Karnataka High Court
Somashekar S/O Rayappa Yalurotti And ... vs The State Of Karnataka Through on 1 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 Crl.A.No.200064/2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200064 OF 2017 (374 )
BETWEEN
1. SOMASHEKAR S/O RAYAPPA YALUROTTI
AGE: 19 YEARS, OCC: STUDENT
2. DEVAPPA @ DEVINDRAPPA
S/O BHEEMARAYA YELUROTTI
AGE: 20 YEARS, OCC: STUDENT
3. BASAVARAJ S/O HANMANTH BANTANOOR
AGE: 19 YEARS, OCC: STUDENT
ALL R/O MANGALOOR, TQ. SURPUR
DIST. YADGIRI
...APPELLANTS
(BY SRI S.B. SANGOLGI, ADVOCATE)
AND
THE STATE OF KARNATAKA THROUGH
SHORAPUR POLICE STATION
DIST. YADGIRI
(REPRESENTING BY LEARNED ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH)
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
2 Crl.A.No.200064/2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C. PRAYING TO, ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT OF CONVICTION PASSED ON 06.04.2017 IN SPL.
CASE (POCSO) NO.50/2016 BY THE SESSIONS JUDGE, YADGIRI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the accused challenging the
judgment of conviction and order of sentence passed by the
Sessions Judge, Yadgiri in Special Case (POCSO) No.50/2016
dated 06.04.2017 for the offences punishable under Sections
376, 511 354A(i) and (ii), 504, 506 read with Section 34 of
IPC and under Section 8 of the POCSO Act.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them before
the Trial Court.
3. The brief factual matrix leading to the case are
as under:
That on 30.01.2016 near the cross of Devalgudda at
about 12 in the noon when the victim was return after
completing her computer classes at Sri Basaveshwar
Computer School by getting down from the bus at Timmapur
cross, accused No.1 called her from behind and asked her to
sleep and the accused caught hold of her hands and dragged
her and attempted to commit sexual assault on her. It is also
asserted that they have also touched her body and outraged
her modesty and when she cried, they threatened her with
dire consequences. After hearing her cry, Paramanna who
was the worker of the garage and the mother of the victim
Mahadevi rushed to the spot and on seeing them, the
accused ran away from the spot leaving the victim girl. Then,
the victim girl went to the house and after return of her
father, she narrated the incident and then, filed the
complaint before the Shorapur police. On the basis of the
complaint, a case was registered by the Shorapur police and
after investigating the matter, the charge-sheet came to be
filed for the offences punishable under Sections 376, 511
354A(i) and (ii), 504, 506 read with Section 34 of IPC and
under Section 8 of the POCSO Act. After submission of the
charge-sheet, the learned Sessions Judge has taken the
cognizance of the offences and meanwhile the accused were
arrested and were enlarged on bail. They were represented
by their counsel and prosecution papers were furnished to
them. The charge was framed against the accused and same
was read over and explained to them and they pleaded not
guilty.
4. To prove the guilt of the accused, the
prosecution has examined in all ten witnesses as P.W.1 to
P.W.10 and relied on eight documents marked at Exs.P.1 to
P.8. Then the statement of the accused under Section 313 of
Cr.P.C. is recorded to enable the accused to explain the
incriminating evidence appearing against them in the case of
the prosecution. The case of the accused is of total denial
and they did not choose to lead any oral and documentary
evidence in support of their defence.
5. After hearing the arguments and after perusing
the oral and documentary evidence, the learned Sessions
Judge has acquitted the accused for the offences punishable
under Sections 376, 511 and 506 read with Section 34 of
IPC. However, he has convicted the accused/appellants for
the offence punishable under Section 8 of the POCSO Act and
under Section 354A read with Section 34 of IPC by imposing
imprisonment and fine for the offences under Sections 354A
of IPC and 8 of the POCSO Act.
6. Being aggrieved by this judgment of conviction
and order of sentence, the accused are before this Court by
way of this appeal.
7. Heard the arguments advanced by the learned
counsel for the appellants/accused and the learned High
Court Government Pleader for the respondent/State. Perused
the records.
8. The learned counsel for the appellants/accused
would contend that the alleged incident is said to have taken
place at 12 in the noon on road and it is practically
impossible to believe that there was an attempt on victim to
rape her on a public road. He would also assert that P.W.2 is
the mother of the victim and her present at the spot itself
creates doubt and P.W.7 is the other interested witness. He
would assert that there are no other eyewitnesses and the
witnesses examined were relatives. He would contend that
the evidence lead by the prosecution do not inspire
confidence of the Court and the ingredients of the offences
under Section 8 of the POCSO Act as well as Section 354A of
IPC are not substantiated by the prosecution. Hence, the
would contend that the learned Sessions Judge on the self-
interested testimony of victim and her relatives proceeded to
convict the accused/appellants which resulted in miscarriage
of justice. As such, he would seek for allowing the appeal by
setting aside the judgment of conviction and order of
sentence by acquitting the appellants.
