Karnataka High Court
Saibanna vs The State Through on 3 July, 2024
-1-
NC: 2024:KHC-K:4535-DB
CRL.A No.200050 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200050 OF 2019
BETWEEN:
SAIBANNA
S/O REVANSIDDAPPA AARI,
AGE: 26 YEARS,
OCC: COOLIE,
R/O: RATKAL, TQ:CHINCHOLI,
DIST: KALABURAGI - 585 101.
...APPELLANT
(BY SRI BABURAO MANGANE, ADVOCATE)
AND:
Digitally signed by
BASALINGAPPA
SHIVARAJ THE STATE THROUGH
DHUTTARGAON
RATKAL POLICE STATION,
Location: HIGH
COURT OF TQ: CHINCHOLI, DIST: KALABURAGI.
KARNATAKA REP. BY ADDL. S.P.P.,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585 107.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C, PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER PASSED BY THE
-2-
NC: 2024:KHC-K:4535-DB
CRL.A No.200050 of 2019
HON'BLE II ADDITIONAL SESSIONS JUDGE AT KALABURAGI IN
SPL. CASE (POCSO) NO.7/2016 DATED 17.06.2017 AND
20.06.2019 AND ACQUIT THE ACCUSED / APPELLANT FROM
THE CHARGES PUNISHABLE UNDER SECTION 376(2) 9I) OF
I.P.C., AND SECTION 6 OF POCSO ACT, 2012, IN THE
INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, RAJESH RAI K. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the convicted-accused directed
against the judgment and order of sentence dated
17.06.2017 passed by the II Additional District and
Sessions Judge, Kalaburagi in Special Case
(POCSO)No.7/2016, wherein the appellant/accused is
convicted for the offence punishable under Section
376(2)(i) of Indian Penal Code, so also Section 6 of
Protection of Children from Sexual Offences Act, 2012
('POCSO Act', for short) and sentenced the accused to
undergo rigorous imprisonment for life and to pay fine of
Rs.50,000/- for the offence punishable under Section
NC: 2024:KHC-K:4535-DB
376(2)(i) of IPC and in default of payment of fine amount,
he shall undergo simple imprisonment for six months.
2. The factual matrix of the prosecution case is
that:
On 24.11.2015 at about 2.00 p.m., PW.1 i.e., mother
of the victim was taking lunch in her house, at that time,
the accused i.e., brother of her co-sister came and picked
up her daughter/victim, who was aged about 3 years on
the guise that he would get her chocolates. As earlier
also, he used to take her children and get them
chocolates, PW.1 kept quiet. After some time, PW.2 i.e,
cousin sister of the victim rushed to PW.1 and informed
that the victim is crying loudly coming out from the house
of accused. When PW.1 rushed to the spot, she saw her
daughter/victim was keeping her legs apart. On enquiry,
victim revealed that, the accused laid her on ground in his
house and committed forcible sexual intercourse on her.
Thereafter, PW.1 also noticed bleeding from her private
part. Though PW.1 went to the house of the accused to
NC: 2024:KHC-K:4535-DB
enquire about the same, he was already fled away from
the spot. Thereafter, PW.1 called the neighbours i.e.,
PWs.4, 5 and CW.9 and shifted the victim to the hospital
for treatment. Subsequently, PW.1 lodged the complaint
before the respondent-police against the accused as per
Ex.P1.
3. On receipt of the complaint of PW.1 i.e, Ex.P1,
PW.12 - PSI of respondent-police registered the case in
crime No.125/2015 dated 24.11.2015 against the accused
for the offence punishable under Section 376 of IPC and
under Section 6 of POCSO Act, as per Ex.P.11. Later,
PW.12-PSI took up further investigation and arrested the
accused on 25.11.2015 and produced him before the
Special Court. During the course of investigation, PW.13
drawn the spot mahazar and sent the victim for medical
examination and after obtaining necessary documents
from the concerned authorities laid the charge sheet
against the accused for the offence punishable under
NC: 2024:KHC-K:4535-DB
Section 376(2)(i), 406 read with Sections 6 and 8 of
POCSO Act.
4. Based on the said charge sheet, the Special
Judge took cognizance of the offence and framed the
charges against the accused for the offence punishable
under Section 376(2)(i) of IPC and under Section 6 of
POCSO Act. However, the accused denied the charges and
claims to be tried.
5. In order to prove the charges leveled against
the accused, the prosecution in total examined 14
witnesses as PWs.1 to 14 before the trial Court, so also
got marked 14 documents as Exs.P1 to 14 and got
identified 3 Material Objects marked as MOs.1 to 3. After
closure of the prosecution evidence, learned Sessions
Judge read over incriminating portion of evidence of the
material witnesses to the accused as contemplated under
the provision of Section 313 of Cr.P.C., however, the
accused denied the same. The defence of the accused is of
total denial and that of false implication. The accused
NC: 2024:KHC-K:4535-DB
neither examined any witnesses nor got marked any
documents.
