Karnataka High Court

Akash S/O Basavaraj Jadar vs The State on 6 February, 2024

Author: B.M.Shyam Prasad

Bench: B.M.Shyam Prasad

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                                                      CRL.A No. 200024 of 2022




                              IN THE HIGH COURT OF KARNATAKA,
                                      KALABURAGI BENCH
                          DATED THIS THE 6TH DAY OF FEBRUARY, 2024

                                           PRESENT

                         THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
                                              AND
                        THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                             CRIMINAL APPEAL NO. 200024 OF 2022

                   BETWEEN:
                      AKASH S/O BASAVARAJ JADAR,
                      AGE: 22 YEARS, OCC: COOLIE,
                      R/O: ALLOLLI VILLAGE, TQ: CHITTAPUR,
                      DIST: KALABURAGI-585222.
                                                                  ...APPELLANT
                   (BY SRI. VISHAL PRATAP SINGH, ADVOCATE)

                   AND:
                   1. THE STATE THROUGH
                      CHITTAPUR POLICE STATION,
                      TQ: CHITTAPUR, DIST: KALABURAGI,
                      THROUGH ADDL. SPP,
Digitally signed      HIGH COURT OF KARNATAKA,
by RAMESH
MATHAPATI             KALABURAGI BENCH-585107.
Location: HIGH
COURT OF
KARNATAKA          2.   SANGEETA D/O SANGANNA,
                        AGE ABOUT 19 YEARS,
                        R/O ALLOLLI, TQ: CHITTAPUR,
                        DIST: KALABURAGI-585222.
                                                              ...RESPONDENTS
                   (BY SRI. SIDDALING P. PATIL, ADDL. SPP FOR R1;
                       SMT. NEEVA M. CHIMKOD, ADVOCATE FOR R2)

                        THIS CRL.A. IS FILED UNDER SECTION 374 (2) OF CR.P.C
                   PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
                   JUDGMENT AND ORDER PASSED BY THE II ADDL. SESSION
                   JUDGE AT GULBARGA IN SPECIAL CASE (POCSO) NO.33/2018
                   DATED: 14.01.2020 AND ACQUIT THE APPELLANT FOR THE
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                                NC: 2024:KHC-K:1359-DB
                                    CRL.A No. 200024 of 2022




OFFENCE PUNISHABLE U/SEC.366-A, 376(2)(n), 506 OF IPC
AND SEC.6 OF POCSO ACT, 2012.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:

                           JUDGMENT

The appellant is convicted for the offences punishable

under Sections 366-A, 376(2)(n), 506 of Indian Penal Code,

1860 [for short, 'the 'IPC] and Section 6 of the Protection of

Children from Sexual Offences Act, 2012 [for short, 'the

POCSO Act'] by the judgment dated 14.01.2020 in a Special

Case (POCSO) No.33/2018 on the file of the II Additional

Sessions Judge, Kalaburagi [for short, 'the Special Court'].

The Special Court has sentenced the appellant to undergo

the following sentences:

[i] To undergo rigorous imprisonment of ten years

for the offence punishable under Section 366-A

and to pay a fine of Rs.50,000/- with default

simple imprisonment for a period of two years.

[ii] To undergo rigorous imprisonment for life and

pay a fine of Rs.50,000/- for the offence

punishable under Section 6 of the POCSO Act,

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2012 read with Section 376(2)(n) of IPC with

default simple imprisonment for a period of two

years.

[iii] To undergo rigorous imprisonment for two

years for the offence punishable under Section

506 and pay fine of Rs.10,000/- with default

simple imprisonment for a period of six

months.

The Special Court has directed that the sentences as

aforesaid shall run concurrently and has also directed

payment of compensation of Rs.5,00,000/- to the second

respondent.

2. The second respondent has filed an affidavit

before this Court seeking leave to produce additional

documents asserting that the appellant, who has been in

judicial custody from 03.07.2018, is released on parole for a

period of three months in the month of June 2021, and

because she and the appellant have been in love they have

got married with the consent of parents on 17.07.2021 and

she has given birth to a boy child on 24.05.2022. The

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second respondent, who is categorical that her marriage to

the appellant is because of mutual love and affection

without any coercion, has produced the birth certificate of

the child, a wedding photograph and the invitation card.

3. This Court on 08.08.2023, recording that the

appellant has been in custody for more than five years as of

that date, has allowed the application for early hearing, and

as such, this appeal is taken up for final disposal. Sri Vishal

Pratap Singh, the learned counsel for the appellant, Sri

Siddaling P. Patil, the learned Addl. SPP for the first

respondent-State, and Smt. Neeva M. Chimkod, the learned

counsel for the second respondent, are heard for final

disposal and the records are perused.

