Karnataka High Court

The State vs Sri Raghu Yane Kabeera on 5 January, 2024

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                             -1-
                                     CRL.A. No.981 OF 2017




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 5TH DAY OF JANUARY, 2024
                        PRESENT
     THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                          AND
          THE HON'BLE MR. JUSTICE ANIL B KATTI
               CRL.A No.981 OF 2017 (A)
BETWEEN:

    THE STATE BY CHALLAKERE POLICE
    REPRESENTED BY STATE PUBLIC PROSECUTOR
    HIGH COURT BUILDING
    BANGALORE-560 004
                                          ...APPELLANT
(BY SRI.B.LAKSHMAN, HCGP)

AND:

1.    SRI RAGHU YANE KABEERA
      SON OF SRINIVASA
      AGED ABOUT 23 YEARS
      COOLIE
      R/AT NEXT TO KATAYYA'S HOUSE
      MADAKARI NAGARA
      CHALLAKERE NAGARA
      CHITRADURGA DIST.

2.    SRIDEVI
      W/O R.SHIVAJI RAO
      AGED ABOUT 42 YEARS
      R/AT ACHAR STREET
      ASSAR MOHALLA
      AJJANAGUDI ROAD
      CHALLKERE TOWN
      CHITRADURGA DISTRICT

                                      ...RESPONDENTS
(BY SRI.GOPALAKRISHNAMURTHY C., ADVOCATE FOR R1
    R2- SERVED)
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                                            CRL.A. No.981 OF 2017




     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 31.01.2017 PASSED BY THE SPECIAL II ADDITIONAL
DISTRICT AND S.J., CHITRADURGA IN SPL. C. (POCSO)
NO.05/2016         THEREBY        ACQUITTING        THE
RESPONDENTS/ACCUSED OF THE OFFENCES P/U/S 366 AND
376 OF IPC SEC. 4 AND 6 OF POSCO ACT.

      THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 23.09.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI,
J., DELIVERED THE FOLLOWING:



                              JUDGMENT

Appellant/State feeling aggrieved by the judgment of

Trial Court on the file of Special II Addl.District and

Sessions Judge, Chitradurga in Special Case

(POCSO)No.05/2016, dated 31.01.2017 preferred this

appeal.

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 on

07.01.2016 at about 12.15 p.m. near Asarmohalla,

CRL.A. No.981 OF 2017

Ajjanagudi road of Challakere town, accused in front of the

house of CW.1 Shivajirao kidnapped his daughter CW.6

victim with an intention to marry her and thereafter

forcibly took her in the bus to Haravadi village of Koodlagi

Taluk. The accused has confined CW.6 victim in the house

of CW.11 Ramachandrappa from 07.01.2016 to

12.01.2016 and during this period accused has committed

forcible sexual assault on CW.6 victim. Thereafter, on

13.01.2016 at 10 a.m. accused left CW.6 victim near

Challakere bus stand and escaped from the spot.

3(a). The father of victim CW.1 Shivajirao on

receiving information from his wife CW.4 Sridevi on

07.01.2016 at about 1 p.m. that she had gone to take

bath. After bath when she came out CW.6 victim was not

in the house and in spite of search in the nearby places,

she was untraceable. He immediately came to the house

and searched for CW.6 victim and enquired with the

relatives, since CW.6 victim was untraceable filed the

missing complaint on 08.01.2016.

CRL.A. No.981 OF 2017

3(b). After returning of CW.6 victim to the house on

13.01.2016, the mother of victim CW.4 Sridevi filed the

complaint on revelation of incident by CW.6 victim, that

accused had taken CW.6 victim to the house of CW.11

Ramachandrappa on the pretext of marrying her and

confined in the said house from 07.01.2016 to

13.01.2016. Accused has committed sexual assault on

CW.6 victim in the said house, in spite CW.6 victim

objecting for the same. The said complaint was registered

in Challakere Police Station crime No.0004/2016 for the

offence punishable under Section 363 of IPC. The

Investigating Officer after completing investigation filed

charge sheet against accused for the offence punishable

under Sections 366, 376 of IPC and Sections 4 and 8 of

POCSO Act.

4. In response to the summons, accused has

appeared through his counsel. The Trial Court on being

prima facie satisfied of the charge sheet material framed

charge for the offence punishable under Sections 366, 376

CRL.A. No.981 OF 2017

of IPC and Sections 4 and 8 of POCSO Act. Accused

pleaded not guilty and claimed to be tried. Prosecution in

order to prove the allegations made against the accused

relied on the oral testimony of PWs.1 to 21 and the

documents at Exs.P.1 to P.26, so also got identified MOs.1

to 15. The accused got confronted the photographs

Exs.D.1 to D.8.

5. On closure of the prosecution evidence, the

statement of accused under Section 313 of Code of

Criminal Procedure, 1973 (hereinafter for brevity referred

to as `the Cr.P.C.') came to be recorded. Accused has

denied all the incriminating material evidence appearing

against him and claimed that false case is filed. The Trial

Court after appreciation of evidence on record acquitted

the accused from the charges leveled against him.

