Karnataka High Court

Srinivasa vs The State Of Karnataka on 3 July, 2024

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                                                    CRL.A No. 690 of 2017




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 3RD DAY OF JULY, 2024

                                        PRESENT
             THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                             AND
                         THE HON'BLE MS JUSTICE J.M.KHAZI


                         CRIMINAL APPEAL NO. 690 OF 2017
            BETWEEN:

            Srinivasa
            S/o. Seetharamappa,
            Aged about 35 years
            R/at Doddahalli Village
            Chikkaballapur Taluk & District
            PIN- 561 207.
                                                               ...Appellant
            (By Sri. K.B.K.Swamy, Advocate)

            AND:
Digitally
signed by   1.    The State of Karnataka
SRIDEVI S
Location:         Represented By
HIGH
COURT OF          Deputy Superintendent of Police
KARNATAKA
                  Chikkaballapur Sub-Division,
                  Chikkaballapur
                  (Gudibande PS)
                  PIN- 561 207

                  Represented by
                  State Public Prosecutor,
                  High Court Building,
                  Bengaluru
                  Pin - 560 001.
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                                         CRL.A No. 690 of 2017




2.   Rama D.N.
     Aged about 26 years,
     D/o. Narasimhappa,
     Doddahalli Village,
     Chikkaballapura Taluk and District,
     Bengaluru Rural District.
     (R2 impleaded vide order dated 02.01.2024)
                                                  ...Respondents
(By Sri. Vijaykumar Majage, SPP-II for R-1;
    Sri. M.Chennakrishnappa, Advocate for R-2)

      This Criminal Appeal is filed under section 374(2) of
Criminal Procedure Code, 1973 praying to set aside         the
judgment and order of conviction dated 18.03.2017 passed by
the I Additional District and Sessions Judge, Chikkaballapur in
Spl. S.C.No.40/2014 - convicting the appellant/accused for the
offence punishable under sections 376, 506 of IPC and under
sections 3(1)(xii) and 3(2)(v) of SC/ST (POA) Act, 1989 and
under section 4 of POCSO Act, 2012.

     This Criminal Appeal coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:

                        JUDGMENT

This appeal is against judgment dated

18.03.2017 passed by the I Additional District and

Sessions Judge, Chikkaballapura ('trial court' for

short) in Spl. Case No.40/2014 convicting the

accused for the offences punishable under sections

376 and 506 of IPC, section 4 of the Protection of

Children from Sexual Offences Act ('POCSO Act' for

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short) and sections 3(1)(xii) and 3(2)(v) of

Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act ('Atrocities Act' for

short). Having recorded the conviction for the

aforesaid offences, the trial court imposed

sentence of life imprisonment and fine of

Rs.50,000/- on the accused for the offence under

section 3(2)(v) of the Atrocities Act and rigorous

imprisonment for 6 months and fine of Rs.5,000/-

for the offence punishable under section 506 of

IPC, without imposing sentence for the offence

under section 376 of IPC and sections 4 and

3(1)(xii) of the POCSO Act invoking section 42 of

the POCSO Act.

2. The incident that led to charge sheeting

the accused was revealed by PW1 to the police in

her complaint or report made as per Ex.P1 on

11.02.2014. PW1 was a student of II PUC at

Government Junior College, Mandikal, and she was

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coming to college by walk everyday from her

village Doddahalli. About a year prior to

11.02.2014, when she was returning home around

3.00 p.m, the accused stalled her on the way,

closed her mouth with his towel and dragged her

to a nearby mango grove where he subjected her

to forcible sexual intercourse. He threatened of

killing her and her family members in case she

would disclose the said incident to anybody else.

After the first incident, the accused had

intercourse with her several times forcibly posing a

threat of killing her and disclosing everything in

the village. She conceived as a result of this

intercourse and when she was a pregnant of 7

months, her father took her to hospital and at that

time she disclosed the incident to her parents. As

she belonged to scheduled caste, FIR was

registered for the offence under section 3(2)(v) of

Atrocities Act in addition to offences under

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sections 376 and 506 of IPC and section 4 of the

POCSO Act.

