Karnataka High Court
Girish S/O Rudrappa Turkani vs State Of Karnataka on 16 January, 2024
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CRL.A No.100011/2014
C/W CRL.A.No.100020/2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No.100011/2014
C/W
CRIMINAL APPEAL No.100020/2014
IN CRIMINAL APPEAL No.100011/2014
BETWEEN:
JAFARSAB MOULASAB HAVANAGI
AGE: 20 YEARS, OCC: MASON
R/O.BANNUR VILLAGE
TQ:SHIGGAON, HAVERI DISTRICT
...APPELLANT
(BY SRI.R.M.JAVED, ADVOCATE)
AND:
MANJANNA
E
STATE OF KARNATAKA
Digitally signed
by MANJANNA E
THROUGH KUNDAGOL P.S.
Date: 2024.02.03
12:58:41 +0530
REP. BY SPP, HIGH COURT BENCH
DHARWAD
...RESPONDENT
(BY SRI.M.H.PATIL, AGA)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO SET ASIDE THE SENTENCE AND
ORDER OF CONVICTION IN SPL. S.C. NO.3/2013 PASSED BY
THE PRL. DISTRICT & SESSIONS (SPL.) JUDGE, DHARWAD,
DATED 28.12.2013 CONVICTING THE APPELLANT (ACCUSED
NO.2) AND SENTENCED TO UNDER GO RI FOR 5 YEARS AND
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CRL.A No.100011/2014
C/W CRL.A.No.100020/2014
PAY FINE OF RS.1000/- ID TO FURTHER UNDERGO SI FOR 6
MONTHS FOR THE OFFENCE P/U/S 363 R/W 34 OF IPC AND HE
IS ALSO SENTENCED TO UNDERGO RI FOR 10 YEARS AND PAY
FINE OF RS.50,000/- ID TO FURTHER UNDERGO SI FOR ONE
YEAR FOR THE OFFENCES U/S 6 R/W 17 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, AND THEREBY
ACQUIT THE APPELLANT.
IN CRIMINAL APPEAL No.100020/2014
BETWEEN:
GIRISH
S/O. RUDARAPPA TURKANI
AGE: 23 YEARS, OCCUP: MECHANIC
R/O.: BANNUR VILLAGE, TQ:SHIGGAON
DIST:HAVERI
...APPELLANT
(BY SRI.M.B.GUNDAWADE, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH CPI KUNDGOL P.S.
KUNDGOL
REP. BY SPP, HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
...RESPONDENT
(BY SRI.M.H.PATIL, AGA)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO SET ASIDE THE CONVICTION
DATED 28.12.2013 AND SENTENCE ORDER DATED 30.12.2013
PASSED BY THE PRL. DIST & SESSIONS & SPECIAL JUDGE,
DHARWAD IN SPL. S.C. NO.3/2013 AND ACQUIT THE ACCUSED
NO.1/ APPELLANT FOR THE CHARGED FRAMED AGAINST HIM.
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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CRL.A No.100011/2014
C/W CRL.A.No.100020/2014
JUDGMENT
Appellant/accused No.1 filed criminal appeal
100020/2014 and Appellant/accused No.2 filed Criminal
Appeal No.100011/2014 feeling aggrieved by judgment of
trial Court on the file of District and Sessions (Spl.) Judge,
Dharwad in Spl.S.C.No.3/2013 dated 28.12.2013 preferred
these two appeals.
2. Parties to the appeal are referred with their
ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that
accused No.1 knowing that victim daughter of complainant
is minor was teasing on the pretext of loving her and
accused No.2 was abetting the said act of accused No.1.
About 20 days prior to 24.12.2012 in Bannur Village of
Shiggaon Taluk, accused have kidnapped the victim from
lawful guardianship of her parents. Accused have
kidnapped the victim to compel her marriage with accused
No.1 by administering threat of killing the victim, if she
resist for their acts. Thereafter both the accused carried
the victim to Aihole and then to Bengaluru. The
prosecution further alleges that on the abetment of
accused No.2, accused No.1 kept the victim in the shed of
CW-23 Muniraju and committed sexual assault on her.
Accused No.1 on inducement of marrying her and in spite
of resistance of victim against her will committed sexual
assault on her. Accused No.1 knowing that victim was
minor as on the date of kidnapping her has committed
penetrative sexual assault on her in Aihole and in the shed
of CW-23 Ganesh Muniraju. Accused No.2 caused
abetment for all the act of accused No.1 in kidnapping
and also for committing sexual assault on the victim. On
these allegations made in the complaint, the investigating
officer on completion of investigation, filed the charge
sheet against accused No. 1 and 2 for the offences
punishable under Section 363, 366, 366(A) r/w Section 34
of IPC, Section 376 of IPC and Section 6 and 17 of the
Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as the 'POCSO Act' for brevity).