6. Appellant/State challenging the judgment of

acquittal, contended that Trial Court has not properly

appreciated the evidence placed on record by the

prosecution. The evidence of PW.15 victim would clearly

CRL.A. No.981 OF 2017

goes to show that as on the date of incident she was

minor and accused on the promise of marrying her

kidnapped PW.15 victim in front of her house and kept in

the house of PW.10 Ramachandrappa from 07.01.2016 to

12.01.2016. The evidence of PW.15 victim also goes to

show that accused has left her in Challakere bus stand and

escaped from the place. The said evidence of PW.15 victim

is duly corroborated by the evidence of her parents

PW.13 Shivajirao and PW.14 Sridevi. PW.12

K.Chandramohan has also spoken about the case as made

out by the prosecution. The said evidence is further

corroborated by the medical evidence PW.19 Dr.Ashok,

PW.5 Dr.Shama Parveen and PW.6 Dr.A.M.Sunanda. The

FSL report Ex.P.5 would go to show that seminal stains

were found on item Nos.1 and 12, in the rest of the

articles seminal stains were not detected, skin tissue was

not detected on item No.13, spermatozoa was not

detected on item Nos.4, 5 and 6. However, the oral

testimony of PW.15 victim and the medical evidence of

PW.5 Dr.Shama Parveen would go to show that on the

CRL.A. No.981 OF 2017

basis of FSL report she has given opinion that sexual

intercourse has taken place with PW.15 victim. The age of

victim has been proved by the evidence of PW.11

Devaraju, Principal of the school and PW.19 Dr.Ashok who

has conducted the ossification test of victim and given

report Ex.P.20, based on the X-ray of teeth Ex.P.21. The

Trial Court without properly appreciating the above

referred material evidence on record has recorded

contrary findings which cannot be legally sustained.

Therefore, prayed for allowing the appeal and to set aside

the judgment of Trial Court, consequently to convict the

accused for the offence alleged against him.

7. In response to the notice of appeal, respondent

No.1 appeared through his counsel, respondent No.2

though served remained unrepresented.

8. Heard the arguments of both sides.

9. After hearing both sides and on perusal of the Trial

Court records following points arise for consideration:

CRL.A. No.981 OF 2017

1) Whether the prosecution has proved beyond all reasonable doubt that on 07.01.2016 at about 12.15 p.m. near Asarmohalla, Ajjanagudi road of Challakere town, while PW.15 victim standing in front of her house accused knowing full well that she is minor, with an intention to marry her kidnapped from the said place and took her to the house of PW.10 Ramachandrappa and kept her in his house from 07.01.2016 to 12.01.2016 thereby, committed an offence punishable under Section 366 of IPC?

2) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place accused after having kidnapped PW.15 victim while she was standing in front of her house and with an intention to marry her, further kept her in the house of PW.10 Ramachandrappa from 07.01.2016 to 12.01.2016 and knowing that she is minor, has committed sexual intercourse with her against her wish and will, thereby committed an offence punishable under Section 376 of IPC and Sections 4 and 8 of POCSO Act?

CRL.A. No.981 OF 2017

3) Whether interference of this Court is required?

10. On careful perusal of oral and documentary

evidence placed on record, it would go to show that on

07.01.2016 at about 12.15 p.m. near Asarmohalla,

Ajjanagudi road of Challakere town, accused in front of

house of PW.13 Shivajirao kidnapped the PW.15 victim

with an intention to marry her and thereafter forcibly took

her in the bus to Haravadi village of Koodlagi Taluk and

confined in the house of PW.10 Ramachandrappa from

07.01.2016 to 12.01.2016. During the said period accused

against the wish of PW.15 victim has committed sexual

assault on her. The case of accused is one of total denial

and claims that false case is filed against him.

11. Learned High Court Government Pleader for

appellant/State has argued that PW.15 victim during the

course of her evidence has narrated about the incident

regarding kidnapping her from the place in front of her

house and keeping in the house of PW.10

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CRL.A. No.981 OF 2017

Ramachandrappa from 07.01.2016 to 12.01.2016 and

during the said period the accused has committed sexual

assault on her. The said evidence is duly corroborated by

the medical evidence of PW.5 Dr.Shama Parveen who has

examined the victim and issued wound certificate Ex.P.3

pending FSL report and collected MOs.1 to 8. On the basis

of FSL report Ex.P.5 final opinion is given Ex.P.4 stating

that sexual intercourse has taken place. The age of victim

is proved by the prosecution by examining PW.11

Devaraju, Principal of the school where victim has studied

and the school register extract Ex.P.12, the date of birth of

victim is recorded as 30.09.2000 and as on the date of

incident PW.15 victim was minor. Therefore, the consent

of PW.15 victim minor is no consent under the eye of law.

