Karnataka High Court

Sharnappa vs The State Of Karnataka on 21 February, 2024

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

                            1         Crl.A.No.200092/2018
                                  C.W.Crl.A.No.200097/2018

           IN THE HIGH COURT OF KARNATAKA

                   KALABURAGI BENCH

       DATED THIS THE 21ST DAY OF FEBRUARY, 2024

                         BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


        CRIMINAL APPEAL NO.200092 OF 2018 (374)
                           C/W
        CRIMINAL APPEAL NO.200097 OF 2018 (374)


IN CRL.A.NO.200092/2018:

BETWEEN

SHARNAPPA S/O ANANDAPPA DORE,
AGE: 22 YEARS, OCC: COOLIE,
R/O YADRAMI, TQ.JEWARGI,
DIST. KALABURAGI-585325.
                                               ...APPELLANT
(BY SRI ISHWARAJ S. CHOWDAPUR, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH YADRAMI P.S.,
REPRESENTED BY,
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585103.
                                             ...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)

     THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING TO,
ALLOW THIS APPEAL AND CALL FOR THE RECORDS FROM THE
TRIAL COURT AND PERUSE THE SAME AND SET ASIDE THE
                            2          Crl.A.No.200092/2018
                                  C.W.Crl.A.No.200097/2018

ORDER OF CONVICTION AND SENTENCE INCLUDING FINE
PASSED IN SPL.CASE POCSO NO.5/2016 BY II ADDITIONAL
SESSIONS JUDGE, KALABURAGI DATED 28-6-2018 AND ACQUIT
THE APPELLANT FOR CHARGES UNDER SECTIONS 366, 368 R/W
SECTION 34 OF IPC AND UNDER SECTION 12 OF POCSO ACT.

IN CRL.A.NO.200097/2018:

BETWEEN

SMT. SHARANAMMA W/O GOVINDAPPA DORE,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O KADAMGERI, NOW AT BEHIND
LAXMI TEMPLE, JEWARGI,
TQ. JEWARGI,
DIST. KALABRUAGI-585105.
                                              ...APPELLANT
(BY SRI GANESH NAIK, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH YADRAMI POLICE STATION,
REPRESENTED BY ITS SPP,
HIGH COURT OF KARNATAKA,
AT KALABURAGI BENCH-02
                                            ...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)


   THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING TO,
SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 28-06-2018 PASSED IN SPL. CASE
(POCSO) NO.05/2016, BY THE II ADDITIONAL SESSIONS JUDGE
AT   KALABURAGI     BY  ALLOWING     THIS    APPEAL  AND
CONSEQUENTLY ACQUIT THE APPELLANT/ACCUSED NO.2 OF THE
CHARGES LEVELED AGAINST HIM.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.02.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                                3         Crl.A.No.200092/2018
                                     C.W.Crl.A.No.200097/2018

                           JUDGEMENT

These two appeals are filed by accused Nos.1 and 2

challenging the judgment of conviction and order of sentence

passed by the II Additional Sessions Judge, Kalaburagi in

Special Case (POCSO) No.5/2016 dated 28.06.2018,

whereby the learned Sessions Judge has convicted the

accused for the offences punishable under Sections 366, 368

of Indian Penal Code, 1860 (for short 'IPC') and Section 12 of

the Protection of Children from Sexual Offences Act, 2012

(for short '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 accused No.1 Sharanappa since six months from

the date of incident, used to follow C.W.2/victim minor girl

and proposed to her despite her refusal. It is alleged that on

12.11.2015 at about 05-15 p.m. when C.W.2 had been to

the shop of C.W.8 Sharanayya in Yadrami village in order to

get fair and lovely face cream accused No.1 kidnapped her

with an intention that she may be compelled to marry him

and then he took her to the house of accused No.2

Sharanamma at Jewargi and she was confined their till

01.12.2015.

4. When the victim girl was not found, the

complainant has lodged a complaint in this regard and

subsequently, the victim girl was traced in Jewargi bus stand

and she was brought to the police station and she narrated

the incident. Then, the investigating officer investigated the

crime and submitted the charge-sheet against the accused

for the offences punishable under Sections 366-A, 368, 370

and 506 of IPC and Sections 12 and 18 of the POCSO Act.

The accused were arrested and subsequently, were enlarged

on bail. After submission of the charge-sheet, the learned

Special Judge has taken the cognizance of the offences and

the accused were represented by their counsel. They were

furnished with the prosecution papers in compliance with

Section 207 of Cr.P.C. After hearing both sides and perusing

the records, the charge was framed under Sections 366, 368

and 506 of IPC and Section 12 of the POCSO Act. The

accused have denied the charge and claimed to be tried.