9. Per contra, the learned High Court Government
Pleader would support the judgment of conviction and order
of sentence passed by the learned Sessions Judge. He would
contend that P.W.1 is the victim and P.W.2 and 7 are the
eyewitnesses, who have supported the case of the
prosecution. He would contend that their presence at the
spot is natural and merely because they are relatives, their
evidence cannot be discarded unless their evidence is
surrounded by suspicion. He would assert that there are no
contradictions or omissions forthcoming in the evidence and
all these witnesses stood the test of the cross-examination
and there is no reason to discard their evidence. Hence, he
would assert that the learned Sessions Judge has
appreciated all these aspects in proper perspective and has
rightly convicted the accused by imposing minimum sentence
prescribed under the law. Hence, he would assert that the
judgment of conviction and order of sentence does not call
for any interference by this Court.
10. Having heard the arguments and after perusing
the oral and documentary evidence, now the following point
would arise for my consideration:
"Whether the judgment of conviction and
order of sentence passed by the learned Sessions
Judge in Special Case (POCSO) No.50/2016 dated
06.04.2017 is perverse, arbitrary and erroneous so
as to call for any interference by this Court?"
11. As per the case of the prosecution, on
30.01.2016 at about 12 noon the victim girl after getting
down from the bus at Timmapur cross at Shorapur, after
attending the computer classes at Basaveshwar Computer
School, she was returning to her house. It is alleged that the
accused called her requesting her to have favour of sleeping
with them and accused No.2 caught hold of her hand and
dragged her and other accused closed her mouth and
slapped. It is further specifically alleged that accused No.3
caught hold of her Veil and Chudidara and dragged her and
they committed sexual assault on the victim girl by using
criminal force by physically touching her body with sexual
intention. The victim girl is said to be a minor, was aged
about 17 years and Ex.P.3 is the SSLC certificate which
discloses that her date of birth is 19.06.1999. Ex.P.4 is the
transfer certificate and same date is given. The alleged
offence is said to have been committed on 30.01.2016 and if
her date of birth is taken into consideration, then it is evident
that as on the date of offence, she is aged less than 17 years
and hence, she is a minor. This aspect is not seriously
disputed by the defence. During the course of examination
of the victim or prosecution witnesses, these documents are
not challenged and no dispute was raised regarding the age
of the victim. Hence, the prosecution is successful in proving
the fact that the victim is aged less than 18 years and the
provisions of the POCSO Act are attracted.
12. The victim is examined as P.W.1 and she has
deposed that on 30.01.2016 at 12 noon while she was
returning to her house, after getting down from the bus at
Timmapur cross, near ACC Cement shop, accused No.1 called
her from the back side while accused Nos.2 and 3 teased her
and when she questioned, accused No.2 closed her mouth,
accused No.1 slapped her and accused No.3 caught hold of
her Chudidar and Veil and dragged her and when she cried,
her mother Mahadevi and Paramanna rushed to the spot.
13. Her further evidence discloses that the incident
took place at 12 noon and thereafter, she went to the house
and after her father returned to the house, she narrated the
incident and since her reputation was involved, she lodged a
complaint belatedly at about 11 p.m. This conduct of the
victim cannot be said to be abnormal as her character was at
the stake and she will think twice before lodging such a
complaint, as she is required to go through ordeal process in
the police station as well as in the Court. Her further
evidence discloses that on the next day, she has also shown
the spot to the police and the police have drawn the
mahazar. She has also deposed that her statement under
Section 164 of Cr.P.C. was also recorded by the Magistrate.
Though this witness was cross-examined at length, nothing
was elicited so as to impeach her evidence except formal
denial. A simple suggestion is made that considering the
development of family of accused No.1, a false complaint
was lodged. But it is hard to accept that a false complaint
came to be lodged at the stake of her humiliation and
character.
14. The evidence of P.W.1 is again supported by the
evidence of P.W.2 who is the mother of the victim. Her
evidence discloses that about 9 months back, she was
proceeding at 12 O' clock to the garage of Paramanna and
she heard cry of her daughter and she along with Paramanna
rushed to the spot and found that the accused were dragging
hands of her daughter and on seeing them, they fled away
from the spot. This witness was cross-examined at length,
but except a simple formal denial, nothing worthy was
elicited in the cross-examination.
15. P.W.7 is an eyewitness and his evidence is
supporting the case of the prosecution. He deposed that
about 10 months back at 12 noon, he was working in the
garage and he seen that accused No.1 along with accused
Nos.2 and 3 dragging the victim girl and assaulted her and
when he rushed to the spot, they fled away. He was also
cross-examined, but the cross-examination reveals that it is
a formal denial and nothing worthy was elicited in the cross.
