Karnataka High Court
Ashok vs The State Of Karnataka on 7 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 Crl.A.No.200122/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL.NO.200122 OF 2018 (374)(2)
BETWEEN
ASHOK S/O TIPPANNA KATTIMANI
AGE:23 YEARS, OCC: COOLIE,
R/O MAVISUR VILLAGE,
TQ. CHITTAPUR, DIST. KALABURGI.
...APPELLANT
(BY SRI JAYANANDAYYA, ADVOCATE)
AND
THE STATE OF KARNATAKA THROUGH
THE POLICE, RATKAL POLICE STATION,
TQ. CHITTAPUR, DIST. KALABURAGI,
REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
BENCH AT KALABURAGI.
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C PRAYING TO, SET ASIDE THE IMPUGNED JUDGMENT
2 Crl.A.No.200122/2018
OF CONVICTION DATED 23-06-2018 AND SENTENCE DATED
23.06.2018 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, KALABURAGI IN S.C.NO.43/2017 THEREBY
CONVICTING THE APPELLANT FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 506 AND 354 OF IPC AND SEC. 10 OF POSCO
ACT, 2012. SENTENCING HIM TO UNDERGO RIGOROUS FOR
PERIOD OF 7 YEARS AND TO PAY FINE OF RS.1,00,000/-, FOR
OFFENCES PUNISHABLE UNDER SECTIONS 10 OF POSCO ACT,
2012 AND 354 OF INDIAN PENAL CODE AND IN DEFAULT TO PAY
FINE, HE SHALL UNDERGO FURTHER S.I. FOR ONE YEAR,
FURTHER CONVICTING APPELLANT FOR THE OFFENCES
PUNISHABLE UNDER SECTION 506 OF IPC AND SENTENCING HIM
TO UNDERGO S.I. FOR A PERIOD OF 2 YEARS AND TO PAY FINE
OF RS.25,000/- IN DEFAULT S.I. FOR THREE MONTH, FURTHER
ACTING U/S 33(8) OF THE POSCO ACT, 2012, A DIRECTION
ISSUED TO PAY COMPENSATION OF RS.50,000/- (RUPEES FIFTY
THOUSAND ONLY) TO PROSECUTRIX. ACQUIT THE APPELLANT OF
ALL CHARGES IN S.C.NO.43/2017 ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSION JUDGE AT KALABURGI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
3 Crl.A.No.200122/2018
JUDGEMENT
This appeal is filed by the appellant/accused under
Section 374(2) of Cr.P.C. challenging the judgment of
conviction and order of sentence passed by the II Additional
Sessions Judge, Kalaburagi in Special Case (POCSO)
No.43/2017 dated 23.06.2018.
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 14.07.2017 at 5-00 p.m. when the victim
minor girl aged below 12 years was proceeding to
Revansiddeshwar hillock from Gonavi village to buy sugar,
the accused who was proceeding on motorbike assuring her
to drop her near the shop, took her on motorcycle towards
Ratkal canal and near the land of Deshmukh near a neem
tree, subjected her to sexual assault by dragging her hands,
pressed lips and abused her in filthy language as well as
threatened her in this regard. The victim has lodged a
complaint and on the basis of this complaint, the
investigating officer registered the case and issued FIR.
Subsequently, he investigated the matter and submitted the
charge-sheet against the accused for the offences punishable
under Sections 504, 506, 354 of IPC and Sections 8, 9, 10,
11 and 12 of the POCSO Act. The accused was arrested and
subsequently, he was enlarged on bail. After submission of
the charge-sheet, the learned Sessions Judge has taken
cognizance of the offences and the accused appeared though
his counsel and prosecution papers were furnished to him
under Section 207 of Cr.P.C. The charge under Sections
504, 506 and 354 of IPC and under Section 10 of POCSO Act
was framed against the accused and same is read over and
explained to the accused. The accused pleaded not guilty
and claimed to be tried.
4. To prove the guilt of the accused, the prosecution
has examined in all 7 witnesses as P.W.1 to P.W.7 and also
relied on 7 documents marked at Exs.P.1 to P.7. After
conclusion of the evidence of the prosecution, 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 him in the case of the prosecution. The
case of the accused is of total denial. The accused has not
lead any defence evidence in support of his contention.
5. After having heard the arguments and after
appreciating the oral and documentary evidence, the learned
Sessions Judge has acquitted the accused for the offence
punishable under Section 504 of IPC. However, he has
convicted the accused for the offences punishable under
Sections 506 and 354 of IPC as well as under Section 10 of
the POCSO Act. The learned Sessions Judge after hearing on
sentence, imposed rigorous imprisonment for a period of
seven years with fine of Rs.1,00,000/- with default sentence
for the offence under Section 10 of the POCSO Act read with
Section 354 of IPC. He has also convicted the accused for
the offence under Section 506 of IPC by imposing
imprisonment for a period of two years with fine of
Rs.25,000/-.