4. The father of the second respondent has filed

First Information Report with the jurisdictional police on

01.06.2018 stating inter alia that the appellant and the

second respondent are aged about 16 and 18 years

respectively and that when the second respondent was not

seen from 2:00 p.m. on 27.05.2018, Sri Siddalingappa, an

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acquaintance, informed his wife that he saw the appellant

and the second respondent at the residence of a certain Sri

Siddu Chalikar. The complaint has further stated that he

visited the appellant's house, but he found the house under

lock and he could not locate his daughter even after he

searched for her in Jeevanagi, Maalagatti, Jevargi,

Gundugurti, Baagodi, Yadgir and other places, and

therefore, the police must take action against the appellant

and trace his daughter.

5. The police with this information have registered

FIR in Crime No.104/2018 against the appellant for the

offence punishable under Section 363 of IPC, and the second

respondent's statement is recorded under Section 164 of

Cr.P.C. on 05.07.2018 by the Jurisdictional First-Class

Magistrate. The second respondent in her voluntary

statement before the learned Magistrate has stated that she

and the appellant were in love, and a month prior to the date

when her statement is recorded, the appellant had called her

to his place through her friend Gangamma D/o Shekanna;

that the appellant's parents were present and the appellant,

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who was outside returned quickly; that his parents advised

them to get married and encouraged them to travel

Kalaburagi; that she and the appellant first travelled to

Bengaluru, then to Chimmaidlai, then to Kalaburagi, then to

Jeevanagi and when they returned to Kalaburagi her parents

and elder brother visited them with the jurisdictional police;

that she refused to accompany them but later she has

accompanied them; and that there was physical intimacy

between them because the appellant assured to get marry to

her.

6. The jurisdictional police have filed charge sheet

and the Sessions Court has framed charges against the

appellant for the offences as aforesaid under the provisions

of IPC and POCSO Act. With the appellant pleading not

guilty and seeking trial, the prosecution has examined

amongst others the second respondent as PW.1, her parents

as PWs.2 and 3, the official witnesses such as police officials

and a doctor [PW.13].

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7. The second respondent in her evidence, in

consonance with the voluntary statement recorded under

Section 164 of Cr.P.C., has stated that she visited the

appellant's residence and the appellant's parents asked her

to stay back as the appellant was not in the residence at

that point of time; that her brother, Sri Siddalingappa,

visited the appellant's house and requested the appellant's

parents to send her back but the appellant's parents did not

listen to him; that therefore he called her parents and even

when they requested, the appellant's parents did not relent;

that the appellant's parents took the appellant and her to

Kalaburagi from there they traveled to Bengaluru,

Chimmaidlai and Jeevanagi. The second respondent in her

cross-examination has stated that she was taken to

Kalaburagi by the appellant and his parents by an auto

rickshaw and from there she and the appellant traveled to

Bengaluru by a bus; she has also stated that she and the

appellant have traveled by bus to all the other places as

aforesaid.

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8. The second respondent's father who is examined

as PW.2, and he has contradicted the second respondent's

statement and evidence. He has asserted in his chief-

examination that they did not know the whereabouts of the

second respondent from the afternoon of 27.05.2018. As

regards the age of the second respondent, he has stated that

he has admitted her to the first standard in a school

[without mentioning the details of the school], and he has

also stated that he was not asked about the second

respondent's date of birth and he has not given the date of

birth to the said school. The prosecution to prove the age of

the second respondent has examined, Sri Sharanabasappa,

a Physical Education Teacher with the Government High

School, Allolli as PW.10 and marked school certificate dated

11.07.2018 as Ex.P15.

9. Sri Sharanabasappa [PW10] has stated that the

second respondent was studying in 9th standard during the

academic year 2016-17 and as on 11.07.2018 he was the in-

charge Headmaster. He has stated that he has given the

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certificate as per Ex.P-15 indicating the second respondent's

date of birth as 20.03.2003. In the cross-examination, this

witness has stated that second respondent stopped

attending school three years prior to the date of evidence

[19.03.2019] and denied that the second respondent was not

a minor in terms of the school certificate. He does not even

state that the victim first attended this school.

10. The Special Court, in the light of the Certificate

and ocular evidence by the official witnesses, has found the

appellant guilty while considering the questions such as

whether the prosecution proves that the appellant induced

and kidnapped the second respondent, a girl aged below 16

years, on 27.05.2018 and committed rape and aggravated

penetrative offence as contemplated under IPC and POCSO

Act. The Special Court has relied upon Ex. P-15 to arrive at

its conclusion that the second respondent is shown to be a

minor as of the date of the alleged occurrence referring to

the decision of the Hon'ble Supreme Court in Mahadeo vs.