4. In responses to the summons, accused No.1
and 2 have appeared through their respective counsel. The
trial Court on being prima facie satisfied of the charge
sheet materials, framed the charges against accused for
the offences alleged against them. Accused have pleaded
not guilty and claimed to be tried. Prosecution to prove the
charges leveled against the accused relied on the oral
evidence of PWs. 1 to 19 and documents Exhibits P1 to
P29, so also got identified MOs. No.1 to 7.
5. On closer of prosecution evidence, statement of
accused under Section 313 of Cr.P.C. came to be
recorded. Accused have denied all the incriminating
material evidence appearing against them and claimed
that false case is filed. Accused have examined DWs. 1 to
3 on their behalf and Exhibits D1 to D6 came to be marked
during the cross-examination of prosecution witnesses.
Exs. C1 and C2 came to be marked which were produced
by DW-2. The trial Court after hearing the arguments of
both sides and on appreciation of oral and documentary
evidence placed on record convicted both the accused for
the offences proved against them and imposed sentence
as per order of sentence.
6. Appellants/accused No.1 and 2 in both the
appeals challenging the judgment of trial Court contented
that trial Court has not properly appreciated the evidence
placed on record in the light of defence of accused and the
evidence of DWs.1 to 3. The oral evidence of material
witnesses PW-1 victim, PW-2 Mahadevappa grandfather of
victim PW-3 Laxmavva mother of victim is in inconsistent
with each other version and there are number of omissions
and contradictions in their evidence which would be
sufficient to create serious doubt on the charges leveled
against accused. Accused No.2 has taken plea of alibi and
he was working in Goa at the relevant point of time when
the victim was alleged to have been kidnapped from the
place as claimed by the prosecution. The evidence placed
on record in the form of DWs. 2 and 3 coupled with the
documents Exs.D4 to D6 has not been properly
appreciated by the trial Court and as a result recorded
improper findings in holding accused No.2 guilty for the
offence under Section 17 of the POCSO Act. There is no
any evidence against accused No.2 that he has abetted
accused No.1 for committing sexual assault on victim.
Therefore, the trial Court has committed serious error in
convicting accused No.2 with the aid of Section 17 of the
said Act for the alleged act of accused No.1 in committing
penetrative sexual assault on victim. There is no any
evidence placed on record by the prosecution to prove that
accused No.1 has committed penetrative sexual assault on
victim PW-1 and her evidence is totally unreliable to prove
the allegations made against accused No.1. The Auto or
Four Wheeler, Motorcycle alleged to have been used by
accused No.1 and 2 for kidnapping the victim PW-1 have
not been seized in this case and the prosecution has
offered no any valid reason for non-seizer of the vehicles.
The age of victim PW-1 has not been proved out of the
evidence placed on record by the prosecution. The age
determination test of victim PW-1 conducted by the PW-19
Dr. Sunil Kumar and the certificate Ex-P24 and document
produced by PW-18 Hanamantappa, Tahsildar of Kundagol
with reference to the birth register Ex-P28 stands contrary
to the one given by PW-11 Mahadev, Principal of
Government Girls High School, Saunshi on the basis of
records of the school Ex-P13. The prosecution has failed
to fix the age of victim PW-1 to hold that she was minor as
on the date of incident. The approach and appreciation of
oral and documentary evidence by Trial Court and the
finding recorded in holding both the accused guilty are
contrary to the evidence on record and the same cannot
be legally sustained. Therefore, prayed for allowing both
the appeals and to set aside the judgment of conviction
and order of sentence passed by trial Court, consequently
to acquit accused No.1 and 2 from the charges levelled
against them.
7. In response to the notice of both appeals, the
learned HCGP has appeared for the State in both the
appeals. The trial Court records have been secured.
8. Heard the arguments of both sides.
9. After hearing arguments of both sides and on
perusal of trial Court records, so also the judgment, the
following points would arise for consideration:
1. Whether the trial Court has not properly
appreciated the evidence on record and
committed serious error in convicting both
the accused for the offences alleged against
them?
2. Whether the judgment of trial Court
requires any interference by this Court?
10. On careful perusal of oral and documentary
evidence placed on record by the prosecution, it would
reveal that prosecution alleges that accused No.1 knowing
fully well that PW-1 victim is minor and on the pretext of
loving her, used to tease and accused No.2 was abetting
the such act of accused No.1. About 20 days prior to
24.12.2012 accused have kidnapped the victim PW-1 from
Bannur Village of Shiggaon Taluk from lawful custody of
her parents and carried her to Aihole and then to
Bengaluru under threat of killing her, if she scream for
help. Accused No.1 kept PW-1 victim in the shed of CW-23
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Ganesh Muniraju and during the stay in the said shed,
committed penetrative sexual assault on PW-1 victim in
spite of resistance and against her will. Thereafter,
accused No.1 has left the victim in Bannur Village and she
informed about the incident to her mother. The mother of
victim to avoid any unforeseen events in future kept her
daughter in Saunshi Village, where her father was
residing. After some time while the grandfather of victim
Mahadevappa and victim were proceeding to their land, at
that time accused No.1 and 2 by force have taken away
the victim PW-1 in the vehicle brought by them by closing
her mouth and pushing her grandfather to the ground. The
victim was carried to Bengaluru and accused No.1 kept the
victim in the shed of CW-23 Ganesh Muniraju where they
stayed for more than a month and during the said period,
accused No.1 has committed penetrative sexual assault on
victim against her will and in spite of resistance.