6. Being aggrieved by this judgment of conviction
and order of sentence, the accused is before this Court by
way of this appeal.
7. Heard the learned counsel for the appellant and
learned the learned High Court Government Pleader for the
respondent/State. Perused the records.
8. The main contention of the learned counsel for the
appellant is that the Trial Court has not properly appreciated
the evidence and has erroneously convicted the accused. It
is also asserted that due to animosity, a false complaint was
lodged and he would further assert that the learned Sessions
Judge has ignored the fact that the appellant was arrested
earlier, but he was later on fixed. He would contend that the
evidence of the witnesses contrary to each other and will not
assist the prosecution in proving the guilt of the accused
beyond all reasonable doubt. Hence, he would seek for
allowing the appeal by acquitting him.
9. Per contra, the learned the learned High Court
Government Pleader would support the judgment of
conviction and order of sentence. He would contend that the
victim as well as all the material witnesses have fully
supported the case of the prosecution and there is no reason
to discard their evidence. He would also contend that
suggestions made to the witnesses establish that the
accused has admitted that on the date of the alleged
incident, the victim girl traveled along with him on the two
wheeler, but he tried to take up the defence which he has
failed to prove regarding the brother of the victim availing
loan of Rs.1,00,000/- and further, two independent
witnesses having quarreled with the accused. He would
contend that the learned Sessions Judge after appreciating
the oral and documentary evidence has rightly convicted the
accused by imposing suitable and minimum sentence
prescribed under the law which does not call for any
interference. Hence, he would seek for dismissal of the
appeal.
10. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:
"Whether the judgment of conviction and
order of sentence passed by the learned
Sessions Judge suffers from any perversity,
illegality or erroneous so as to call for any
interference by this Court?"
11. The prosecution has examined in all seven
witnesses. P.W.1 is the victim aged about 12 years. P.W.2
Shivasharanappa and P.W.3 Iranna are two eyewitnesses
and they have also supported the case of the prosecution
while P.W.4 is the father of the victim girl and P.W.5 is the
headmaster of the school, wherein the victim has studied
and deposed regarding issuing age certificate of victim as per
Ex.P.4. P.W.6 is the spot mahazar witness while P.W.7 is the
investigating officer. Ex.P.1 is the complaint and Ex.P.4 is
the birth certificate of the victim, Ex.P.5 is the spot mahazar,
Ex.P.6 is the vehicle seizure panchanama and Ex.P.7 is the
FIR.
12. The victim girl is examined as P.W.1. In her
evidence, she has reiterated the complaint allegations
regarding the accused being known to her, taking her on his
motorcycle under the guise of dropping her near the Hillock,
while she was proceeding to purchase sugar, but without
dropping her, took her near Revansiddeshwar hillock and
towards bridge, committed sexual assault on her. She has
specifically deposed individual acts of the accused and
though this witness was cross-examined at length, nothing
was elicited so as to impeach her evidence. A simple
suggestion was made that her brother has availed loan of
Rs.1,00,000/- and in order to over come it, this false
complaint was lodged. But the victim has denied the said
suggestion. Interestingly, during the cross-examination of
P.W.1 i.e., victim girl it is admitted that victim girl on that
day traveled on the bike of the accused. Further it is also
admitted that two eyewitnesses i.e., P.W.2 and P.W.3 were
also present, but a suggestion was made that both of them
by cutting the trees have closed the road and in this regard,
accused quarreled with them and was assaulted, but she
denied the suggestion. A suggestion was also made that
when she secured her father to the spot, her father at the
instance of P.W.2 and P.W.3 assaulted the accused, but she
denied the said suggestion also. The witness was very
consistent regarding her stand regarding the accused
committing criminal sexual assault on her.
13. P.W.2 Shivasharanappa and P.W.3 Iranna are the
two eyewitnesses. As per the case of the prosecution, when
the victim girl escaped from the custody of the accused, she
ran and on the way she met these two witnesses and the
accused chased her on his motorcycle, but seeing the
witnesses, he fled away. Both these witnesses have
supported the case of the prosecution regarding the victim
approaching them running and narrating the incident and
accused chasing her and she refusing to go with him.