The evidence of PW.15 victim is duly corroborated by

the evidence of PW.12 K.Chandramohan, PW.13 Shivajirao

and PW.14 Sridevi. The evidence of PW.16 Durugeshi,

PW.17 Manjunath though turned hostile regarding the

preparation of panchanama in the house of PW.10

Ramachandrappa, where victim and accused stayed, but

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CRL.A. No.981 OF 2017

identified their signature on the panchanama Ex.P.15. The

statement given by PW.15 victim before PW.7 Kamalamma

WPSI Ex.P.9 and the one before Magistrate Ex.P.17 would

go to show that PW.15 victim has narrated about the

sexual assault committed by accused in the house of

PW.10 Ramachandrappa. The contrary findings recorded

by the Trial Court is against the above referred evidence

on record cannot be legally sustained.

12. Per contra, learned counsel for the accused has

argued that there is no basis for recording the Date of

Birth of PW.15 victim in the school records and the

evidence of PW.9 Lakshmibai is unreliable without

producing the date of birth extract or the documents of

school from where she was first admitted to the school.

The evidence of PW.19 Dr.Ashok who has conducted

ossification test has given report Ex.P.20 and the age

shown estimated age as 17 years with plus or minus of 2

years. Therefore, the age beneficial to the accused has to

be accepted. PW.15 victim was subjected to sexual assault

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CRL.A. No.981 OF 2017

against her will has not been established by the

prosecution, out of the evidence placed on record. The

Trial Court has rightly appreciated the evidence on record

and the findings recorded by the Trial Court are based on

the material evidence placed on record by the prosecution

which does not call for interference of this Court.

13. Before proceeding further in analysing the

evidence led in the matter, it is to be borne in mind that it

is an appeal against the judgment of acquittal of the

accused from the alleged offence punishable under

Sections 366, 376 of IPC and Sections 4 and 8 of POCSO

Act. Therefore, the accused has primarily the double

benefit. Firstly, the presumption under law that, unless the

guilt is proved, the accused has to be treated as innocent

in the alleged crime. Secondly, the accused is already

enjoying the benefit of judgment of acquittal passed under

the impugned judgment. As such, bearing the same in

mind, the evidence placed by the prosecution in the

matter is required to be analysed.

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CRL.A. No.981 OF 2017

(a) Our Hon'ble Apex Court, in its judgment in the

case of Chandrappa and others -vs- State of Karnataka,

reported in (2007) 4 Supreme Court Cases 415, while

laying down the general principles regarding powers of the

Appellate Court while dealing in an appeal against an order

of acquittal, was pleased to observe at paragraph 42(4)

and paragraph 42(5) as below:

" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

(b) In the case of Sudershan Kumar -vs- State of

Himachal Pradesh reported in (2014) 15 Supreme Court

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CRL.A. No.981 OF 2017

Cases 666, while referring to Chandrappa's case (supra),

the Hon'ble Apex Court at Paragraph 31 of its Judgment

was pleased to hold that, it is the cardinal principle in

criminal jurisprudence that presumption of innocence of

the accused is reinforced by an order of acquittal. The

Appellate Court, in such a case, would interfere only for

very substantial and compelling reasons.

of Kerala, reported in (2022) 8 Supreme Court Cases 440,

at Paragraph 25 of its judgment, the Hon'ble Apex Court

was pleased to observe as below:

" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that

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CRL.A. No.981 OF 2017

enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

The above principle laid down by it in its previous

case was reaffirmed by the Hon'ble Apex Court, in the

case of Ravi Sharma -vs- State (Government of NCT of

Delhi) and another reported in (2022) 8 Supreme Court

Cases 536.

The Hon'ble Apex Court in another latest judgment in

Roopwanti Vs. State of Haryana and others reported

in 2023 SCC online 179, wherein it has been observed

and held in paragraph No.7 that:

" In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of full trial is strengthened and stands forfeited. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the forfeited presumption of innocence. This fortification of the presumption

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CRL.A. No.981 OF 2017

of innocence has been held in a catena of judgment by this Court".

It is keeping in mind the above principles laid down

by the Hon'ble Apex Court, we proceed to analyse the

evidence placed in this matter.

14. The prosecution to prove the spot from where

PW.15 victim was kidnapped in front of the house of

complainant PW.13 Shivajirao relied on the oral testimony

of PW.1 Jayanna, PW.2 Prashanth, PW.8 Sulochanamma

owner of house and that of Investigating Officer PW.20

Venkatesh N. PW.1 Jayanna and PW.2 Prashanth during

the course of their evidence have deposed to the effect

that on 09.01.2016 between 10.00 a.m. to 10.30 a.m.

they were called in front of the house of complainant

PW.13 Shivajirao and showed the place from where his

daughter was kidnapped and accordingly spot

panchanama Ex.P.1 was prepared. The evidence of

Investigating Officer PW.20 Venkatesh N would go to show

that he has visited the place of incident on 09.01.2016 and

in presence of PW.1 Jayanna and PW.2 Prashanth drawn

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CRL.A. No.981 OF 2017

the spot panchanama Ex.P.1 shown by complainant PW.13

Shivajirao. The evidence of owner of the house PW.8

Sulochanamma would go to show that she has deposed

about PW.13 Shivajirao being the tenant of her house

residing with his wife, children in the said house. In spite

of they being subjected to cross-examination, nothing

worth material has been brought on record so as to

discredit their evidence. The spot panchanama Ex.P.1 was

prepared in presence of PW.1 Jayanna and PW.2

Prashanth and the evidence of PW.8 Sulochanamma

speaks about PW.13 Shivajirao being her tenant.