6. After assessment of oral and documentary
evidence, the learned Sessions Judge convicted the
accused for the offence punishable under Section 376
(2)(i) of IPC and also Section 6 of POCSO Act. Further, the
Sessions Judge, sentenced the accused for the offence
punishable under Section 376(2)(i) of IPC as stated supra.
The said judgment is under challenge in this appeal.
7. We have heard the learned counsel for the
appellant so also learned Additional State Public
Prosecutor for the respondent-State.
8. It is the primary contention of the learned
counsel for the appellant that the judgment under this
appeal suffers from illegality and perversity and the
learned Sessions Judge convicted the accused totally
based on surmises and conjectures without appreciating
the evidence on record in right perspective which caused
great miscarriage of justice to the accused. He would also
NC: 2024:KHC-K:4535-DB
contend that though the victim girl examined before the
Court she is unable to depose about the actual incident.
The other evidence the prosecution relied is PWs.1 and 2
i.e., mother of the victim so also cousin sister of the
victim, on perusal of their evidence there are material
contractions and omissions in their testimony, which goes
to the root of the prosecution case. Further, the medical
evidence also goes against the prosecution case.
Accordingly, he prays to allow the appeal by setting aside
the impugned judgment.
9. Alternatively, learned counsel for the appellant
submits that the sentence imposed by the learned
Sessions Judge be modified to a lesser extent by
considering the un-amended Section 6 of POCSO Act so
also under the provisions of Section 376 (2)(i) of IPC. With
these submissions, he prays to allow the appeal.
10. Per contra, learned Additional State Public
Prosecutor would contend that the learned Sessions Judge
after meticulously examining the evidence of material
NC: 2024:KHC-K:4535-DB
witness passed the well reasoned judgment which does
not call for interference by this Court. He would further
contend that perusal of the evidence of PW.1 i.e., mother
of the victim and PW.2 i.e, sister of the victim who is an
eye witness to the incident, so also the evidence of PW.3,
and the neighbours who have shifted the victim to the
hospital immediately after the incident, learned Sessions
Judge rightly convicted the accused for having committed
the brutal act on PW.3 who was infant at the time of
incident. In such circumstance, the learned Sessions Judge
rightly awarded maximum punishment to the accused
which does not call for interference. Such being the
position, the accused does not deserve any mercy at the
hands of this Court. Accordingly, he prays to dismiss the
appeal.
11. Having heard the learned counsel for the
respective parties, so also having perused the evidence
and documents placed before us, the points that would
arise for our consideration are:
NC: 2024:KHC-K:4535-DB
i. Whether the judgment under this appeal
suffers from any perversity or any
illegality?
ii. Whether the learned Sessions Judge is
justified in convicting the accused for the
offence punishable under Section 376 (2)(i)
of IPC by imposing sentence of life
imprisonment?
12. This Court being the Appellate Court, carefully
re-appreciated the evidence available on record as under:
13. PW.1 - Laxmi, is the mother of the victim in
this case. She lodged the complaint before the police
against the accused immediately after the incident as per
Ex.P1. Before the Court she reiterated the contents of her
complaint and deposed that on the date of incident,
accused took her daughter by inducing that he would get
chocolate for her and thereafter, committed sexual
intercourse in his house. After sometime, PW.2 co-sister's
daughter informed her that accused committed sexual
- 10 -
NC: 2024:KHC-K:4535-DB
assault on the victim. As such, she rushed to the house of
the accused and saw her daughter was bleeding. On
enquiry, victim informed that accused committed forcible
sexual act on her. Thereafter, herself, her husband and
the neighbours shifted the injured victim to the hospital for
treatment and subsequently, lodged the complaint before
the respondent police as per Ex.P1. She also identified the
material objects MOs.1 and 2 i.e,. clothes worn by the
victim at the time of incident.
14. PW.2 is the eyewitness and cousin of the victim.
According to her on the date of incident, accused took her
sister to his house and after some time, when she heard
the screaming sound of her sister, she went inside the
house of the accused wherein she saw accused was sitting
on her sister. As such, she cried for help and thereafter,
her mother and neighbours took her sister to the hospital
for treatment. She also deposed about her statement
under Section 164 of Cr.P.C., recorded before the
Magistrate.
- 11 -
NC: 2024:KHC-K:4535-DB
15. PW.3 is the victim deposed that accused took
her to his house on the pretext of getting chocolate and
thereby committed sexual assault on her. She also stated
that due to the act of accused she sustained bleeding
injury in her private part and she informed the same to
her mother-PW.1 and thereafter, her mother took her to
the hospital.
