Karnataka High Court
Represented By The Police Sub Inspector ... vs Manajappa S/O Durgappa Doddamani ... on 11 January, 2024
-1-
NC: 2024:KHC-D:741-DB
CRL.A No. 100126 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100126 OF 2023 (A)
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
POLICE SUB INSPECTOR,
SHIRAHATTI POLICE STATION,
DIST GADAG THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR
ADVICATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH DIST: DHARWAD 580011.
...APPELLANT
(BY SRI. M.B. GUNDWADE, ADDL. SPP)
AND:
Digitally signed
by
SHIVAKUMAR
HIREMATH MANAJAPPA S/O. DURGAPPA DODDAMANI VADDAR,
Date: 2024.02.02
12:26:48 +0530 AGE: 29 YEARS OCC: AGRICULTURE,
R/O: JALLIGAR TQ: SHIRAHATTI,
DIST: GADAG-582120.
...RESPONDENT
(NOTICE SERVED TO RESPONDENT)
(SRI. VITTHAL S. TELI, AMICUS CURIE FOR RESPONDENT)
THIS CRIMINAL APPEAL IS FILED U/SEC. 378(1) AND (3)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 24.06.2022 AND MODIFIED
ORDER DATED 29.06.2022 PASSED BY THE ADDL. DISTRICT
AND SESSIONS JDUGE, TO CONVICT THE RESPONDENT/
ACCUSEDIN S.C.NO.23/2017 FOR THE OFFENCES PUNISHABLE
-2-
NC: 2024:KHC-D:741-DB
CRL.A No. 100126 of 2023
UNDER SECTION 344, 376(2)(I) OF IPC AND SECTION 4 AND 6
OF POCSO ACT AND TO CONFIRM THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 24.06.2022 PASSED
BY THE TRIAL COURT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 363 OF IPC BY SETTING ASIDE THE ORDER DATED
29.06.2022 SO FAR IT RELATES TO RELEASING THE
RESPONDENT / ACCUSED UNDER SECTION 3 AND 4 OF P.O.
ACT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
JUDGMENT
The state has preferred this appeal against the
judgement and order passed in S.C. No. 23/2017 dated
24.06.2022 by the Addl. District and Sessions Judge
Gadag, wherein, the learned Sessions Judge has acquitted
the accused for the offence punishable under Sections
344, 376(2)(i) of Indian Penal Code and Sections 4 and 6
of the POCSO Act and convicted the accused for the
offences punishable under Section 363 of IPC and thereby
sentenced him to undergo rigorous imprisonment for three
years and to pay fine of Rs.30,000/- and in default, he
shall undergo simple imprisonment for 01 year 06 months
. However the accused filed an application under Sections
3 & 4 of P.O. Act, 1957 and the learned Session Court, by
NC: 2024:KHC-D:741-DB
considering the nature and character of the offender,
released the accused on probation of good conduct with
the condition that, he shall execute personal bond for
Rs.1,00,000/- and two sureties for the like sum for the
period 3 years. It is also ordered that the accused shall
maintain peace and good behaviour during the period of
bond.
2. The facts that have led the appellant-State to
prefer an appeal before this Court are that, on 08.02.2017
the accused/respondent induced the victim to go along
with him without obtaining permission from her parents
and at 1.15 p.m. in the afternoon, he kidnapped her on his
motorcycle bearing registration No.KA-26/R-7726 from the
school premises. The respondent/accused kept the minor
victim in a hut situated in the land belonging to his uncle
Devappa Sannatimmappa Waddar at Jalligeri village, from
08.02.2017 to 10.02.2017. It is the further case of the
prosecution that, the accused took the minor victim to
Kesuvinakere village of Piriyapattana taluk, Mysore district
NC: 2024:KHC-D:741-DB
and wrongfully confined the victim in a farm house
belonging to Smt. Savitri W/o. Ravindrakumar up to
16.03.2017. On the night of her kidnap, the accused
committed forceful intercourse with the victim and
continuously did the said act in the hut of his uncle
Devappa situated at Jalagere village. Hence, initially a
missing complaint has been lodged by P.W.2 and based on
the same, the investigation was set in to motion. During
the course of investigation the Investigating Officer has
traced the minor victim along with respondent/accused.