Though these witnesses were cross-examined, nothing was
elicited so as to discredit or disbelieve their evidence. A
suggestion was made that they have assaulted the accused
when they blocked road by cutting the trees and the said
suggestion came to be denied. Interestingly, during the
cross-examination of P.W.3, a suggestion was made that
accused on that day taking the victim on his motorcycle
towards Ratkal and at that time, they blocked the road, but
the said suggestion came to be denied. By making
suggestion, the accused has admitted that he was with
victim girl and victim traveled with him on his motorcycle.
14. P.W.4 is the father of the victim and he has also
deposed as per the case of the prosecution and further
deposed that he received a phone call from his daughter and
gone to the spot and after getting the information, lodged
the complaint. His evidence is quite natural and his evidence
further discloses that initially, he attempted to lodge a
complaint, but due to non-availability of Investigating
Officer, he could not lodge a complaint and later, he lodged
the complaint.
15. P.W.5 is the headmaster of the Government
School and she has deposed regarding issuing the age proof
certificate as per Ex.P.4 pertaining to the victim. In the entire
cross-examination, the date of birth and age of the victim
that she is less than 12 years is not denied. The victim
claims to be born on 15.06.2006 and this incident has taken
place on14.07.2017. Hence, she was admittedly aged about
11 years and hence, the prosecution is able to prove that the
victim is less than 12 years.
16. P.W.6 is the spot mahazar as well as the vehicle
seizure mahazar witness while P.W.7 is the investigating
officer.
17. The evidence of P.W.1 to P.W.3 is consistent and
corroborative to each other. The evidence of the victim,
P.W.2 and P.W.3 disclose that accused has committed
criminal sexual assault on the victim and it is not in dispute
that she is aged below 12 years. Her age itself is not
challenged. Though there is a delay in lodging the complaint,
P.W.4 has given proper explanation and it is quite natural
that he will think twice before lodging the complaint as the
reputation of his daughter is involved. In such matters, the
delay cannot be termed as fatal. The learned Sessions Judge
has also acquitted the accused for the offence under Section
504 of IPC which is on the basis of proper reasoning and the
said finding is not challenged.
18. Sexual assault is defined under Section 7 of the
POCSO Act. In the instant case, the evidence disclose that
the accused has touched the body of the child, chest and
tried to remove her dress which discloses his criminal
intention. Hence, the sexual intent can be gathered from his
act only. Further, the accused is none other than the friend
of brother of the victim girl having conversant with the
family. Hence, it is in good faith, the victim has traveled with
him which has been misused by the accused. Further,
Section 9(m) of the POCSO Act defines aggravated sexual
assault, wherein it is asserted that when sexual assault is
committed on a child below 12 years, it is to be considered
as aggravated sexual assault. Admittedly, in the instant
case, sexual assault is committed on the victim girl who is
aged 11 years and hence, it is an aggravated sexual assault
as defined under Section 9 of the POCSO Act. Section 10
defines the punishment. As per Section 10 of the PCSO Act,
the minimum sentence prescribed is five years and maximum
is seven years. The learned Sessions Judge has imposed
maximum imprisonment of seven years with fine of
Rs.1,00,000/- but no proper reasonings have been offered
for imposing maximum sentence of seven years and
considering the age of the appellant/accused, in my
considered opinion, the sentence imposed for a period of
seven years appears to be on higher side. Hence, in my
considered opinion, the sentence of five years would serve
the purpose. No doubt, the accused has tried to make use of
helpless condition of the child, but before the offence is being
committed, the child escaped and looking to these aspects,
the minimum sentence of five years as prescribed under the
law would serve the purpose, but at the same time, the fine
does not call for any interference.
19. Further, the learned Sessions Judge has also
imposed sentence of two years with fine of Rs.25,000/- for
the offence under Section 506 of IPC which does not call for
any interference. Looking to these facts and circumstances,
the point under consideration needs to be answered partly in
the affirmative so far as it relates to sentence of
imprisonment is concerned for the offence under Section 10
of POCSO Act. Accordingly, I proceed to pass the following:
ORDER
The appeal is allowed in part so far as it relates to
sentence is considered pertaining to the offence under
Section 10 of the POCSO Act.
The judgment of conviction passed by the II Additional
Sessions Judge, Kalaburagi in Special Case (POCSO)
No.43/2017 dated 23.06.2018 stands confirmed.
Further, the sentence of imprisonment and fine for the
offence under Section 506 of IPC also stands confirmed.
However, the sentence for the offence under Section 10 of
POCSO Act is modified and reduced from seven years to five
years, but however, fine of Rs.1,00,000/- stands confirmed.
Send back the Trial Court records along with a copy of
this judgment to the Trial Court with a direction to secure the
presence of the accused for serving the balance sentence
and fine, if not yet paid.
Sd/-
JUDGE
RSP