5. In order to prove the case of the prosecution, the

prosecution has examined in all 11 witnesses as P.W.1 to

P.W.11 and relied on 10 documents marked at Exs.P.1 to

P.11. After conclusion of the evidence of the prosecution,

the statements of the accused under Section 313 of Cr.P.C.

are 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.

6. After having heard the arguments and after

appreciating the oral and documentary evidence, the learned

Special Judge has acquitted the accused for the offence

punishable under Section 506 read with Section 34 of IPC.

However he has convicted accused No.1 for the offences

punishable under Sections 366 and 368 read with Section 34

of IPC as well as Section 12 of the POCSO Act while accused

No.2 was convicted for the offence under Section 368 read

with Section 34 of IPC. After hearing the arguments, the

learned Special Judge has imposed the sentence of seven

years with fine of Rs.1,00,000/- for the offence under

Section 366 of IPC, sentence of seven years with fine of

Rs.1,00,000/- for the offence under Section 368 of IPC and

sentence of two years with fine of Rs.25,000/- for the

offence under Section 12 of the POCSO.

7. Being aggrieved by this judgment of conviction

and order of sentence, the accused have filed these appeals

under Section 374(2) of Cr.P.C. Criminal Appeal

No.200092/2018 is filed by accused No.1 while Criminal

Appeal No.200097/2018 is filed by accused No.2. Since both

these appeals are arise out of the same judgment, they are

heard together and disposed of by this common judgment.

8. 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.

9. The learned counsels for the appellants/accused

would contend that the victim is alleged to be 17 years, but

there is no material evidence regarding her date of birth. It

is further asserted that the 164 of Cr.P.C. statement of the

victim is contrary to the evidence and age of the victim itself

is not proved and the manner in which the victim behaved, it

is evident that she herself has voluntarily accompanied the

accused and their conduct disclose that it is a love affair.

They would also contend that even if the entire case of the

prosecution is accepted, at the most the offence under

Section 363 of IPC is attracted, but not the other offences.

Further it is asserted that as against accused No.2, there is

absolutely no evidence and even the place wherein the victim

said to have been continued, no mahazar was drawn and

hence, as against accused No.2, there is absolutely no piece

of evidence. It is asserted that in the absence of primary

evidence in respect of date of birth of the victim, she cannot

be termed as a minor and considering her conduct all along

voluntarily accompanying without raising any objection as

per her own case, it is evident that it is not a case of either

kidnap or otherwise. Hence, they would contend that the

learned Special Judge has failed to appreciate any of these

aspects in proper perspective and has erroneously convicted

the accused. Hence, it is prayed for allowing both these

appeals by acquitting the accused by setting aside the

judgment of conviction and order of sentence.

10. Per contra, the learned High Court Government

Pleader would contend that all the witnesses have supported

the case of the prosecution and the evidence of headmaster

and school certificate disclose that the victim was less than

17 years and it is prima facie sufficient to prove that the

victim was a minor and her consent does not have any

relevancy. He would also contend that under Section 11(iv)

of the POCSO Act, the sexual harassment is proved, as it is

alleged that the minor victim was being regularly followed by

accused No.1 which is an offence. He would also assert that

both the Courts below have appreciated the oral and

documentary evidence in proper perspective and have rightly

convicted the accused by imposing a reasonable sentence.

Hence, he would seek for rejection of the appeals.

11. 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 II Additional Sessions Judge, Kalaburagi in Special Case (POCSO) No.5/2016 dated 28.06.2018 is perverse, arbitrary and erroneous so as to call for any interference by this Court?"

12. The allegations of the prosecution disclose that

the victim is aged about 17 years and on 12.11.2015 around

05-00 O' clock, when she had been to the shop of C.W.8 for

buying fair and lovely face cream, accused No.1 enticed her

away under the guise of he loving her and then kept her in

Jewargi in the house of accused No.2 and went away. But

subsequently, he returned and dropped the victim at bus

stand Jewargi. It is alleged by the prosecution that then the

police secured the victim from bus stand and after getting

information, the further investigation was undertaken and

her 164 of Cr.P.C. statement also came to be recorded.

13. In the instant case, the complainant was

examined as P.W.1. He set the law in motion by lodging the

complaint as per Ex.P.1. The allegations of the complaint

disclose that on 12.11.2015, the victim went missing and the

complaint was lodged on 19.11.2015 evening at 06-30 p.m.

alleging that after search, they could not trace and since

accused No.1 used to follow her, he alleged that he might

have kidnapped the victim girl and lodged a complaint in this

regard.