3. During trial, the prosecution examined 20

witnesses and got marked 27 documents as per

Exs.P1 to P27 and 3 material objects as per MOs1

to MO3. Exs.D1 to D5 are the documents marked

on behalf of the accused.

4. Appreciating the evidence the trial court

found that the age of PW1 on the date of incident

i.e., in the month of June or July of 2013, was

below 18 years. Ex.P6 is the admission register

extract of PW1 issued by Government Pre

University College, Mandikal and to prove the

contents of Ex.P6, the prosecution examined the

then Principal of Government Junior College as

PW4. The conclusion of the trial court shows that

the date of birth of PW1 was 11.11.1996 as

entered in Ex.P6. In fact this is the point that

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learned counsel for the appellant/accused argued

vehemently.

4.1. As regards the incident, the trial court is

of the opinion that the evidence given by PW1 is

fully believable. She gave birth to baby at Vani

Vilas Hospital, Bengaluru, which is evidenced by

Ex.P4. Then the blood samples of the baby, PW1

and the accused were collected for DNA matching.

The report is to the effect that PW1 and the

accused are the biological parents of the baby.

Placing reliance on the oral testimony of PW1 and

the DNA report, the trial court held the accused

guilty of the offences. As she belonged to

scheduled caste, conviction was recorded for the

offence under section 3(2)(v) of Atrocities Act.

5. Sri K.B.K.Swamy, learned counsel for the

appellant/accused highlighted three points while

arguing. Firstly the trial court should not have

convicted the accused for the offence under

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section 3(2)(v) of Atrocities Act inasmuch as

merely because the girl belonged to scheduled

caste, no conviction under the provisions of

Atrocities Act can be recorded unless a clear

intention to sexually abuse a member of scheduled

caste only on the ground of caste factor was

proved by the prosecution. Here there is no

evidence to this effect at all.

5.1. Secondly the trial court should not have

recorded conviction for the offence under section 4

of the POCSO Act without a clear evidence

regarding her age. Ex.P6 the admission register

extract and the oral testimony of PW4 should not

have been acted upon because PW1 has clearly

admitted that she studied SSLC class two times.

This shows that by the time she reached II PUC

class, her age might be more than 18 years. The

girl should have been referred to ossification test

and radiological test to ascertain the age. In this

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view conviction under section 4 of the POCSO Act

cannot be sustained.

5.2. Thirdly, it becomes evident from her

answers in the cross examination that she was a

consenting party. She never resisted nor revealed

the incident to anybody in the village till her

pregnancy was detected. From her conduct itself,

her consent for sexual intercourse with the

accused can be inferred and in this view conviction

under section 376 of IPC is also not possible.

Therefore he argued that the judgment of the trial

court requires to be interfered with and the

accused acquitted.

6. On the contrary, Sri Vijaykumar Majage,

learned SPP-II for the respondent/State argued

that PW1 has given reason for not disclosing the

first incident of sexual assault on her in her family.

Assuming that she was a consenting party, her

consent is immaterial because of her age. Ex.P6 is

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the document that the court can rely upon for

giving a finding about the age of the victim.

Except a suggestion in the cross examination that

11.11.1996 is not the correct date of birth, nothing

is there on record to disbelieve evidence of PW4 on

Ex.P6 and also the oral testimony of PW1 about

her age. There is acceptable proof with regard to

age. The incident was reported to police in the

year 2014 and the actual incident took place in the

year 2013 and at that time her age was nearly 16

years. She belongs to scheduled caste which is

not disputed. For all these reasons the judgment

of the trial court cannot be interfered with.

7. The argument of Sri K.B.K.Swamy shows

that the accused mainly disputes the proof

provided by the prosecution in regard to the age of

PW1. In order to invoke the penal provisions of

the POCSO Act, the prosecution has to necessarily

prove that the victim is a child in the sense that he

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or she is below the age of 18 years or otherwise no

offence under the POCSO Act is constituted. In

this case, PW1 has stated that she was born on

11.11.1996. The prosecution produced two

documents as per Exs.P5 and P6 in proof of the

age of PW1. Ex.P5 is a letter written by the

Principal of Government Composite Junior College,

Mandikal, to the Deputy Superintendent of Police,

Chikkaballapura, stating that the date of birth

mentioned in the school records is 11.11.1996.