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State of Maharashtra and another1. The Special Court's

reasoning in this regard reads as under:

"69. The school certificate Ex.P-15 shows that the date of birth of victim is 20.03.2003. Way back in the year 2008-09 the victim was admitted to the school and at that time the date of birth of victim was recorded. During the year 2008-09 the parents of victim would not have imagined that one day the accused will commit sexual offence on her and therefore, they have to give the lesser age than her actual age. Therefore, as held in judgment reported in (2013) 11 SCC 637 Mahadeo Vs. State of Maharashtra and another, the date of birth mentioned in school records to assess the age of the victim, the assessment of the age through ossification test is not required. Before the doctor also the victim has informed that on 27.05.2018 in jeep the accused forcibly took her to Bengaluru and had sexual intercourse with her for 3 to 4 times and on examination the doctor found that hymen was torn and healed. This evidence of doctor is clearly corroborating with the evidence of victim."

11. Sri Vishal Pratap Singh, the learned counsel for

the appellant, submits that this Court must consider that

even according to the second respondent's parents the

1 (2013) 11 SCC 637

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second respondent was aged about 18 years and both the

appellant and the second respondent have been in love with

each other. The learned counsel emphasizes that the second

respondent is consistent, as could be seen in her voluntary

statement under Section 164 of Cr.P.C., in her evidence and

in the affidavit filed before this Court, that she and the

appellant are in love and they have married out of mutual

love and affection without any coercion and the appellant's

affection for the second respondent stand out in he marrying

her and they begetting a male child.

12. On the merits, Sri Vishal Pratap Singh submits

that the prosecution has failed to establish that the second

respondent was a minor as of the date of the alleged

occurrence and if the prosecution has failed to establish the

same, there cannot be any presumption as contemplated

under the provisions of Section 29 of the POCSO Act and

even otherwise, consent between two adults is established.

In this regard, the learned counsel points out that the

settled law is that the prosecution must first produce the

matriculation or equivalent certificate or birth certificate

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from the school first attended or the birth certificate given by

the Corporation or a Municipality and only in the absence of

these certificates, the medical opinion would be relevant. Sri

Vishal Pratap Singh further argues that the prosecution has

not produced the matriculation equivalent certificate or the

certificate by the school where the second respondent

studied first or the birth certificate issued by any local

authority, and as such, the Special Court's opinion that the

second respondent is shown to be a minor because of the

School Certificate and the radiologist's opinion is

impermissible, especially with the father PW-2 admitting

that he has not given the date of birth of the second

respondent at the time of admitting the second respondent

to the school for the first time.

13. The Hon'ble Supreme Court in Mahadeo Vs. State

of Maharashtra and another [supra], with reiteration in

State of MP vs. Anoop Singh2, has declared, as canvassed by

the learned counsel for the appellant, that only in the

2 (2015) 7 SCC 773

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absence of the alternative methods of establishing the date

of birth of the second respondent, medical opinion as

contemplated under the Juvenile Justice [Care and

Protection of Children] Rules, 2007 can be sought for. The

prosecution is silent about the efforts made to secure the

details of the school where the second respondent first

attended classes and the date of birth as mentioned therein.

The doctor who is examined as PW-13 has only referred to

radiologist's opinion, but this report is not brought on

record, and this is a vital aspect that has been overlooked by

the Special Court. In the light of the law as discussed

above, the prosecution's failure in this regard must inure to

the appellant's advantage.

14. Further, if the prosecution establishes the

foundational facts to demonstrate that offence punishable

under the POCSO Act is committed, the presumption under

Section 29 of the Act would follow and not otherwise, and a

reference could be made to the decision of the Hon'ble

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Supreme Court in Pappu v. State of UP3. The prosecution

has failed to establish that the second respondent was a

minor, a child. Though a consensual relationship between

the appellant and the second respondent is seen in the

second respondent consistently asserting that she and the

appellant had affection for each other and therefore they

have been in relationship, this is not fatal to the appellant

because the second respondent is not shown to be a minor.

In the circumstances, this Court must opine that the

prosecution has failed to establish that the second

respondent was a minor and the physical intimacy between

the appellant and the second respondent was without her

consent. Therefore, the appellant must succeed in the

appeal, and consequentially, the following:

ORDER

(i) The appeal is allowed.

(ii) The impugned judgment dated 14.01.2020 in

Special Case [POCSO] No.33/2018 on the file

of the II Additional Sessions Judge, Kalaburagi

3 [2022] 10 SCC 321