Thereafter, police had come to Bengaluru on the
information received by them and brought PW-1 victim
and accused No.1 to Kundagol.
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11. The prosecution to prove the allegations made
against accused No.1 and 2 mainly relies on the oral
testimony of PW-1 victim, PW-2 Mahadevappa grand
father of victim and PW-3 Laxmavva the mother of victim.
The prosecution to prove the age of victim relies on the
oral testimony of PW-11 Mahadev headmaster of the
school, PW-18 Hanamanth Tashildar of Kundagol and
PW-19 Dr. Sunil Kumar. The prosecution also seek to rely
on the evidence PW-9 Dr.Drakshayini and PW-10
Dr. Nachiket to prove the sexual assault on PW-1 victim
and her age. The evidence of above referred witnesses is
sought to be corroborated by the evidence of PW-15
Mahadevappa, ASI Kundgol police station and PW-16
Gurulingappa Maribashetty. Whether the said evidence
placed on record by the prosecution is sufficient to bring
home the guilt of accused or not is to be decided by
appreciating the evidence placed on record.
12. In a case of sexual assault on a minor victim for
the offence under Sections 376, 363 of IPC and Section 6
of the POCSO Act, the prosecution has to prove by placing
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requisite evidence regarding the age of victim. The trial
Court has referred the judgment of Hon'ble Apex Court in
Ashwini Kumar Vs. State of Madhya Pradesh
reported in (2013) 1 SCC (Cri) 594, wherein it has
been observed and held as under:
"Age determination inquiry" contemplated under
Section 7-A of the JJ Act read with Rule 12 of the
2007 rules enables the Court to seek evidence
and in that process, the Court can obtain
matriculation or equivalent certificates, if
available. Only in the absence of any
matriculation or equivalent certificates, does the
Court need to obtain the date of birth certificated
from the school first attended other than a play
school. Only in the absence of matriculation or
equivalent certificate or date of birth certificate
from the school first attended, the Court needs
to obtain the birth certificate given by the
corporation or a municipal authority or a
panchayat (not an affidavit but certificates or
documents). The question of obtaining medical
opinion from a duly constituted Medical Board
arises only if the above mentioned documents
are un available. In case exact assessment of the
age cannot be done, then the Court, for reasons
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to be recorded, may, if considered necessary
give the benefit to the child or juvenile by
considering his or her age on lower side within
the margin of one year".
In view of the principle enunciated in this judgment
by Hon'ble Apex Court, it is evident that the documents
referred as above in order will have to be taken into
consideration while determining the age of victim. As per
the JJ Rules, the matriculation or equivalent certificate or
in its absence, the date of birth certificate from the school
first attended or the birth certificate given by the
Corporation of the Municipality or Panchayat can be relied.
In the absence of these documents, the medical opinion
has to be sought from the duly constituted Medical Board
which will declare the age of the juvenile or the child. The
Hon'ble Apex Court in another judgment in Mahadeo v/s
State of Maharashtra and Another reported in
(2013)14 SCC 637 wherein in paragraph 14 has held as
under:
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"In every case concerning a child or
juvenile, the age determination enquiry shall be
conducted by the Court or the Board as the case
may be, by securing the records of the school
first attended by the child, next matriculation or
equivalent certificate, next the date of birth
certificate of the school and in the absence
where of, the birth certificate given by the
corporation or municipal authority or a
panchayat and only in the absence of such
documents can rely on medical documents
determining the age of child or juvenile".
It is also profitable to refer another judgment of
Hon'ble Apex Court in State of Madhya Pradesh v/s
has reiterated the principles in Mahadeo case referred
supra. In view of the principles enunciated in the
aforementioned judgments of Hon'ble Apex Court, the
evidence placed on record has to be appreciated in
determining the age of victim PW-1.
13. PW-11 Mahadev Malladad, Principal of
Government Girls High School Saunshi has issued the birth
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certificate of PW-1 victim Ex-P13 while admitting her to 8th
standard in the school on the basis of transfer certificate
issued by the earlier school authorities, where victim has
studied 7th standard and the age of PW-1 victim is shown
as on 02.06.1998. It has been elicited in the cross-
examination of PW-11 Mahadev Mallad that PW-1 victim
studied in Bannur High School up to 7th standard and the
entries in the said school record will be made regarding
the age of PW-1 victim and such school records will be
maintained by them and witness has admitted the said
suggestion of counsel for accused No.1. This witness has
been recalled by the prosecution for further evidence and
during course of further evidence, admission register form
is produced at Ex-P13 (C) while admitting PW-1 victim in
Saunshi Girls High School and also transfer certificate of
Bannur Government High School Ex-13 (D) and original
file brought by witness from the school has been returned
to him. The said further evidence of PW-1 would meet the
requirement as suggested in the cross-examination of
accused No.1 regarding the basis on which the entries in
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the school record Ex-P13 came to be entered as the date
of birth of PW-1 victim 02.06.1998. On the basis of
Transfer Certificate Bannur Government High School
Ex-P13(D), the entries in Ex.P.13 were made. There is
nothing worth material that has been brought on record in
his further cross-examination to discredit his evidence
regarding the recording of date of birth of PW-1 victim as
on 02.06.1998. The learned counsel for accused has
argued that papers in the file looking to be fresh and the
concoction of entries to suit the purpose cannot be ruled
out. The witness is a third person who has nothing to do
with the allegations made against accused and he has
given evidence before the Court on the basis of records
maintained in the school. Therefore, no any motive can
attributed to this witness for having deposed before the
Court in favor of the prosecution.