Ex.P6 is the extract of admission register wherein

the same date of birth is recorded. If the cross-

examination of PW1 is seen, except putting a few

questions in regard to the age difference between

her and her elder sister, and the age of her

mother, she was not at least suggested that

11.11.1996 was not her date of birth. It is true

that at one stage in the cross-examination she

gave an answer that she studied SSLC for two

years, but when the Public Prosecutor re-examined

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her, she clarified that she did not understand the

question properly and therefore she gave an

answer that she studied the SSLC class for two

years. She further made it clear that she passed

SSLC in the first attempt itself. The evidence of

PW1 is further fortified by Exs.P5 and P6 about

which PW4, the principal of the college gave

evidence that he issued those two documents

verifying the school records. In fact the original

admission register was produced before the court

and it was compared with its photostat copy.

Ex.P6 is the original admission register and Ex.P7

is the photostat copy. That means the original

admission register was produced before the court.

This kind of proof produced by the prosecution

before the court suffices the requirement of law for

proving the age of the child victim. Sri K.B.K.

Swamy disputes the date of birth for the reason

that, PW17, the investigating officer answered in

the cross-examination that he had made a request

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to the doctor for issuing age certificate of PW1.

He admitted the suggestion that in Ex.P10, the

doctor opined that the age had to be determined

by a dentist/radiologist. But the investigating

officer did not obtain any such age determination

from the dentist or the radiologist. Now for the

reason that such a determination was not obtained

by the investigating officer, can it be stated that

Exs.P5 and P6 do not establish the age of the girl.

It is now a well established principle that the court

can follow the procedure prescribed in Juvenile

Justice (Care and Protection of Children) Act for

determination of the age of the child. To cite a

decision, the Supreme Court in the case of State

of Madhya Pradesh V. Anoop Singh [(2015) 7

SCC 773] has held below:

"13. In the present case, the central question is whether the prosecutrix was below 16 years of age at the time of the incident? The prosecution in support of their

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case adduced two certificates, which were the birth certificate and the Middle School Certificate. The date of birth of the prosecutrix has been shown as 29.08.1987 in the birth certificate (Ext.P5), while the date of birth is shown as 27.08.1987 in the Middle School Examination Certificate. There is a difference of just two days in the dates mentioned in the abovementioned exhibits. The trial court has rightly observed that the birth certificate, Ext.P5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the prosecutrix was shown as under- aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the prosecutrix.

14. This Court in Mahadeo V. State of Maharashtra has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in

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determining the age of the victim of rape. Rule 12(3) reads as under:

"Rule 12( 3): In every case conce rning a child or j uvenile in conflict with law, the age dete rmination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evide nce by obtaining -

(a)(i) the matriculation or equivale nt certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (othe r than a play school) first atte nded; and in the absence whe re of;

(iii) the birth certificate give n by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either

(i), ( ii) or (iii) of clause ( a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the j uvenile or child. I n case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if conside red necessary, give bene fit to the child or juvenile by conside ring his/he r age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),

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(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

15. This court ............................................. ....................................................same."

16. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place.

These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts.P.5 and P.6 cannot be discarded. Therefore, the trial court was correct in relying on the documents."

8. In view of the above judgment of the

Hon'ble Supreme Court, the documents Exs.P5 and

P6 indicating the date of birth of PW1 are to be

relied upon. It may be true that in Ex.P10 the

doctor has observed that the age has to be

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determined by the radiologist/dentist. Only for

this reason it cannot be stated that Ex.P6 in

particular cannot be considered as age proof. Only

in the absence of any document in proof of age,

the investigating officer may get the age of the

victim determined by a dentist or radiologist. In

this case if the investigating officer did not take

the girl for medical examination for the purpose of

age determination, it does not mean that Ex.P6

loses its evidentiary value. Therefore the date of

birth of the girl is proved to be 11.11.1996 and as

on the date of first incident of sexual assault on

her i.e., one year before registration of FIR, her

age was 16 years 3 months.