Therefore, from the said evidence placed on record, the

prosecution has proved the place of incident from where

PW.15 victim was kidnapped in front of the house of

complainant PW.13 Shivajirao.

15. In a case of sexual assault of child, the

prosecution has to prove the age of PW.15 victim. The

prosecution to prove the said fact relies on the oral

testimony of PW.9 Lakshmibai grand mother of PW.15

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CRL.A. No.981 OF 2017

victim, PW.12 K.Chandramohan brother-in-law of PW.13

Shivajirao, PW.13 Shivajirao and PW.14 Sridevi are the

parents of PW.15 victim. The prosecution also relies on the

evidence of PW.11 Devaraju, Principal of the school where

PW.15 victim was studying. Prosecution further seeks to

rely on the oral testimony of PW.6 Dr.A.M.Sunanda before

whom victim was produced on 16.01.2016 for conducting

ossification test and given her report Ex.P.6 and that of

PW.19 Dr.Ashok who has conducted dental examination,

given report Ex.P.20 with the X-ray of teeth Ex.P.21. The

oral testimony of PW.9 Lakshmibai, PW.12

K.Chandramohan and the parents of PW.15 victim i.e.,

PW.13 Shivajirao and PW.14 Sridevi coupled with the

evidence of PW.15 victim would go to show that the date

of birth of victim is 30.09.2000 and their evidence is

consistent with regard to the date of birth of PW.15 victim.

15(a). PW.11 Devaraju Principal of Kittur Rani

Channamma Residential School, Challakere has deposed to

the effect that PW.15 victim joined to the school during

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CRL.A. No.981 OF 2017

academic year of 2014-15 on 04.07.2014 for 8th Standard

and she studied in the said school for 4 months.

Thereafter, the parents of PW.15 victim have taken

transfer certificate on 27.11.2014. PW.11 Devaraju has

given the school register extract bearing No.57/2014-15

Ex.P.12, wherein the date of birth of PW.15 victim is

recorded as 30.09.2000. It has been elicited in the cross-

examination of PW.11 Devaraju that while admitting

PW.15 victim to the school for 8th standard, the entries in

the school register are recorded on the basis of transfer

certificate produced before him. It means that the defence

admits the basic documents produced before PW.11

Devaraju while getting admitted PW.15 victim to the

school.

15(b). PW.6 Dr.A.M.Sunanda has deposed to the

effect that on 16.01.2016 at 11.15 a.m. women PC, Jyothi

of Challakere has produced PW.15 victim for age

determination. On the basis of radiological examination

X-ray No.6452, dated 16.01.2016 has given opinion that

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CRL.A. No.981 OF 2017

PW.15 victim is between the age of 16 to 18 years Ex.P.6.

PW.19 Dr.Ashok has conducted dental examination of

PW.15 victim on 16.01.2016 sent through Jyothi, WPC of

Challakere Police Station from Challakere General Hospital

Davanagere. On examination of PW.15 victim given

certificate of age determination Ex.P.20 opining that the

estimated age of PW.15 victim is to be 17 years plus or

minus of two years.

16. Learned counsel for the respondent in support of

his contention that ossification test on the basis of

radiological examination may not be an accurate and

sufficient margin either way has to be the allowed, relied

on the judgment of Hon'ble Apex Court in Rajak

Mohammad Vs. State of Himachal Pradesh, reported

in (2018)9 SCC 248, wherein it has been observed and

held that para 9 and 10 as under:

" 9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the

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CRL.A. No.981 OF 2017

totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.

10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."

16(a). Learned counsel for the respondent relies

another latest judgment of Hon'ble Apex Court in

P.Yuvaprakash Vs. State represented by Inspector of

Police reported in 2023 AIR (SC) 3525, wherein it has

been held that age of victim to be determined through

"ossification test" or "any other latest medical age

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CRL.A. No.981 OF 2017

determination test" if transfer certificate and extracts of

admission register of school not available.

17. In the present case PW.15 victim was studying

8th standard in Kittur Rani Channamma Residential School,

Challakere for the year 2014-15 on 04.07.2014 and she

pursued her studies in the said school for about 4 months.