14. The evidence of PW-18 Hanamanthappa,
Tashildar Kundagol was summons by the Court to produce
the documents relating to the date of birth of PW-1 victim.
During the course of his evidence has produced the extract
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of the register Ex-P28 and copy of the relevant register at
Ex-P28(A) and at serial No.133, the name of father of
victim is recorded as Ningappa Naganur and the date of
birth of PW-1 victim is recorded as 20.08.1998. On the
basis of it, the birth certificate was issued by the Tashildar
Ex-P29. In these two documents Ex-P28 and P29, the date
of birth of PW-1 victim is recorded as 20.08.1998. It is
true that there is variation in recording the date of birth of
PW-1 victim in the school records as 02.06.1998, whereas
in the birth extract register maintained by the Tashildar
office, Kundagol the date of birth of PW-1 victim is
recorded as 20.08.1998. There is difference of two months
and odd days in the date of birth recorded by the Tashildar
office as on 20.08.1998. The name of father and mother of
PW-1 victim is not disputed by the accused, therefore, it
can be taken that the birth certificate Ex-P29 pertains to
the prosecutrix. The date of incident is on 24.12.2012. If
the age of PW-1 victim is calculated on the basis of date of
birth of PW-1 victim recorded in the school record Ex-P13,
as 02.06.1998 and the one recorded on the basis of
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register of birth maintained in the office of Tashildar,
Kundagol as 20.08.1998, then in both the circumstances
also the age of PW-1 victim would be 14 plus as on the
date of incident and the victim was minor as on the date of
incident.
15. Learned counsel for accused have contended
that the nurse midwife (ANM) who has given the
information for entering the date of birth of PW-1 victim in
the register extract Ex-P28 and based on it birth certificate
of Ex.P29 came to issued has not been examined. PW-18
Hanamanthappa, Tashildar Kundagol has deposed in his
evidence that nurses of ANM Hospital furnishes
information regarding the date of birth of child born in the
said hospital to the Village Accountant, who records the
same in the Register of Birth maintained with him. After
one year the Register will be sent to the office of Tashildar
Kundagol. It is on the basis of the Register received in the
office of Kundagol, Tahsildar Ex-P28, the birth certificate
of PW-1 victim was issued Ex-P29. The birth register Ex-
P28 will be maintained in the public office by the village
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accountant in discharge of his official duty. The said village
accountant and PW-18 Hanamantappa, Tashildar cannot
have any motive to make false entry in the birth register
maintained in the office of village accountant during
regular course which he was duty bound to maintain in the
ordinary course of his work. There is nothing worth
material that has been brought on record to disbelieve the
evidence of PW-18 Hanamantappa, Tashildar Kundagol
who has issued birth certificate Ex-P29 based on the
entries made in the register of birth Ex-P28. Therefore, in
spite of their being variation of more than two months in
the birth certificate maintained by the school authorities
Ex-P13 and the birth certificate issued by Tashildar office,
Kundgol Ex-P29 cannot take way the case of prosecution.
If the date of incident is taken into consideration on
24.12.2012 and calculated to the age of PW-1 victim
shown in Ex-P13 in the school records as 02.06.1998 and
the one recorded in the birth certificate issued by Tashildar
office Kundagol dated 20.08.1998 then also the fact
remains that PW-1 victim was 14 plus age as on the date
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on incident and she was minor further she was below 16
years as on the date of alleged incident 24.12.2012.
Therefore, considering the evidence of Dr. Sunil Kumar
who has determined age of victim PW-1 between 16 to 18
years and the average age of PW-1 victim is 17 years on
the basis of physical, dental and radiological examination,
further issuance certificate Ex-P24, there is no need to
refer his evidence, in view of the evidence of PW-11
Mahadevappa and the documents Exs-P13, 13 (b), 13 (c),
13 (d) and the one issued by the Tashildar Kundagol Ex-
P29. The trial Court has rightly appreciated the above
referred evidence on record and justified in holding that
PW-1 victim was below 16 years as on the date of
incident.