16. PW.4-Indramma is the neighbour of PW.1
deposed that on the date of incident, PW.1 informed her
that accused had committed sexual assault on her.
However, she also stated that she saw the victim and
blood was oozing from the private part of the victim.
Thereafter, PW.1 and her husband shifted the victim to the
hospital.
17. PW.5- Channappa the father of victim has also
deposed in similar line as that of PW.1 and PW.4.
18. PW.6-Bharati is the witness for spot mahazar
Ex.P2. She identified the photograph of the alleged spot as
per Exs.P3 and P4.
- 12 -
NC: 2024:KHC-K:4535-DB
19. PW.7-Santosh is the witness for the seizure
mahazar i.e., Ex.P5 i.e,. clothes of the victim which were
worn by her at the time of incident.
20. PW.8- Dilip is the Assistant Engineer drawn spot
sketch as per Ex.P6.
21. PW.9-Dr.Devindra is the Medical Officer who
examined accused and issued certificate as per Ex.P7 and
Ex.P8 stating that accused was capable of performing
sexual act.
22. PW.10-Ambika is the Head Master of the
Government High School, Ratkal, who issued the birth
certificate of accused as per Ex.P9.
23. PW.11-Dr.Kaveri is the Medical Officer who
treated the victim and issued medical certificate as per
Ex.P10.
24. PW.12-Surekha is the then PSI who registered
the FIR as per Ex.P11 based on the complaint lodged by
PW.1 as per Ex.P1.
- 13 -
NC: 2024:KHC-K:4535-DB
25. PW.13-R.Panchaksharayya is the CPI-
Investigating Officer who investigated the case and after
completing investigation laid charge sheet before the
Special Court against the accused.
26. PW.14-Dr.Chaya Kumar is the Deputy Director
of RFSL after examining the material objects sent by the
police issued the FSL report as per Ex.P13.
27. On careful perusal of above evidence, in order
to prove the charges leveled against the accused, the
prosecution primarily relied on the evidence of PW.3 the
victim, PW.1 mother and PW.2 i.e,. sister of the victim in
this case. On perusal of evidence of these three
witnesses, PW.3 being victim aged about 3 to 4 years
deposed before the Court that on the date of incident,
accused took her to his house in the guise of getting
chocolate to her and committed sexual intercourse on her.
Due to the same, she sustained bleeding injuries and she
informed the same to her mother PW.1 and PW.2 sister.
The said evidence of PW.3 victim clearly corroborates with
- 14 -
NC: 2024:KHC-K:4535-DB
the evidence of PWs.2 and 1. PW.2 is the cousin sister of
PW.3 also a minor girl deposed before the Court that on
the date of incident, she witnessed the accused taking her
sister to his house and after some time, she heard the
screaming of her sister and she went to the house of
accused and saw the accused committing rape on victim.
By seeing her, accused ran away from the spot.
Thereafter, she informed the same to PW.1 and in turn,
PW.1 shifted the injured victim to the hospital for
treatment. PW.1 also stated similarly by reiterating her
averments in the complaint. She also stated that
immediately after the incident, she along with neighbours
shifted victim initially at the hospital at Ratkal thereafter,
for higher treatment to the District Government Hospital,
at Kalaburagi. On meticulous examination of these three
witnesses, their evidence clearly corroborates with the
medical evidence deposed by doctor PW.11. According to
PW.11, on the date of incident, i.e,. on 24.11.2015 at
about 4.58 p.m., victim was brought to the hospital
- 15 -
NC: 2024:KHC-K:4535-DB
accompanied by PW.1 her mother and on examination of
PW.3 victim, she found the following injuries:
1. Fresh active profuse bleeding from the
vagina.
2. There was a complete fresh hymenal tear
present.
3. Abrasion of the clitoris and the labia
majora.
4. First degree perineal tear.
5. Mild abrasion in the perineal region.
6. Prolapse of anal mucosa seen which was
red in colour.
7. No loose hair or any traces of semen in the
vulval region.
8. Palpation: There was a tear of around 1 cm
in the right lateral vaginal wall and 0.5 cm
tear in the posterior vaginal wall with
profuse bleeding.
28. PW.11 also deposed that the dentist assessed
the age of the victim around 3 to 4 years. accordingly, she
issued the medical certificate as per Ex.P10. She also gave
her opinion that there are "recent signs of sexual
intercourse with tear of perineal and vaginal parts". Hence,
on conjoint reading of evidence of PWs.1 to 3 with the
- 16 -
NC: 2024:KHC-K:4535-DB
evidence of PW.11 and Ex.P10 report issued by PW.11, the
prosecution has proved that the victim PW.3 was
subjected to sexual assault at the hands of accused.