If the age of PW.15 victim has deposed by herself during

the course of her evidence as her date of birth on

30.09.2000 and the same is calculated, then it matches

with the age as on 04.07.2014, the date on which she got

admitted in Kittur Rani Channamma Residential School for

8th standard, the said evidence is duly corroborated by the

evidence of PW.11 Devaraju and it has been elicited by the

defence in the cross-examination that while admitting

PW.15 victim to the school, she has produced transfer

certificate from school where she studied earlier. It means

that basic document regarding the date of birth of PW.15

victim was produced while getting PW.15 victim admitted

to Kittur Rani Channamma Residential School, Challakere.

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CRL.A. No.981 OF 2017

The cross-examination of PW.11 Devaraju would suggest

that the entries in the register extract of school Ex.P.12 is

based on the basic document produced while getting

PW.15 victim admitted to the school. Therefore, apart

from the ossification test of PW.15 victim conducted by

PW.6 Dr.A.M.Sunanda and PW.19 Dr.Ashok conducted

dental examination, there is ample material evidence

placed on record by the prosecution to prove the age of

PW.15 victim as 30.09.2000 referred in the school records

Ex.P.12. The father of victim PW.13 Shivajirao has

deposed in his evidence to the effect that he has given the

date of birth as 30.09.2000 while getting admission of his

daughter to the school, the same has not been specifically

denied by the defence during the cross-examination of

PW.13 Shivajirao. Therefore, the prosecution out of the

above referred evidence on record has proved the date of

birth of PW.15 victim as 30.09.2000 referred in the school

records Ex.P.12. If the same is taken as a basis and

calculated the age of PW.15 victim as on the date of

incident on 07.01.2016, then it would go to show that the

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CRL.A. No.981 OF 2017

victim was 16 years, 4 months as on the date of incident.

Therefore, the prosecution has proved by the above

referred evidence on record that PW.15 victim was minor

as on the date of incident.

18. The prosecution to prove the incident that PW.15

victim was kidnapped from the place in front of the house

of complainant PW.13 Shivajirao and she was subjected to

sexual assault relies on the oral testimony of PW.9

Lakshmibai grand mother of victim, PW.12

K.Chandramohan brother-in-law of complainant, PW.13

Shivajirao and PW.14 Sridevi are parents of PW.15 victim.

The direct evidence is in the form of evidence of PW.15

victim and the evidence of other witnesses as referred

above is based on the revelation of incident by PW.15

victim.

18(a). PW.15 victim has deposed to the effect that

she joined Kittur Rani Channamma Residential School for

8th standard and while she was studying in 9th standard

left the school and residing in the house. She is residing

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CRL.A. No.981 OF 2017

with her parents, brother Muthuraj and grand mother

Lakshmibai. Further, her date of birth is recorded as

30.09.2000 and she knows the accused. While she was

studying in 8th standard accused used to come to her

school and tried to talk with her by taking her name and

use to follow her where ever she goes and stated that I

love you, but she did not respond for the same. However,

the school teachers have informed to her parents. On

receiving such information, her parents and maternal

uncle PW.12 K.Chandramohan have cautioned the

accused, the parents of PW.15 victim discontinued her

education. However, accused used to move around the

house and followed her when ever she goes out of the

house and she informed said fact to her parents. In spite

of caution accused did not stop following her.

18(b). Thereafter parents of PW.15 victim got her

admitted to computer class and mother used to

accompany her for attending the computer classes, some

times she used to go alone. Accused used to follow her

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CRL.A. No.981 OF 2017

and continued his effort to talk with PW.15 victim. Accused

used to ask PW.15 victim to accompany him and he will

marry her. However, she did not agree for the same.

Accused had given mobile to her, after she left the

computer class and she was not allowed to move out of

the house by her parents, but she returned the said

mobile to him.

18(c). On 07.01.2016 her father PW.13 Shivajirao

went out of the house at 9 a.m. for utensil business and

her brother Muthuraj went to school. At about 12.00 p.m.

while mother of PW.15 victim had gone for bath, PW.15

victim went out of the house to collect (mara) at that time

accused was found in front of her house and accused by

holding her hand asked to accompany him. Therefore, she

went with accused, thereafter accused took PW.15 victim

to Haravadi village of Koodlagi Taluk and kept her in the

old house of PW.10 Ramachandrappa. PW.15 victim and

accused used to sleep in the hall at that time accused in

spite of objection of PW.15 victim has committed sexual

assault on her.

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CRL.A. No.981 OF 2017

18(d). Accused has taken PW.15 victim to Bellary,

Bengaluru and other places and on 13.01.2016 between

12.30 p.m. to 1.00 p.m. he left her in Challakere bus

stand and asked PW.15 victim to wait for some time.