9. Consent of a minor girl for sexual

intercourse is immaterial as she is incapable of

giving consent. In this regard the Hon'ble

Supreme Court in the case of Anversinh alias

Kiransinh Fatesinh Zala V. State of Gujarat

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[(2021) 3 SCC 12] has held that minor is deemed

incapable of giving consent. Now if the cross

examination of PW1 is seen, it becomes apparent

that all the questions directed to her were to bring

to fore that she was a consenting party, not that

the accused did not have sexual intercourse with

her. It is true that the way in which she has given

answers indicate that she was a consenting party.

She did not disclose the incident till her pregnancy

was detected at the 7 t h month. But in view of her

age, her consent was immaterial. In these

circumstances we are of the opinion that the trial

court is justified in recording conviction against

the accused for the offence under POCSO Act.

10. However what is prominently noticeable

here is that the trial court's decision to convict the

accused for the offence under section 3(2)(v) of

Atrocities Act cannot be sustained inasmuch as the

evidence indicating that the accused had that kind

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of intention to subject a girl of scheduled caste on

the caste factor is not forthcoming. The

prosecution ought to have elicited from PW1 or her

mother examined as PW2 that the accused knew

that she belonged to scheduled caste. What is

found is a kind of gratification of sexual desire and

nothing more. Therefore the conviction for the

offence under section 3(2)(v) of Atrocities Act

cannot be sustained.

11. The trial court ought to have famed the

charge for the offence punishable under section 6

of the POCSO Act as PW1 became pregnant as a

consequence of sexual assault. The circumstance

takes into its ambit the definition of aggravated

penetrative sexual assault in terms of section

5(j)(ii) of the POCSO Act. Instead the charge was

framed for the offence under section 4 of the

Atrocities Act and conviction has been recorded for

the same offence. Now at the appellate stage it is

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not permitted to convict the accused for the

offence under section 6 of the Act as there was no

charge for it. The prosecution should have been

alert at the time of framing the charge. If at this

stage the charge is altered, it prejudices the

interest of the accused. Though the prosecution

invoked section 376 of IPC, it is to be stated that

since the age of the girl was 16 years 3 months,

section 376(2)(i) of IPC as it stood before the

amendment given into effect from 21.04.2018 or

376(3) given into effect by virtue of amendment

cannot be invoked. The accused has to be

convicted and punished only in accordance with the

sentencing scheme provided in section 4 of the

POCSO Act before the amendment was given into

effect from 16.08.2019.

12. Having regard to the traces of consent by

PW1, her evidence that she was threatened to be

killed is difficult to be believed and therefore

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conviction for section 506 of IPC cannot be

sustained.

13. In view of the above discussion, it

transpires that the accused is liable to be

convicted only for the offence under section 4 of

the POCSO Act. Since the incident was of the year

2013, accused is to be punished in accordance with

the law existing on that date. And section 4 of the

Act as it stood then contemplated minimum

imprisonment period of 7 years extendable up to

imprisonment for life and fine. Since the accused

being married man exploited PW1 for his sexual

desire, and in the facts and circumstances

indicating the consent by PW1 it can be stated that

if the accused is subjected to rigorous

imprisonment for 10 years and fine, it meets the

ends of justice. Now the following:

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                           ORDER




     (i)    Appeal is partly allowed.


     (ii)   The   appellant/accused     is   acquitted   of   the

offences punishable under section 506 I.PC and section 3

(2) (v) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 and the sentence

imposed by the trial court for these two offences are

hereby set aside. However, we confirm the conviction

order passed by the trial court for the offence punishable

under section 4 of POCSO Act and sentenced to undergo

rigorous imprisonment for a period of 10 years and fine of

Rs.50,000/-. In default of payment of fine, he shall

undergo further imprisonment for one year. Out of the fine

amount of Rs.50,000/-, Rs.25,000/- shall be paid to PW-1