29. Nevertheless, PWs.4 and 5 neighbours have
also supported the case of the prosecution and they
categorically deposed that soon after the incident, PW.1
informed them about the act committed by the accused
and they also noticed bleeding from the private part of the
victim-PW.3 and thereafter, they all shifted the victim to
the hospital. Hence, the evidence of PWs.1 to 3 also
corroborates with the evidence of PWs.4 and 5
neighbours. In addition to the evidence of doctor, the
prosecution also examined PW.14, RFSL Officer and on
careful perusal of Ex.P13, the same depicts that seminal
stain was detected in item No.9 i.e,. inner garment of the
accused. Hence, the medical evidence also corroborates
with the scientific examination of the material objects
seized on Item Nos.2, 3, 7, 8 and 9 belonging to the
accused so also victim.
- 17 -
NC: 2024:KHC-K:4535-DB
30. Additionally, the prosecution also proved the
spot mahazar drawn at the house of accused where the
alleged act committed by him. The evidence of PW.6
corroborates to Ex.P2. insofar as age of the victim is
concerned, PWs.1 to 3 and doctor PW.11, deposed that
the victim was aged about 3 to 4 years at the time of
incident. Ex.P10 also clearly discloses the said report was
issued after conducting examination of the victim by the
radiologist. In such circumstances, though the prosecution
failed to produce any such certificate to prove the age of
the victim or by not examining any witness to that effect,
nevertheless, the age of the victim was not even seriously
disputed by the defence during the course of trial.
31. Hence, on careful perusal of the entire evidence
on record, we are of the view that the offence under
Section 6 of POCSO Act so also under Section 376 (2)(i) of
IPC is proved against accused by the prosecution beyond
all reasonable doubt, as such, the learned Sessions Judge
rightly convicted the accused for the charges levelled
- 18 -
NC: 2024:KHC-K:4535-DB
against him and sentenced him for the offence punishable
under Section 376(2)(i) of IPC, which does not call for
interference by this Court.
32. Insofar as alternative contention of the learned
counsel for the appellant that the learned Sessions Judge
imposed maximum punishment of life imprisonment to the
accused for the offence punishable under Section 376
(2)(i) of IPC, though minimum sentence prescribed in the
Section is 10 years imprisonment is concerned, we made a
query with learned Additional State Public Prosecutor
about the conduct of the accused and the antecedents of
the accused. Learned Additional State Public Prosecutor
submitted that there are no such antecedents of the
accused, except this case. The accused was 24 years at
the time of incident. Further he has already suffered
imprisonment of 8 years 7 months. It is submitted by the
learned counsel for the appellant that he is the only bread
earner of the family and he is having age old mother.
Except him, nobody else to take care of his mother and in
- 19 -
NC: 2024:KHC-K:4535-DB
such circumstance, lenience may be extended to him
imposing minimum sentence of 10 years instead of life
imprisonment.
33. Having considered the facts and circumstances
of the case so also considering the age of the accused and
since he has already undergone sentence of 8 years 7
months, we are of the view that the sentence imposed by
the learned Sessions Judge may be modified to 10 years of
imprisonment without giving any remission instead of life
imprisonment by imposing reasonable fine amount.
Accordingly, we are of the opinion that the impugned
judgment deserves to be modified to the extent of
imposing sentence.
34. Accordingly, we answer point No.1 raised above
in the negative and point No.2 partly in the affirmative and
proceed to pass the following:
ORDER
i. The appeal filed by the accused is allowed
in part.
- 20 -
NC: 2024:KHC-K:4535-DB
ii. The judgment of conviction passed by the
learned Sessions Judge in Special case
(POCSO) No.7/2016 dated 17.06.2017 is
confirmed however, the sentence imposed
by the learned sessions judge for the
offence punishable under Section 376(2)(i)
is modified from life imprisonment to a
period of 10 years without giving any
remission.
iii. Accused shall also be liable to pay fine of
Rs.5,00,000/-(Rupees Five Lakhs only). In
default of payment of fine, he shall undergo
rigorous imprisonment for a period of 02
years.
iv. The fine amount if deposited by the
accused, the entire amount shall be kept in
the Fixed Deposit in any Nationalised Bank
and the same shall be paid to the victim on
she attaining the age of majority on proper
identification as per the provision of Section
357 of Cr.P.C.
v. If the fine amount is deposited by the
accused, the learned Sessions Judge is
requested to intimate PW.1-mother of the
victim by passing appropriate order.
- 21 -
NC: 2024:KHC-K:4535-DB
vi. Fine amount, if any, deposited by the
accused shall be included in the fine
amount imposed by this Court.
vii. Registry is directed to send the copy of this
judgment along with Trial Court records to
the concerned Trial Court.
Sd/-
JUDGE
Sd/-
JUDGE
SKS/VNR
CT:VK