16. PW-1 victim has deposed to the effect that she
knows both of the accused before court and she was
residing in Bannur Village of Shiggaon Taluk with her
parents and brothers. She had studied up to 9th standard
and left the school. She further deposed to the effect that
her parents got her admitted to school in Saunshi and she
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used to come to her parents house during the holidays.
During 12th month while she was in Bannur, both the
accused by force while she was going to attend nature call,
took her on the motor cycle driven by accused No.1 and
she was pillion rider, accused No.2 sat on the motor cycle
next to her, then they took PW-1 victim to the new bus
stand of Shiggaon. They proceeded in a bus to Badami,
Aihole, Pattadakallu and then Kodipalya of Bengaluru.
While they were in Aihole accused No.1 committed sexual
assault on her in spite of resistance and against her will.
Thereafter, they moved to Pattadakallu and then to
Bengaluru. PW-1 victim and accused No.1 stayed in the
shed near Nelamangala at Kodipalya, they were in the said
shed for about 8 days. Thereafter, accused No.1 left PW-1
victim near stream of Bannur. She went to the house and
informed about the incident to her mother.
16(a) PW-1 victim has further deposed that her
mother brought her to Saunshi and left in the house of her
grandfather. While herself and her grandfather were
proceeding to their land for getting fire wood, at that time
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both the accused by pulling her grand father forcibly took
PW-1 victim in the vehicle brought by them and in spite of
her resistance, she was not left by the accused. Accused
took PW-1 victim to the Saunshi railway station and then
they proceeded through railway to Bengaluru and accused
No.1 kept her in the said shed. Accused No.2 left the place
by saying that he has work and went to Goa. Accused
No.1 during their stay in the shed for about one and half
month repeatedly committed sexual assault on her under
threat. She further deposed to the effect accused No.1 has
taken her gold ear stud and gold chain, when she refused
for the same, accused No.1 abused her. Thereafter,
Kundagol police brought them to Kundagol and she has
given her statement, she was subjected to medical
examination and showed the house, further she has
identified the photograph shown to her Ex-P1 and P2.
17. PW-2 Mahadevappa grandfather of PW-1 victim
has deposed to the effect that about 6 months back while
himself and PW-1 victim were proceeding to their land for
getting fire wood, at that time both the accused on the
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way came and pushed him to the ground. They forcibly
taken his grand daughter PW-1 victim in the vehicle
brought by them. He has informed over phone about the
incident to his daughter PW-3 Laxmavva who is the
mother of PW-1 victim. Thereafter, his daughter filed
complaint and police traced PW-1 victim and accused No.1
in Bengaluru and brought them to Kundagol. Police have
visited his house and he has given statement before the
police.
18. PW-3 Laxmavva has deposed to the defect that
she has got 3 children and PW-1 victim is her daughter
who is now aged 15 years and she do not know the date of
birth of her daughter. About 6 months back in Bannur
village her daughter PW-1 victim was proceeding to attend
nature call, accused by closing the mouth of her daughter
by force took her to Badami Banshankari. PW-1 victim has
disclosed the said fact to her when she came back to the
house after 8 days. She further deposed to the effect that
in spite of her search, PW-1 victim was not traced in
Bannur village. There was rumor in the village that mother
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of PW-1 victim is going to file the complaint, her daughter
was brought and left in Bannur village. In order to avoid
such incident in future, she has left her daughter PW-1
victim in Saunshi, where her father was residing.
18(a) She further deposed to the effect that her
daughter was admitted in Saunshi school. After 8 days of
leaving her daughter PW-1 victim in Saunshi, while her
father and daughter PW-1 victim were proceeding to get
fire wood from their land, the accused came to the said
place and by force after closing her mouth carried PW-1
victim in the vehicle brought by them. Thereafter, her
father PW-2 Mahadevappa has informed her over phone
about the incident. She searched her daughter PW-1
victim for about 8 days and she was not traced, she filed
the complaint Ex-P3. After 1 month of filing said complaint
Ex-P3, Kundagol police have brought her daughter PW-1
victim and accused No.1 from Bengaluru. On enquiry with
her daughter, she disclosed that she was kept in
Bengaluru and was not allowed to leave the said place and
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accused No.1 has spoiled her life. She accordingly given
statement before the police.
19. On careful perusal of the above referred
evidence of PW-1 victim, PW-2 Mahadevappa, grand father
of PW-1 victim and PW-3 Laxmavva, mother of PW-1
victim, it would go to show that she is not an eye witness
to the incident of kidnapping her daughter from Bannur or
from Saunshi. Her evidence is based on the revelation
made by her daughter PW-1 victim with regard to the
incident of kidnapping from Bannur village and with regard
to the kidnapping incident from Saunshi through the
phone call of her father PW-2 Mahadevappa. Her evidence
can be relied only to the extent of her daughter PW-1
victim was out of the custody of lawful guardian ship when
the first incident took place in Bannur village. Thereafter,
she left her daughter in the house of her father PW-2
Mahadevappa in Saunshi village and she was admitted to
the school in Saunshi.