14. The complainant was examined as P.W.1 and in

his examination, he has reiterated the complaint allegations

and further asserted that the accused used to follow and

tease his daughter i.e., the victim under the guise of

marrying her and he and his son warned the accused in this

regard. Though it is alleged in the complaint that he has

advised the accused in this regard, but in his examination-in-

chief he asserted that he did not enquire with the accused in

this regard. His further evidence discloses that she was found

missing on 12.1.2015 from 05-00 p.m. and after searching

her, he lodged a complaint. In the cross-examination, when

a suggestion was made that his daughter i.e., the victim and

accused No.1 had been to Mangalweda, he pleaded his

ignorance and he further denied that his daughter took

accused No.1. Admittedly, he is not an eyewitness and his

evidence does not have any much relevancy. He did not

disclose the age or date of birth of his daughter i.e., the

victim.

15. P.W.3 Ningaraj is the brother of the victim and

son of the complainant and he has also deposed in terms of

statement given by the complainant. He denied that the

victim was more than 17 years and he denied the rest of the

allegations and according to him from his sister, he got

information that accused No.1 took her and kept in the house

of accused No.2.

16. P.W.4 Sharanayya is a circumstantial witness and

as per the case of the prosecution, the victim had been to his

shop for purchasing fair and lovely fairness cream and later

on from there she was taken away, but he turned hostile and

denied the case of the prosecution.

17. P.W.7 is the spot mahazar witness and he has

turned hostile initially and in the cross-examination by the

learned Public Prosecutor, he admitted that the complainant

has shown from where his daughter was kidnapped and

there, a spot mahazar was drawn. As per the records, the

spot mahazar was done on 19.11.2015 itself. As on that

date, the place of offence was not known to the complainant

and only on suspicion, a complaint was filed on that day. But

how the spot was shown on 19.11.2015 itself wherein it is

alleged that the victim was taken away is not at all explained

by the prosecution. The allegations were regarding the

accused enticing away the child, but the complaint

allegations were only he enticing away when she had been to

the shop of C.W.8. But exact spot was not known till the

victim returns, but on 19.11.2015, itself before return of the

victim, the mahazar was drawn. Hence, this creates serious

doubt regarding genuineness of case of the prosecution as

specific spot mahazar was drawn before the spot is being

ascertained.

18. P.W.8 has deposed regarding delivering the FIR to

the Court and P.W.9 and P.W.10 are the investigating

officers while P.W.11 is a Civil Judge and JMFC, who has

recorded the statement of victim under Section 164 of

Cr.P.C. marked at Ex.P.9.

19. The entire case of the prosecution rests on the

evidence of P.W.2, who is the victim. In her evidence, she

deposed that on 12.11.2015, evening at 05-00 O'clock she

had been to the shop of Sharanayya Puranik for purchasing

fair and lovely fairness cream and there, accused No.1 was

present. She further deposed that since last six months, the

accused used to assert that he is loving her and intended to

marry her and she did not accept and then, she asserts that

he enticed away and took her in a bus to Jewargi and there

he took her to the house of accused No.2 wherein accused

No.2 taken accused No.1 on task for bringing the victim. She

further asserted that she has stayed in the house of accused

No.2 for 20 days and then accused No.1 returned after 20

days asserting that he secured the job and left her in Jewargi

bus stand and from there, she was brought to police station

by police. Her cross-examination is very much relevant

wherein she deposed that the accused had caught her hand

and she did not raise any voice while they traveled by bus.

She also asserted that she did not complain before the driver

and conductor of the bus and the house of accused No.2 was

situated in a farm and she did not verify whether the other

houses are situated adjoining. She denied regarding she

taking away accused No.1 to different places such as,

Amberkhed, Chamnal, Sangola and Magalweda etc.

A suggestion was made to this witness that they were caught

hold in Mangalweda and the police have taken them into

custody in Mangalweda, but she denied the said suggestion.

But her evidence disclose that she do not know where

Jewargi Police Station is situated. She has also specifically

asserted that when accused No.1 took her, she did not made

any attempt to escape. She admitted that in bus stand,

number of passengers were there including the police and

she did not made any attempt to report the matter to the

Controller or the police against the accused. She also

admitted that she has not objected accused No.1 for taking

away while accompanying her. She claims that after police

brought her to the police station, she was produced before

the Magistrate and her statement was recorded. Even she

admitted in her 164 of Cr.P.C. statement that she did not

refer the name of accused No.2 and she has also did not

assert regarding accused No.1 enticing her away, but claims

that she has stated regarding the accused under the guise of

marriage taken her. On perusal of the evidence of this

witness, it is evident that she accompanied accused No.1 all

along voluntarily and she has not resisted though in Jewargi

bus stand, number of passengers, controller and police

officials were present. Even her evidence discloses that she

has not raised any issue with the driver and conductor of the

bus. Hence, it is evident that she has without any resistance,

voluntarily accompanied accused No.1. As regards accused

No.2 absolutely no evidence is forthcoming to show that she

was kept in the house of accused No.2.