Thereafter, the Investigating Officer recorded the
statement of victim under 161 as well as Section 164 of
Cr.P.C and registered the FIR against the accused and
invoked the provisions of Sections 4 and 6 of POCSO Act.
3. Thereafter, the Investigation Officer conducted
the investigation by arresting the accused and drawing the
spot mahazar and based on the voluntary statement, the
recovery mahazar also conducted. Further, both the
accused and victim-girl were sent to medical examination
NC: 2024:KHC-D:741-DB
and after obtaining necessary documents from the doctor
and recording statements of all the witnesses, the
Investigating Officer laid the charge-sheet against the
accused for the offence punishable under Sections 363,
344, 376 (2) (i) of Indian Penal Code and under Sections 4
and 6 of POCSO Act, 2012 before the Special Court.
4. Accordingly, the learned Special Judge framed
the charges for the aforesaid offences and read over the
said charges to the accused and the accused denied the
same and claims to be tried.
5. In order to prove the case, the prosecution has
examined in all 28 witnesses as P.W.1 to P.W.28 and got
marked 42 documents as Ex.P.1 to P.42 and 06 material
objects as MO1 to MO6. During the course of cross
examination of the witnesses, the defence also marked 09
documents as Ex.D.1 to D.19. After completion of the
prosecution evidence, the learned Sessions Judge read
over the incriminating evidence to the accused as per the
provisions of Section 313 of Cr.P.C. The accused denied
NC: 2024:KHC-D:741-DB
the same. However, the accused did not choose to
examine any witness on his behalf.
6. After assessment of the oral and documentary
evidence available on record, the learned sessions Judge
acquitted the accused for the charges levelled against the
accused for the offence under Sections 344, 376 (2)(i) of
Indian Penal Code and Sections 4 and 6 of POCSO Act, but
convicted for the offence punishable under Section 363 of
Indian Penal Code, as stated supra. The said Judgment is
challenged under this appeal.
7. The Addl. SPP for the appellant would
vehemently contends that, the learned Sessions Judge
totally failed to appreciate the material evidence and
documents placed before him and acquitted the accused
without appreciating the gravity of the offence. P.W.1 the
victim-girl has categorically stated in her evidence
regarding the kidnap and also commission of the sexual
assault by the accused at different places. Moreover, the
prosecution also proved that the victim-girl was minor at
NC: 2024:KHC-D:741-DB
the time of alleged incident. In such circumstance, the
prosecution proved the offence punishable under Section
376 (2)(i) of Indian Penal Code and Sections 4 and 6 of
POCSO Act. He would further contend that, P.W.2 is the
father of the victim-girl as deposed before the Court about
filing of missing complaint as per Ex.P.4 and also
regarding kidnapping of his daughter by accused. He also
deposed about the forcible sexual act committed by the
accused to his daughter. The trial Judge also failed to
appreciate the certificate issued by the P.W.10 i.e. Head
Master in respect of the age of the victim-girl, so also the
certificate issued by the Doctor i.e. P.W.22 as per Ex.P.27
which depicts that, victim girl was subjected to sexual
assault and the doctor noticed the rupture of hymen. In
such circumstance, the prosecution proved the charges
levelled against him beyond reasonable doubt, in spite of
it, the learned session Judge acquitted the accused for the
charges under Sections 344, 376(2)(i) of IPC and Sections
4 and 6 of POCSO Act. Accordingly, the learned Addl. SPP
prays to allow the appeal and to set aside the impugned
NC: 2024:KHC-D:741-DB
Judgment and to convict the accused for the offences
charged against him.
8. Refuting the above submission made by the
learned Addl. SPP, the Sri. Vitthal S. Teli, learned Amicus
Curia, by supporting the impugned Judgment, inter-alia
contended that, the learned Sessions Judge has passed
the impugned Judgment after considering all the evidences
and documents available on record. The Judgment passed
by the Sessions Court is well reasoned. According to him,
the prosecution utterly failed to prove the alleged sexual
act committed by the accused on the victim-P.W.1. The
prosecution has also proved the age of the victim girl that
she was minor at the time of incident. According to the
learned Amicus Curia, on perusal of the evidence of P.W.1
the victim girl and her father, their evidence cannot be
relied, since there are much contradictions and omissions
forthcoming. Further, the evidence of P.W.1 not
corroborates with the contents of her 164 statement made
before the Magistrate. The evidence of P.W.1 cannot be
NC: 2024:KHC-D:741-DB
termed as one with sterling quality. Hence, the learned
Sessions Judge has rightly acquitted the accused for the
aforesaid offence, accordingly he prays to dismiss the
appeal, by confirming the judgment.