However, he did not came back. PW.15 victim went to her

house and narrated about the incident to her mother who

in turn informed about return of PW.15 victim to the house

to her husband PW.13 Shivajirao. On his arrival, they went

to the Police Station and PW.14 Sridevi filed written

complaint. Thereafter PW.15 victim was sent to medical

examination. She also showed the place of incident where

she was kept in the house of PW.10 Ramachandrappa

accordingly panchanama was prepared Ex.P.15. She

further deposed to the effect that she has given statement

before PW.7 Kamalamma, WPSI Ex.P.9 and also given

statement before Magistrate Ex.P.17. Clothes worn by her

on the said day have been collected by the medical officer.

19. The evidence of PW.7 Kamalamma WPSI would

go to show that on 15.01.2016 on the instructions of

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Dy.S.P. report to PW.21 Shamiulla in the office and had

securing the address given by PW.21, address of PW.15

victim from PW.21 Shamiulla went to the house of victim

and recorded the statement of victim Ex.P.9.

19(a). PW.15 victim has also given her statement

before the Magistrate Ex.P.17. The statement given by

PW.15 victim before PW.7 Kamalamma WPSI Ex.P.9 and

the one given before the Magistrate Ex.P.17 would go to

show that she has reiterated her statement about the

incident and accordingly given evidence before the Court.

20. The evidence of PW.9 Lakshmibai grand mother

of victim, PW.12 K.Chandramohan maternal uncle of

PW.15 victim and also the evidence of her parents PW.13

Shivajirao and PW.14 Sridevi would go to show that apart

from they having deposed about the missing of PW.15

victim from 07.01.2016 to 12.01.2016 also have deposed

about the incident of sexual assault by accused as

narrated by PW.15 victim on her arrival to the house.

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20(a). Looking to the cross-examination of PW.15

victim, PW.9 Lakshmibai, PW.12 K.Chandramohan, PW.13

Shivajirao and PW.14 Sridevi, it would go to show that

earlier the family of complainant PW.13 Shivajirao was

residing in Madakarinagar of Challakere and the house of

accused was also situated near to the said house. PW.15

victim and accused No.1 were in love with each other and

due to which PW.13 Shivajirao shifted his house to the

present address. On the same reason, the education of

PW.15 victim was discontinued and thereafter she joined

computer class. However, after noticing that PW.15 victim

and accused continued to talk with each other, the

parents have discontinued her computer class and she was

to be in the house. However, accused continued to talk

with PW.15 victim over phone and also used to talk at

other places secretly. The parents of PW.15 victim adviced

their daughter to disassociate herself from the love affair

with accused and cautioned the accused to discontinue to

talk with PW.15 victim. The said fact has been admitted in

the cross-examination by all the material witnesses i.e.,

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PW.9 Lakshmibai, PW.12 K.Chandramohan and PW.13

Shivajirao, PW.14 Sridevi and PW.15 victim. Accused did

not dispute that he was in love with PW.15 victim and he

was in contact with her even after their love affair was

known to her parents, further even after discontinuation of

education of PW.15 victim, they were secretly talking with

each other and the accused has given mobile to PW.15

victim for being in contact with him. Accused has also not

specifically denied the said fact during the cross-

examination of PW.15 victim. The above referred evidence

of PW.15 victim would go to show that she was in the

company of accused from 07.01.2016 to 12.01.2016. On

the basis of said evidence on record, it is the contention

of the accused that he has not kidnapped PW.15 victim. In

other words wants to claim that PW.15 victim moved with

him voluntarily without there being any force on her. In

view of the reasons recorded above, it is held that PW.15

victim was minor as on the date of incident and her

consent to move with accused is not at all a consent in the

eye of law.

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20(b). The prosecution to prove that victim and

accused stayed in the house of PW.10 Ramachandrappa

relied on the evidence of PW.10 Ramachandrappa panch

witnesses, PW.16 Durgeshi, PW.17 Manjunath to the

panchanama Ex.P.15 on the basis of place shown by

PW.15 victim along with police and panch witnesses.

PW.18 Kavitha is the daughter of PW.10 Ramachandrappa,

PW.3 C.Ramakrishnappa, PDO of Jermali village and issued

the assessment extract of the house standing in the name

of G.Shoba wherein PW.10 Ramachandrappa was residing.

However, PW.10 Ramachandrappa, PW.16 Durgeshi,

PW.17 Manjunath, PW.18 Kavitha have not supported the

case of prosecution. PW.16 Durgeshi and PW.17

Manjunath have admitted their signature on the

panchanama Ex.P.15 as per Ex.P.15 (c) and Ex.P.15(d)

respectively and in the photograph Ex.P.16 both of them

are appearing. The evidence of PW.3 C.Ramakrishnappa

also would go to show that in the house extract Ex.P.2,

the name of daughter in law of Ramachandrappa i.e.,

G.Shoba is appearing as owner, but PW.10

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Ramachandrappa s/o Marappa is residing in the said

house. The Investigating Officer PW.21 Shamiulla has

deposed to the effect that on 15.01.2016 he secured

PW.16 Durgeshi, PW.17 Manjunath and also complainant

PW.15 victim and she showed the house of PW.10

Ramachandrappa in which herself and accused stayed in

the house and accordingly panchanama Ex.P.15 was

prepared. The prosecution by the said evidence on record

has proved the place shown by PW.15 victim where herself

and accused stayed in the house of PW.10

Ramachandrappa.