20. The tenor of cross-examination of PW-1 victim
and also PW-2 Mahadevappa and PW-3 Laxmavva would
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go to show that accused have not denied of PW-1 victim
being in the company of accused No.1 and 2 when both
the incident of kidnapping from Bannur and Saunshi took
place. PW-1 victim has categorically stated that accused
No.2 has done nothing to her. The defence counsel
representing accused No.1 during the cross-examination
suggested that PW-1 victim was in love with accused No.1
and she has denied the same. It is further suggested to
victim that she herself forced accused No.1 to take her out
of the village and same is denied by the victim. In
paragraph 23 of cross-examination of PW-1, it has been
suggested to her that she herself came to Bengaluru and
asked accused No.1 not to leave her. However, accused
No.1 told her that she has not yet completed 18 years and
advised her, but she threatened of committing suicide and
started crying. Due to which, on mercy he allowed PW-1
victim to reside in the house with him as friends and the
same is denied by the victim. She stayed in the house with
him for about one and half months on her own volition and
he has not committed any sexual assault on her. If the
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above referred cross-examination is perused, then it would
go to show that accused No.1 has taken inconsistent stand
regarding PW.1 victim herself joined to him at Bengaluru.
Therefore, without there being any corroboration to the
above referred defence of accused No.1, the contention of
accused No.1 that PW.1 victim herself joined to him
cannot be accepted in the given facts and circumstances of
the case and the evidence on record. It has been
suggested to PW-2 Mahadevappa that his wife herself has
sent PW-1 victim to the railway station with cash and
cloths and the witness has denied the same. However,
PW-3, the mother of victim has admitted in her cross-
examination that accused No.1 was loving her daughter.
21. During the cross-examination of PW-1 victim,
some contradictions have been elicited and such
contradictions have been marked as Ex-D1,
Ex-D1(a), Ex-D1(b) which pertains to the fact that PW-1
victim was loving accused No.1 and in turn accused No.1
was also loving her, further, she was expressing her desire
to marry accused No.1 and living peacefully. The said
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contradictions are related to the alleged love affair
between prosecutrix and accused No.1. These
contradictions in the evidence of PW-1 victim could have
been appreciated if PW-1 victim was minor as on the date
incident. In view of the reasons recorded above, it is held
that the prosecution has proved that PW-1 victim was
below the age of 15 years as on the date of incident.
Therefore, the above referred contradictions and the
admission of PW-3-Laxmavva, mother of victim that
accused No.1 was loving PW-1 victim cannot affect the
case of prosecution. If for the sake of arguments, even if
it is to be accepted that PW-1 victim has moved with
accused No.1 at different places and they were living
together in the shed at Kodipalya, Bengaluru without their
being any resistance from PW-1 victim and she was
residing with accused No.1 in the shed, then such consent
of minor is no consent at all in eye of law.
22. The trial Court in para 39 and 40 of its
judgment with reference to judgment of Hon'ble Apex
Court in State of Haryana vs. Basti Ram reported in
- 29 -
2013(2) SCC 200 and another judgment in O.M.BABY
v/s State of Kerala reported in (2013)1 SCC (Cri)
658 with respect to appreciation of medical evidence has
recorded finding that principles enunciated in both the
aforementioned judgments of Hon'ble Apex Court would
clear that the absence of any injuries or marks of violence
on the person of prosecutrix may not be decisive factor,
particularly, in a situation where the victim did not offer
any resistance on account of threat or fear meted out to her.
23. PW-1 victim is the prime witness in this case
and in the nature of incident like on hand, independent
witnesses cannot be expected. If the evidence of PW-1
victim is found trust worthy, the same has be accepted.
PW-1 victim during the course of her evidence is firm and
certain about accused No.1 having committed sexual
assault on her while they stayed in Aihole and in the shed
of Kodipalya of Bengaluru. There is nothing worth material
evidence that has been brought on record to discredit her
evidence. The evidence of PW-3 Laxmavva, mother of
victim PW-1 has narrated about the incident revealed by
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her daughter and filing of the complaint Ex-P3. The
evidence on record would also suggest that PW-1 victim
was out of lawful custody of her parents and she was in
the company of accused No.1 in the shed at Kodipalya of
Bengaluru. The evidence of PW-2 Mahadevappa, grand
father of PW-1 victim would go to show that he is the eye
witness to the incident of kidnapping PW-1 victim in
Saunshi village while himself and PW-1 victim were
proceeding to their land for getting fire wood. He has
deposed to the effect that both the accused by force took
PW-1 victim by pulling him to the ground in the vehicle
brought by them. There are absolutely no any valid reason
to discard the evidence of PW-2 Mahadevappa,
grandfather of PW-1 victim that both the accused have
kidnapped victim PW-1 from Saunshi village and took her
in the vehicle brought by them by pushing him to the
ground. The evidence of PW-1 victim is consistent
regarding she being kidnapped by both the accused from
Bannur and Saunshi village. The contention of accused
No.1 that PW-1 victim on her own volition came to
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Bengaluru and he allowed PW-1 victim to reside in the
shed with him on mercy cannot be legally sustained, since
PW-1 victim was below the age of 15 years as on the date
of incident. The fact of PW.1 victim being minor was within
the knowledge of accused No.1, since even according to
him, he has advised PW.1 victim that she has not yet
completed 18 years.