9. Having heard the learned counsel for the
parties, so also the documents made available before us,
the only point that would arise for our consideration is:
"Whether the learned Sessions Judge is
justified in acquitting the accused for the offences
punishable under Sections 344, 376(2)(i) of IPC
and Sections 4 and 6 of POCSO Act, and convicting
the accused for the offence under Section 363 of
Indian Penal Code and thereafter releasing him on
probation of good conduct by allowing the I.A. filed
by the accused under Section 3 and 4 of P.O. Act,
1957?"
10. On cursory glance of the evidence deposed by
the witnesses before the learned Sessions Judge, the
victim-girl in this case examined as P.W.1 and in her
evidence, she deposed that she was studying at 10th
standard in the Government School, Kadakol and accused
- 10 -
NC: 2024:KHC-D:741-DB
is known to her since one year from the date of incident.
Regularly the accused used to visit her house and insisting
her to love him. However, she informed the said matter to
her parents. Though her parents had tried to convince the
accused, despite the accused continued to do the same.
On 08.02.2017 she went to the school at about 1.15 p.m.,
the accused came and informed her that, her mother told
him to bring her. Believing the words of the accused, she
went along with him on the motorcycle. Thereafter, the
accused drove his motorcycle towards Kapattagudda in a
high speed manner. Even though she told to stop the
motorcycle, the accused did not stop. Thereafter, the
accused took her to the hut of his uncle Devappa
Sannatimmappa Waddar and in the said hut the accused
committed sexual intercourse with her and continued the
same for three nights. Under apprehension of the parents,
the accused took her to the Dharmastala. Thereafter he
took her to Kesuvinakere village situated at Periyapattana
taluk of Mysore district and one Savitri provided them a
small house to reside. They have resided in the said house
- 11 -
NC: 2024:KHC-D:741-DB
for about a month. The accused did not allow her to go
anywhere. On 16.03.2017, Shirahatti police came to the
land of Savitri and took her along with the accused to
Shirahatti police station. Thereafter, they recorded her
statement as per Ex.P.1. The P.W.1 treated partly hostile
to the prosecution case. She admitted in the cross-
examination that she had given statement to the police
stating that she was in love with the accused and she
voluntarily went along with the accused because the
accused persuaded to love. She also admitted that, Ex.D.1
to D.18 are the letters written by her to accused. She
further admitted that, the children of her uncle are in
police department.
P.W.2 the father of the victim-girl has deposed that,
his daughter was minor at the time of the incident and she
was studying in the year 2017 in 10th standard. On the
date of the incident i.e. on 07.02.2017 when he returned
from Havanur festival, his daughter was not in the house.
His wife informed the same. Thereafter he lodged the
- 12 -
NC: 2024:KHC-D:741-DB
missing complaint as per Ex.P.4. After one month, the
police traced the accused and his daughter, and brought to
the Shirahatti police station. On enquiry, his daughter
informed that, the accused had kidnapped her and
committed forcible sexual act on her by keeping her in a
room provided by one Savitri.
P.W.3 is the mother of the victim who reiterated the
version of her husband P.W.2.
As far as the other material evidence is cornered,
P.W.10 is the Head Master of the Government High
School, Kadakol, who stated that at the time of incident,
the victim was studying 10th standard in the said school.
P.W.16 is a circumstantial witness deposed in respect
of information given by the Head Master P.W.10 through
Veeranagouda Patil the village Panchayat member to him
in respect of kidnapping the victim by the accused in his
motorbike from the school compound, however, the said
aspect was denied by the Head Master P.W.10.