20. The investigating officer has not secured any

documents to show that accused No.2 possessed any house.

The prosecution has relied on ROR of the land bearing

Sy.No.322/B belonging to P.W.6, but P.W.6 specifically

asserts that in the said land, there is no house or cattle shed

and the in land belonging to his brother Ravikumar bearing

Sy.No.322/2(B), the house and cattle shed is situated.

However, he specifically asserts that he do not know where

accused No.2 is residing. What is the base for roping

accused No.2 is not at all forthcoming and the further

investigating officer has not bothered to collect any material

evidence during the course of the investigation as to the

residence of accused No.2. He has not even drawn the

mahazar at the said spot wherein accused No.2 was said to

be residing wherein the victim is alleged to have been

confined for nearly 20 days. Hence, absolutely, there is no

evidence regarding the confinement of the victim by accused

No.1 in the house of accused No.2 so as to attract the

offence under Section 368 of IPC. The minimum investigation

regarding drawing spot mahazar was also not done by the

investigating officer which discloses that in a mechanical

way, only on the basis of the statement, he has drawn the

inference and interestingly, spot mahazar of alleged kidnap

was done prior to getting the information of exact spot.

Hence it is evident that the investigating officer has not at all

applied his mind and in a mechanical way submitted the

charge sheet.

21. The evidence of the victim also discloses that she

stayed in the house of accused No.2 for 20 days and in this

period, accused No.1 was not stayed there and it is not her

case she was confined in a room or not allowed to go out. It

is hard to accept that when she was a free bird for 20 days,

she did not made any attempt to escape from the said house

nor tried to ascertain the names of neighbours. Hence, the

entire approach of the victim girl is also doubtful. The

evidence also discloses that now the victim girl is married

and when the questions were tried to be put in this regard,

they were disallowed by the Court on the ground that it is no

way concerned. But that clearly discloses that after marriage

only the victim intend to protect her interest and giving

inconsistent and contrary version against the accused.

22. Ex.P.9 is the statement of the victim recorded

under Section 164 of the Cr.P.C., wherein she deposed that

on 12.11.2015, evening at 05-00 O' clock when she had

been to bring fair and lovely fairness cream accused No.1

came there and under the guise of marrying her, took her

and kept her in his relative's house. She further stated in her

statement that from his relative's house when he was

intending to take her to Jewargi and when she was waiting in

a bus stand, the police came there and took her to the police

station and then produced before the Court. This statement

of the victim was completely inconsistent and contrary. Her

conduct discloses that she has voluntarily accompanied

accused No.1 and it is not a case of enticing.

23. All along the prosecution has alleged that the

victim is aged about 17 years and in this regard, the

prosecution has placed reliance on the evidence of P.W.5

Head master of Government Higher Secondary School,

Yadrami who claims that he has issued Ex.P.4 and the date

of birth is recorded as 08.08.1999. However, his cross-

examination discloses that he cannot say on which date the

victim was admitted in the school, who has got admitted her

and on what basis, her date of birth was recorded. Hence,

the evidence of P.W.5 does not establish that the victim is

aged less than 18 years. In this context, the learned counsel

for the appellants has placed reliance on a decision of this

Court reported in 2017 Cr.R. 928 (Kant.) (Santosh Vs.

State of Karnataka). In the said case it is noticed that the

evidence of the prosecutrix shows that she went with the

accused voluntarily and she was also aged about 17 years.

As such taking her away from lawful guardianship does not

arise at all. In the instant case also her age all along is

alleged to be 17 years and the evidence discloses that she

has voluntarily accompanied accused No.1. Her conduct

discloses that she has not raised any issue.

24. While recording her 164 of Cr.P.C. statement,

P.W.11 was required to put preliminary questions and though

there is a certification that she has put those questions, but

they were not found in 164 of Cr.P.C. statement recorded by

her. In view of the above cited decision, the question of

enticing the victim does not arise at all, as her age itself is at

the stake. Apart from that the victim categorically asserted

that there is no physical relationship between herself and

accused in this period. Apart from all along it is the case of

the prosecution that accused No.1 used to follow her and

used to tease her, but the statement of the victim discloses

that the accused used to express his love and under the

guise of marriage took away. These stands are inconsistent

and the ingredients of Section 12 of POCSO Act are not

applicable in this regard.