16. The evidence of P.W.1, P.W.2 and P.W.7
corroborate each other. P.W.5 is the medical officer and his
evidence discloses that the victim has not given the consent
for her medical examination. But any how it is the fact that
there is no rape and for the offence under Section 376 of
IPC, the accused was acquitted and that portion of the order
was not challenged by the State. P.W.4 and 6 are the
mahazar witnesses and both these witnesses have deposed
regarding drawing the spot mahazar as per the spot shown
by the victim girl.
17. P.W.8 has deposed regarding issuing of Exs.P.3
and P.4 along with a letter as per Ex.P.6. These documents
were not disputed in the cross-examination.
18. P.W.9 has deposed regarding the registering the
complaint and issuing FIR while P.W.10 is the investigating
officer. Ex.D.1 came to be relied by the accused. But in
what way it is relevant is not at all forthcoming. This letter
Ex.D.1 discloses that in 2015-2016, specially in January
2016, except Government holidays and Sundays, the
colleges have functioned normally. But why this document is
relied is not at all forthcoming and no arguments have been
advanced in this regard. Even 313 of Cr.P.C. of the accused
in this regard is silent and they did not explain the relevancy
of Ex.D.1 and for what context it is relied.
19. The oral and the documentary evidence on
record clearly establish that the accused have dragged the
victim and caused sexual harassment which is punishable
under Section 354A of IPC. The ingredients of Section 354A
of IPC are directly applicable to the case in hand. Further,
the accused have not only dragged the victim but pulled her
Veil and Chudidar by dragging her and their intention in
touching the victim girl is Manifest and hence, the sexual
assault can be inferred.
20. Section 7 of the POCSO Act defines sexual
assault and the ingredients clarifies that if a person with
sexual intend touches the private parts of the child or does
any act with sexual intent, which involves physical contact is
said to have committed sexual assault. Section 354A of IPC
and Section 7 of the POCSO Act are synonymous and Section
42 of the POCSO Act states that if any person commits
offence under Section 354A of IPC which is an offence under
the POCSO Act, then the accused can be punished either
under Section 354A of IPC or under the provisions of the
POCSO Act which provides punishment of greater in degree.
The offence under Section 8 of the POCSO Act is punishable
with imprisonment which shall not be less than three years
but which may extend to five years with fine. The offence
under Section 354A of IPC is punishable with rigorous
imprisonment for a term which may extend to three years or
with fine or both. Hence, when compared the offence under
Section 354A of IPC and Section 8 of the POCSO Act, it is
evident that the punishment prescribed under Section 8 of
the POCSO Act is grater in degree and hence, the accused
are required to be punished under Section 8 of the POCSO
Act, but not for both the offences. The learned Sessions
Judge has convicted the accused for both the offences,
ignoring the provisions of Section 42 of the POCSO Act and
imposed sentence for both the offences which is not
permissible. Considering these aspects, the sentence
imposed for the offence under Sections 354A read with
Section 34 of IPC needs to be set aside and the accused are
required to be undergo sentence of imprisonment only for
the offence under Section 8 of the POCSO Act as imposed by
the Trial Court.
21. The learned Sessions Judge has appreciated the
oral and documentary evidence and has rightly convicted the
accused for the offences punishable under Section 354A of
IPC and Section 8 of the POCSO Act. However, has
committed an error in imposing the sentences for both the
offences by overlooking the provision of Section 42 of the
POCSO Act. Under such circumstances, the sentence of
imprisonment so far as it relates to offence under Section
354A of IPC needs to be set aside. Since the learned
Sessions Judge has imposed minimum sentence for the
offence under Section 8 of the POCSO Act, the question of
interference by in the said order of sentence for the offence
under Section 8 of the POCSO Act does not arise at all.
Considering these facts and circumstances, the point under
consideration is answered in the partly affirmative so far as it
relates to imposing sentence for the offence under Section
354A of IPC. Accordingly, I proceed to pass the following:
ORDER
The appeal stands allowed in part so far as it
relates to imposition of sentence for the offence
punishable under Section 354A of IPC.
The judgment of conviction and order of sentence
passed by the learned Sessions Judge, Yadgir in Special
Case No.50/2016 dated 06.04.2016 stands confirmed
so far as it relates to offence under Section 8 of the
POCSO Act.
However, the sentence of imprisonment and fine
for the offence under Section 354A read with Section
34 of IPC is set aside and sentence portion is confined
for the offence under Section 8 of the POCSO Act alone
and rest of the order of the learned Sessions Judge
stands confirmed so far as it relates to offence under
Section 8 of the POCSO Act.
Send back the Trial Court records to the learned
Sessions Judge along with copy of this judgment with a
direction to the Trial Court to secure the presence of
the accused for serving the sentence.
Sd/-
JUDGE
RSP