21. The prosecution relies on the medical evidence of

PW.5 Dr.Shama Parveen who has deposed to the effect

that on 13.01.2016 at 2.30 p.m. PW.15 victim was

produced before her for medical examination with the

history of sexual assault, by examining her she found no

external visible injuries and also no injuries around

genitalia. Vagina hymen rugae present. Admits two finger.

She also collected article Nos.1 to 8 referred in the wound

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certificate Ex.P.3 pending opinion for want of FSL report to

find out whether spermatozoa is present in above

specimen or not. On the basis of FSL report Ex.P.5 she has

given final opinion Ex.P.4 stating that she is of the opinion

sexual intercourse has been taken place.

21(a). PW.4 Dr.Satish Hadimani has deposed to the

effect that on 13.06.2016 accused was produced through

H.C.-243 and P.C.-1356 of Challakere town Police Station

with the history of committing sexual assault and he has

collected article 9 to 15 for FSL examination.

21(b). The above collected articles from PW.15 victim

by PW.6 Dr.A.M.Sunanda and the article Nos.9 to 15 are

collected by PW.14 Dr.Satish Hadimani and they were

subjected to FSL examination. The FSL report Ex.P.5

would go to show that seminal stains were found on the

top (article No.1) collected from PW.15 victim and article

No.12 under garment collected from accused. It is on the

basis of the said information PW.5 Dr.Shama Parveen has

given her final opinion Ex.P.4 stating that sexual assault

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has taken place. The defence though has subjected PWs.5

and 6 to cross-examination, nothing worth material has

been brought on record so as to discredit their evidence.

22. If the above referred material evidence placed on

record by the prosecution is appreciated in the light of

case made out of the prosecution, then it would go to

show that PW.15 victim was found missing from the house

on 07.01.2016 and she was untraced till her arrival to the

house on 13.01.2016. PW.15 victim was in the company

of accused during the said period and both of them stayed

in the house of PW.10 Ramachandrappa. Accused has

subjected PW.15 victim to sexual intercourse while they

were staying in the house of PW.10 Ramachandrappa.

PW.15 victim during the course of her evidence has

narrated about the sexual assault committed by accused

and the same is duly corroborated by the evidence of

PW.6 A.M.Sunanda and given final opinion Ex.P.4 stating

that sexual intercourse has taken place. In view of the

reasons stated above, it is held that PW.15 was minor as

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on the date of incident. Therefore, even if the cross-

examination of PW.15 victim, PW.9 Lakshmibai, PW.12

K.Chandramohan, PW.13 Shivajirao and PW.14 Sridevi is

to be accepted that accused and PW.15 victim were in love

with each other and Exs.D.1 to D.8 photographs

confronted to PW.15 victim during the course of her cross-

examination that she moved with accused without any

objection or resistance, then also such alleged consent of

PW.15 victim is no consent at all in the eye of law. There

is no evidence placed on record by the prosecution to

prove that accused has compelled PW.15 victim for

marriage with him and on such intention has kidnapped

her. On the other hand, the evidence would go to show

that she moved with accused at various places and never

objected for the same. Therefore, the offence punishable

under Section 366 of IPC is not established by the

prosecution.

23. The evidence of PW.15 victim and that of PW.12

K.Chandramohan maternal uncle of PW.15 victim and her

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parents PW.13 Shivajirao, PW.14 Sridevi would go to show

that PW.15 victim was found missing from the house on

07.01.2016 till she returns to her house on 13.01.2016.

Accused left PW.15 victim in Challakere bus stand and

asked her to wait for him. Thereafter he did not came back

to Challakere bus stand, thereafter, PW.15 victim returned

to the house. During the above said period PW.15 victim

was in the company of accused, accused has kept PW.15

victim out of the custody of the lawful guardian of PW.13

Shivajirao and PW.14 Sridevi without their consent which

amounts to kidnapping minor from lawful guardianship

falling within the ambit of Section 361 of IPC which would

attract penal action in terms of Section 363 of IPC.

24. The evidence of PW.15 victim and PW.5

Dr.Shama Parveen, who has examined PW.15 victim, on

the basis of FSL report Ex.P.5 of the articles 1 to 15

collected from PW.15 victim and accused given final

opinion Ex.P.4 stating that sexual intercourse has taken

place. In the entire cross-examination of PW.15 victim,

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they stayed in the house of PW.10 Ramachandrappa has

not been denied. Therefore, there is no reason to

disbelieve the evidence of PW.15 victim that accused has

committed sexual intercourse on her while both of them

were staying in the house of PW.10 Ramachandrappa.

The said fact has been further corroborated by the

evidence of PW.5 Dr.Shama Parveen and the final opinion

Ex.P.4 stating that sexual intercourse has taken place.