24. PW-1 victim is firm and consistent in her
statement during the course of her evidence that accused
No.1 has committed penetrative sexual assault on her in
Aihole and also repeated penetrative sexual assault in the
shed while they were residing together in the said shed.
The contention of accused No.1 that PW-1 victim herself
came to Bengaluru and asked him not to leave her, though
he advised PW-1 victim that she has still not completed
the age of 18 years. However, PW.1 victim was not
amenable to such advice and threatened of she
committing suicide, therefore he allowed PW-1 victim to
reside with him on mercy. It means that accused No.1
wants to claim that PW-1 victim was consenting party to
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all the acts of accused No.1. Such consent of PW-1 victim
is no consent at all in the eye of law. Therefore the
contention of accused No.1 that PW-1 victim was
consenting to the acts of accused No.1 cannot be legally
sustained.
25. The evidence of PW-8 Yogananda, would go to
show that he has examined accused No.1 and issued the
certificate Ex-P9 on the basis of FSL report of the articles
sent for FSL examination MO Nos.1 to 7 and also stated
that there is nothing to suggest that the person cannot
perform sexual act. The said evidence of PW.8 Yogananda
would go to show that accused No.1 is capable of
performing sex.
26. PW-9 Dr. Drakshayani Patil, has examined the
victim girl on 01.02.2013 at 4.10 p.m. She only deposed
to the effect that on examination of vagina, foul smell was
emanating and the hymen admitted two fingers easily. The
victim has informed her that she had changed her cloths
after taking bath. PW-1 victim was referred to KIMS
Hospital, Hubli for further examination.
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27. PW-10 Dr.Nachiketh has examined PW-1 victim
on 01.02.2013 at KIMS, Hubli and there were no external
injuries on the body of PW-1 victim and there were also no
evidence of fresh sexual intercourse and the victim is used
to act like that of sexual intercourse and accordingly he
issued certificate Ex-P12. The witness has offered
explanation regarding fresh injuries means sexual
intercourse within 5 hours from the time of examination.
28. On critical analysis of the evidence of PW-9
Dr.Drakshayani Patil and PW-10 Dr.Nachiketh, it would go
to show that there is material evidence that the victim is
used to act like that of sexual intercourse. The incident in
question took place on 24.12.2012 and PW-1 victim was
examined on 01.02.2013. There is sufficient time gap in
between the period, therefore nothing could be traced out
about PW-1 victim being subjected to sexual intercourse
while she was in the company of accused No.1 in the shed
at Kodipalya, Bengaluru. The medical evidence relied by
the prosecution would not be conclusive to hold that victim
was not subjected to penetrative sexual assault recently.
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The evidence of PW-1 victim is firm and consistent
regarding accused No.1 having committed penetrative
sexual assault on her by force in spite of her resistance.
The trial Court with reference to the judgment of Hon'ble
Apex Court in O.M.Baby v/s State of Kerala supra has
appreciated the evidence of PW-1 victim and held that the
evidence of PW-1 victim is reliable to prove the fact that
accused No.1 has committed penetrative sexual assault on
her. The fact that PW-1 victim and accused No.1 were
traced in Kodipalya, Bengaluru by police and brought them
to Kundagol has not been denied by accused No.1. There
is nothing worth material that has been brought on record
during the cross-examination of PW-1 victim that she has
reason to falsely implicate accused No.1 having committed
penetrative sexual assault on her by putting her character
at stake. The defence of accused also assumes much
importance while appreciating the evidence of PW-1
victim. The contention of accused No.1 that himself and
victim were in love and though they intended to marry,
the caste matter of PW-1 victim and the accused No.1
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came in the way of their further proceeding in the
marriage and his further contention that he allowed PW-1
victim to live in his house with him on mercy cannot be
legally sustained, since PW-1 victim is below the age of 15
years.
29. The evidence of PW-15-Mahadevappa-ASI and
PW-16 Gurulingappa Maribashetti who are the
investigating officers of the case have deposed about the
investigation carried out by them after criminal law was
set into motion. The evidence of PWs. 4 to 7 and 17 is with
respect to panchanama prepared in their presence Exs.
P4, P6, P7 and P17 and the said evidence has not been
seriously disputed by the defence.
30. The learned counsel for accused in both the
appeals have argued that Auto or Four Wheeler, Motor
Cycle said to have been used by accused for kidnapping
PW-1 victim have not been seized in this case. The non
seizer of the vehicle used by accused for kidnapping PW-1
victim cannot be fatal to the case of prosecution which
- 36 -
would be sufficient enough to discard the oral testimony of
PW-1 victim about accused No.1 having committed
penetrative sexual assault on PW-1 victim. The above
referred evidence placed on record by the prosecution
would go to show that PW-1 victim was kidnapped for the
first time by the accused Nos.1 and 2 from Bannur village
and on the second occasion from Saunshi village. PW-1
victim was subjected to penetrative sexual assault in spite
of her resistance against her will.
