/2019 by the Principal District and Sessions Judge,

Chamarajanagar is set aside. The appellant - accused is

acquitted for the offence under Sections 366 and 376 of

IPC, Section 4, 6 and 12 of POCSO Act and Section 9 of

Prohibition of Child Marriage Act. Fine amount, if any, paid

by the appellant - accused is ordered to be returned to the

appellant - accused.

Sd/-

JUDGE

LRS