They also have no any occasion to stay at any place other

than the house of PW.10-Ramachandrappa. In view of the

reasons recorded above, it is held that the victim is minor

as on the date of incident. Therefore, her consent is no

consent at all in the eye of law. In view of the fact that

victim was minor on the date of incident and she was

being subjected to sexual assault by accused which is duly

corroborated by the medical evidence as referred above,

the prosecution has proved that accused has committed

offence punishable under Section 376 of IPC and Section 4

of the POCSO Act.

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CRL.A. No.981 OF 2017

25. Accused is also charged for the offence under

Section 8 of the POCSO Act. The sexual assault must fall

within the definition of section 7 of the POCSO Act which

can attract penal action under Section 8 of the POCSO Act.

In the present case, it is not the case of only

inappropriately touching any of the parts of the body of

the victim PW.15 attracting penal action under Section 8

of the POCSO Act. The evidence placed on record by

prosecution as referred above would go to show that

accused has committed penetrative sexual assault on

PW.15-victim in terms of Section 3, which attracts penal

action in terms of Section 4 of the POCSO Act. Thus, the

prosecution has proved beyond all reasonable doubt that

accused has committed an offences punishable under

Section 363, 376 of IPC and Section 4 of POCSO Act.

Consequently, we proceed to pass the following:

ORDER

Appeal filed by Appellant/State is hereby partly

allowed.

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CRL.A. No.981 OF 2017

The judgment of Trial Court on the file of Special II

Additional District and Sessions Judge, Chitradurga in

Spl.C.(POCSO) No.5/2016 dated 31.01.2017 is hereby set

aside.

Accused is convicted for the offences punishable

under Section 363, 376 of IPC and Section 4 of the POCSO

Act.

The judgment of acquittal passed by the Trial Court

against accused for the offence under Section 8 of the

POCSO Act stands confirmed.

Call on to hear on quantum of sentence.

SD/-

JUDGE

SD/-

JUDGE

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CRL.A. No.981 OF 2017

DR.HBPSJ & ABKJ 05.01.2024

HEARING ON SENTENCE

Heard both sides on quantum of sentence.

Learned HCGP for appellant/State submits that

accused has committed heinous offence of sexual assault

against PW.15-victim by taking undue advantage of her

minority, has kidnapped her from lawful custody of her

parents and took her to unknown place i.e. to the house of

PW.10-Ramachandrappa where accused has committed

sexual assault on her, has been proved by the

prosecution. Accused is not entitled for any leniency with

respect to the offences proved against him.

Per contra, learned counsel for respondent

No.1/accused submits that the incident in question took

place in 2016 and the entire family is dependent on the

income of accused and he is not a habitual offender. The

learned counsel for respondent No.1 submits that accused

is married and having two children. PW.15 has moved with

accused without there being any force on her own accord.

Therefore, prayed for taking a lenient view.

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It is the sentencing policy that the sentence ordered

must be proportionate to the proved offence against the

accused. The imposition of sentence shall be neither

exorbitant nor flee bite sentence. In the present case,

accused is found guilty for the offences punishable under

Section 363, 376 of IPC and Section 4 of POCSO Act. In

terms of Section 42 of the POCSO Act, where an act or

omission constitute an offence punishable under this Act

and also under Section 376 with other offences of IPC,

then the offender found guilty of such offence shall be

liable to punishment under this Act or under the Penal

Code as provides for punishment which is greater in

degree. The offence under Section 4 of the POCSO Act is

punishable with imprisonment of either description for a

term which shall not be less than 7 years but which may

extend to imprisonment for life and shall also be liable for

fine. The offence under Section 376 of IPC is also

punishable with imprisonment of either discretion for a

term which shall not be less than 7 years but which may

extend to imprisonment for life and also fine. The

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imposition of imprisonment and fine is mandatory for both

the aforesaid offences. Looking to the facts and

circumstances of the case, coupled with the allegations

against accused, we proceed to pass the following :

ORDER ON SENTENCE

Accused - Raghu Yane Kabeera, S/o. Srinivasa, Aged

About 23 Years, Coolie, Residing at next to Katayya's

House, Madakari Nagara, Challakere Nagara, Chitradurga

District is sentenced to undergo rigorous imprisonment for

3 years and pay a fine of Rs.5,000/- and in default of

payment of fine shall undergo additional rigorous

imprisonment for 3 months for the offence under Section

363 of IPC.

Accused is further sentenced to undergo rigorous

imprisonment for 7 years and a pay a fine of Rs.30,000/-

and in default of payment of fine amount, accused shall

undergo additional rigorous imprisonment for 1 year for

the offence under Section 376 of IPC R/w.Section 4 of

POCSO Act.

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CRL.A. No.981 OF 2017

Accused is entitled for the benefit of set-off under

Section 428 of Cr.P.C. for the period having undergone by

him in judicial custody, if any, in the matter.

On realisation of fine amount, the entire fine