31. Accused No.2 has taken specific defence of plea
of alibi. It is his contention that he was working in Goa as
on 24.12.2012 and not present with accused No.1 as
alleged by PW-1 victim. In support of such contention
relied on the evidence of DW-2-Shobha and got examined
DW-3, who is his uncle. DW-2 and DW-3 during the course
of their evidence have deposed about accused No.2 was
working under DW-2-Shobha and wages are paid to
accused No.2. DW-2 has produced Exs.D4, D5 and D6.
The witness has also produced Exs. C1 and C2 muster roll
and wage register respectively. DWs. 2 and 3 have been
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subjected to cross-examination by the learned Spl. Public
Prosecutor. The evidence of both the witnesses DWs. 2
and 3 has been meticulously examined by the trial Court
and in view of the discrepancies found in Exs. D4 and D5
and the over writing, further muster roll before August
2012 was kept blank and two separate registers are
maintained for two separate work by the same Company,
the trial Court rightly disbelieved the evidence of DWs. 2
and 3 as against the consistent evidence of PW-1 victim
about the presence of accused No.2 on both the occasions
of kidnapping PW-1 victim from Bannur and Saunshi. The
said evidence is also further corroborated by evidence of
PW-2-Mahadevappa, who is the eye witness to the
kidnapping incident that took place in Saunshi village while
himself and PW-1 victim were proceeding to their land to
collect the fire wood.
32. The trial Court has rightly acquitted the accused
No.2 for the reasons recorded in Para No.65 of it's
judgment for the offence punishable under Section 366A
of IPC. On the basis of evidence placed on record, the trial
- 38 -
Court has convicted the accused No.1 for the offences
punishable under Sections 366, 506 and 376 of IPC and
Section 6 of POCSO Act. Accused No.1 and 2 both were
convicted for the offence under Section 363 R/w Section
34 of IPC. Accused No.2 is held to be guilty for the offence
under Section 17 of POCSO Act. The trial Court has
rejected the contention of counsel for accused No.2 that if
any abetment is caused, then it is only with reference to
offence under Section 363 R/w Section 34 of IPC. On
going through Section 17 of POCSO Act, it would go to
show that whoever abets any offence under this Act, if the
act abetted is committed in consequence of abetment,
shall be punished with imprisonment provided for that
offence. Section 17 of POCSO Act is only enabling
provision and not independent penal action. If accused
No.2 is to be convicted for the offence under Section 17 of
POCSO Act, then the act complained must be committed
under the provisions of POCSO Act. Looking to the
evidence placed on record by the prosecution, it is evident
that the role of this accused No.2 along with accused No.1
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is related for the offence under Section 363 of IPC alone.
PW-1 victim herself has categorically admitted in her
evidence that accused No.2 has not done anything to her.
PW-1 victim evidence is silent about accused No.2 having
any knowledge or has instigated accused No.1 to commit
penetrative sexual assault on PW-1 victim while they were
in Aihole. According to the evidence of PW-1 victim also,
accused No.2 after leaving PW-1 victim and accused No.1
at Kodigepalya in Bengaluru left for his work to Goa.
Therefore, there is no question of accused No.2 abetting
accused No.1 for committing sexual assault on her. There
is also no evidence on record in the form of evidence of
PW-1 victim that accused No.2 at any point of time again
came to Kodigepalya village in Bengaluru and at his
instance accused No.1 committed penetrative sexual
assault on her. Therefore, under these circumstances, the
conviction of accused No.2 for the offence under Section 6
R/w Section 17 of POCSO Act cannot be legally sustained.
33. The trial Court has rightly convicted accused
No.1 based on the evidence on record for the offences
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punishable under Section 363 R/w Section 34 of IPC, 366,
376, 506 of IPC and Section 6 of POCSO Act and also in
convicted accused No.2 for the offence under Section 363
R/w Section 34 of IPC. On the question of imposition of
sentence, the trial Court on rightly appreciating the facts
and circumstances of the case imposed appropriate
punishment for the proved offences against accused Nos.1
and 2 for the offence under Section 363 R/w. Section 34 of
IPC and the same does not call for any interference by this
Court. Consequently, proceed to pass the following :
ORDER
Appeal filed by appellant-accused No.1 in Crl.A
No.100020/2014 is hereby dismissed as devoid of merits.
Appeal filed by appellant-accused No.2 in Crl.A
No.100011/2014 is hereby partly allowed.
The judgment of conviction passed by trial Court
against accused No.2 for the offence under Section 6 R/w
Section 17 of POCSO Act is hereby set aside.
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The judgment of trial Court for the offences against
accused No.2 for the offence under Section 363 R/w
Section 34 of IPC stands confirmed.
The Registry is directed to transmit the records of
trial Court with copy of this judgment.
Sd/-
JUDGE
AMA