25. The learned counsel for the appellants has further

placed reliance on a decision reported in 1994 SCC (Cri)

435, (State of Karnataka Vs. Sureshbabu Puk Raj

Porral) wherein the Apex Court has observed as under:

A. Penal Code, 1860 - S.376 - Rape -

Prosecutrix going with accused voluntarily to several places and staying with him in lodges - Evidence regarding her age doubtful and not convincing - Medical evidence showing that she was used to sexual intercourse - Prosecutrix not clearly stating that accused had sexual intercourse with her except stating that he did something which he ought not to have

done - Held, in absence of some other evidence to support prosecution case that the accused had sexual intercourse with her offence under S. 376 not made out.

B. Penal Code, 1860 - S.376 - Age of Prosecutrix - Determination of - Medical evidence based on various tests showing that the prosecutrix was of 18 to 20 years

- Entry in school register made on the basis of information given by her parents showing her age to be below 16 years -

Prosecutrix stating that her age could extend to 16 or 17 years also - Held, evidence regarding age doubtful and not very convincing - Age.

26. In the instant case also the prosecution has

simply relied on Ex.P.4 which is not an authenticated

document, as P.W.1 never claimed that the date of birth is

entered as per his instruction and P.W.5 in unable to say at

whose instruction, the date of birth was entered. Further she

was not subjected to any medical examination to ascertain

her age also. The prosecutrix has specifically asserted that

there is no sexual intercourse and all along she though

claimed aged to be 17 years, there is no material evidence

and the age of the prosexutrix itself is doubtful and not

convincing. In the absence of proving the specific age of the

victim to show that she is less than 18 years, the allegations

of the prosecution that accused No.1 enticed away holds no

water as the evidence on record clearly disclose that the

prosecutrix/victim voluntarily accompanied accused No.1 and

she never raised any resistance all along.

27. The learned Special Judge did not appreciate any

of these facts and circumstances in proper way and as

against accused No.2, he did not discus anything and simply

convicted accused No.2 for the offence under Section 368 of

IPC without there being any evidence. The conduct of the

investigating officer is also doubtful as before specific

knowledge of enticing the victim from a particular spot, the

spot mahazar was being done and interestingly no mahazar

was done wherein the victim was alleged to be confined. No

attempt was made by the investigating officer to visit the

said spot and the victim was not willing to disclose the true

fact since she is now married. It appears that she had love

affair with accused No.1 and since she is now married, she is

not interested in getting involved in other complications and

in a mechanical way deposing in favour of the prosecution.

Her examination-in-chief and 164 of Cr.P.C. statement does

not corroborate with each other.

28. The learned Special Judge did not appreciate any

of these aspects and in a mechanical way proceeded to

convict the accused. He has accepted the school certificate

as per Ex.P.4 as genuine and admittedly, it is not a SSLC

marks card so as to accept the date of birth as a genuine

birth as observed by the Apex Court. Even P.W.1 never

claimed that the date of birth of the victim was entered as

per his instruction and he did not whisper the date of birth of

his daughter. All these facts and circumstances clearly

establish that the prosecution has miserably failed to bring

home the guilt of the accused beyond all reasonable doubt.

The learned Special Judge has failed to appreciate any of

these aspects especially the cross-examination of the victim

and she voluntarily accompanying accused No.1 and he

blindly accepting the examination-in-chief, proceeded to

convict the accused Nos.1 and 2 without there being any

specific place wherein accused No.2 is being residing and the

victim being confined. The approach of the learned Special

Judge is perverse, arbitrary and erroneous and it has

resulted in miscarriage of justice. Looking to these facts and

circumstances, I am constrained to answer the point under

consideration in the Affirmative. Hence, the appeal needs to

be allowed and accordingly I proceed to pass the following:

ORDER

Both the appeals are allowed.

The impugned judgment of conviction and

order of sentence passed by the learned II

Additional Sessions Judge, Kalaburagi in Special

Case (POCSO) No.5/2016 dated 28.06.2018 is

set aside.

Accused Nos.1 and 2/appellants are

acquitted for the offences under Section 368 read

with Section 34 of Indian Penal Code.

Accused No.1/appellant is acquitted for the

offences under Section 366 of Indian Penal Code

and Section 12 of the Protection of Children from

Sexual Offences Act, 2012.