- 13 -
NC: 2024:KHC-D:741-DB
P.W.22 is the Doctor who examined the victim-girl
and deposed that, there is no evidence of recent sexual
intercourse. The said report was marked as Ex.P.27. He
also stated that, since there is no evidence on
examination, it cannot commented as she was used to
such an act. However, the said Doctor, stated that hymen
is not intact. The prosecution mainly relied on the
evidence of Doctor to prove that the victim was 15 years
of age at the time of the incident. The rest of the
witnesses are the official witness who conducted the
investigation in this case.
11. On careful perusal of the above evidence,
coupled with 164 statement given by the victim girl as per
Ex.P.1 before the Judicial Magistrate, she deposed on oath
that she was in love with her neighbour i.e. the accused
since one year. Preparations were made in her house to
perform their marriage with their uncle as she was not
ready and agreed for the said marriage. As stated by her,
on February, 12 at 01.00 p.m, the accused came and took
- 14 -
NC: 2024:KHC-D:741-DB
her from her school to Kapattagudda. Thereafter, they
went to the hut of their uncle and they went to Shirahatti.
After parking the bike at Neelagiri plantation, they both
went to the Gadag and then Dharmastala. They met one
Savitra when they were in search of job. She invited them
to work in their land. Therefore, she went there for doing
work. On 16th the police came and arrested the accused.
She further deposed that, she went by her own will. On
perusal of her evidence before the Court, she has also
deposed that, she was in love with the accused. However,
in addition to that, she stated that the accused had
committed forcible sexual intercourse with her. On careful
perusal of the evidence of P.W.22 the Doctor, has stated
that there is no evidence of recent sexual intercourse. To
that effect she issued a certificate as per Ex.P.18. Hence,
the evidence of P.W.1 seems quite contradictory to her
deposition before the Magistrate under Section 164 of
Cr.P.C and also the evidence of Doctor P.W.22. Further the
letters written by the victim to the accused as per Ex.D.1
to D.8 clearly depicts that they both were in love with each
- 15 -
NC: 2024:KHC-D:741-DB
other. Even otherwise, it cannot be presumed at any
stretch of imagination that, the accused forcibly kidnapped
the deceased in a motorbike and kept her for a period of
one month and she failed to lodge any complaint either to
the police or to inform any other persons including her
parents. Hence, it can easily be concluded that the stay of
the accused and the victim was consensual.
12. Nevertheless, the victim herself stated in her
164 statement that, there was no forcible sexual act
committed by the accused and when the medical evidence
supports her say, in such circumstance, the learned
Sessions Judge has rightly acquitted the accused for the
offenc punishable under Section 376 (2)(i) and Sections 4
and 5 of POCSO Act. However, the learned Sessions Judge
convicted the accused for the offence under Section 363 of
IPC, for the reason that the victim was minor as on the
date of the incident and though the accused taken the
victim-girl with her consent, then also the same cannot be
termed as a legal consent in terms of Section 361 of IPC,
- 16 -
NC: 2024:KHC-D:741-DB
which is punishable under Section 363 of Indian Penal
Code. In our considered view the said finding of the
Sessions Judge does not call for any interference. Further,
the learned Sessions Judge, has rightly allowed the
application filed under the provisions of Sections 3 and 4
of Probation of Offenders Act, 1957 by considering the
report filed by the Probationary Officer that the accused is
having good character and is residing at Hubli city with his
wife Manjula and child Amruta by doing coolie work.
Accordingly, learned Sessions Judge exercised power
under Sections 3 and 4 of P.O. Act, 1957 and released the
accused on probation of good conduct by executing a bond
for Rs.1,00,000/- and also sureties for the like sum for a
period of three years.
13. On careful perusal of the reasons assigned by
the learned Sessions Judge, we are of the considered view
that, the learned Sessions Judge has rightly exercised the
powers conferred under Sections 3 and 4 of P.O.Act and
released the accused on probation based on the report of
- 17 -
NC: 2024:KHC-D:741-DB
Probationary Officer. In such circumstance, the Judgment
does not call for any interference. Accordingly, we answer
the point raised above in the negative and proceed to pass
the following:
ORDER
The appeal filed by the State is devoid of merits and
accordingly the same is dismissed.
We direct the legal service authorities to pay a sum
of Rs.10,000/- to the learned counsel Sri. Vitthal S. Teli,
as he was appointed as Amicus Curie.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
