Karnataka High Court
State Of Karnataka vs Ningaraju on 5 July, 2024
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CRL.A No.1321/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.1321/2018 (A)
BETWEEN:
STATE OF KARNATAKA BY
TALAKADU POLICE STATION
MYSURU
Digitally signed REP. BY STATE PUBLIC PROSECUTOR
by PRABHU
KUMARA NAIKA O/O HIGH COURT BUILDING
Location: High BENGALURU-560001.
Court of
Karnataka
...APPELLANT
(BY SRI. RAJATH SUBRAMANYA, HCGP)
AND:
1. NINGARAJU
S/O LATE GURUSWAMY
AGED ABOUT 25 YEARS
R/O KALIYURU VILLAGE
T. NARASIPURA TALUK
MYSURU DISTRICT-571 124.
2. SUNIL DEVAPPA LEMANI
S/O DEVAPPA LAMANI
AGED ABOUT 34 YEARS
VATAVARAVI VILLAGE
R/O YALBURGA TALUK
KOPPALA DISTRICT.
...RESPONDENTS
(BY SRI. C.N. RAJU, ADV., FOR R1
SRI. SHARATH J.M. ADV., FOR R2)
THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C.
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER 09.04.2018 IN S.C.NO.206/2015 ON THE FILE OF THE
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CRL.A No.1321/2018
VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S
366, 376 2(i)(n) OF IPC AND SEC.5(l) R/W 6 OF POCSO ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
"Whether the impugned judgment and order of acquittal
in S.C.No.206/2015 passed by the VI Additional District and
Special Judge, Mysuru suffers patent illegality or perversity?" is
the question involved in this case.
2. Respondent was tried in S.C.No.206/2015 before
the trial Court for the charges for the offences punishable under
Sections 366, 376(2)(i) & (n) of IPC and Section 5(l) r/w
Section 6 of the Protection of Children from Sexual Offences
Act, 2012 ('the POCSO Act' for short) on the basis of the charge
sheet filed by Talakadu police in Crime No.26/2015 of their
police station.
3. Respondent was accused in S.C.No.206/2015. For
the purpose of convenience, the parties are referred to
henceforth according to their ranks before the trial Court.
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4. PWs-2 and 3 are the elder brother and sister of
victim/PW-1 respectively. PW-3 and her family along with PW-1
had migrated from Vataparavi Village of Koppal District to
Kaliyur Village in T.Narasipura Taluk, Mysuru District as
labourers for harvesting sugarcane. They were living in the
shed situated in vacant site belonging to the mother of PW-5.
They were provided accommodation by their employer along
with the other workers.
5. The case of the prosecution in brief is as follows:
(i) The date of birth of PW-1 is 31.05.1999. On
07.02.2015, the accused luring her of love and marriage,
kidnapped her from the custody of PW-2 and her lawful
guardians. He took her to the house of PW-13 situated in
Gundegal Village of Kollegala Taluk. He lodged her in the house
of PW-13 for three days. During such stay he committed
aggravated sexual assault on her for three days. Then he
brought her back to his house in Kaliyur Village and was living
with her.
(ii) Regarding the incident PW-2 filed complaint against
accused No.1 before Talakadu police, based on which Ex.P15
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FIR was registered. The victim was subjected to medical
examination initially by PW-4 at T.Narasipura. Thereafter, she
was subjected to medical examination by PW-9 at Cheluvamba
Hospital, Mysuru. PW1/the victim's statement under Section
164 of Cr.P.C., as per Ex.P20 was recorded by the Judicial
Magistrate. On completing investigation the respondent was
charge sheeted.
6. The trial Court on hearing the parties framed the
charges against the accused/respondent for the offences
punishable under Section 366, 376(2)(i) & (n) of IPC and
Sections 5(l) and 6 of the POCSO Act.
7. As the respondent denied charges, the trial was
conducted. In support of the case of the prosecution PWs-1 to
PW14 were examined and Exs.P1 to P20 were marked. After his
examination under Section 313 of Cr.P.C., the accused did not
lead any defence evidence.
8. The trial Court on hearing the parties by the
impugned judgment and order acquitted the accused holding
that the victim being the child was not proved. The trial further
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held that the forced sexual intercourse was also not proved.
Challenging the said order the State has preferred the above
appeal.
9. The evidence on record including the evidence of
the victim PW-1 shows that she fell in love with the accused
and her family members had fixed her marriage with another
boy at her native place. She herself further states that she was
interested in the accused and she forced him to take her away
to avoid her marriage with some other person which was fixed
by her elders. Therefore, they went to the house of PW-13 and
stayed there. Her evidence further shows that her sexual
co-habitation with the accused in the house of PW-13 was at
her instance. Under the circumstances, unless the prosecution
proves that the victim was the child within the meaning of
Section 2(1)(d) of POCSO Act, the alleged sexual co-habitation
between the accused and PW-1 does not amount to the offence
of rape or aggravated sexual assault as the same was
consensual one. Therefore, prosecution was required to prove
crucial fact namely the age of the victim. Unless the fact of
victim being minor is not proved, the charge under Section 366
also does not sustain.
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10. Hon'ble Supreme Court in the judgment in
Mahadeo v. State of Maharashtra and Another1 has held
that the yardstick applicable for the assessment of the age of
juvenile in conflict with law under Rule 12(3) of Juvenile Justice
(Care and Protection of Children) Rules, 2007 (hereinafter
referred to as JJ Rules) is applicable to the juvenile victim also.
In this case the incident took place in February of 2015.
Therefore, the parties were governed by the JJ Rules, 2007.
Hon'ble Supreme Court in para 12 of the above said judgment
referring to said Rule 12(3) held as follows:
"12. We can also in this connection make reference to a
statutory provision contained in the Juvenile Justice
(Care and Protection of Children) Rules, 2007, where
under Rule 12, the procedure to be followed in
determining the age of a juvenile has been set out. We
can usefully refer to the said provision in this context,
inasmuch as under Rule 12(3) of the said Rules, it is
stated that:
"12. (3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may
be, by the Committee by seeking evidence by
obtaining--
(2013) 14 SCC 637
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(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a Panchayat;"
Under Rule 12(3)(b), it is specifically provided that only
in the absence of alternative methods described
under Rules 12(3)(a)(i) to (iii), the medical
opinion can be sought for. In the light of such a
statutory rule prevailing for ascertainment of the age of
a juvenile, in our considered opinion, the same
yardstick can be rightly followed by the courts for
the purpose of ascertaining the age of a victim as
well."
(Emphasis supplied)
11. The reading of the above judgment goes to show
that, to prove the age of the juvenile victim, the prosecution
has to first produce matriculation or equivalent Certificate if
available. Only in the absence of that date of birth certificate
from the school first attended has to be produced. In the
absence of the above two, the birth certificate given by the
Corporation or Municipal authority or Panchayath has to be
produced. Only in the absence of the first three, ossification
test has to be resorted.
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12. In the present case, PW-1 has stated that she was a
school dropout after 9th standard. Therefore, matriculation
certificate would not have been available. Therefore, date of
birth certificate which has to be relied is the one produced by
the first attended school. To prove her date of birth the
prosecution relied on Ex.P2 the school certificate allegedly
issued by PW-10. PW-10 states that on the requisition of the
I.O. he has issued Ex.P2 the school certificate and as per the
said record PW-1 was born on 31.05.1999. He does not say
when PW-1 was admitted into their school and for which class.
Ex.P2 only states that the admission number of the victim is
2006-07/07 and she belongs to lambani caste, her date of birth
is 31.05.1999 and she passed 7th standard. Ex.P2 does not
state on what basis the date of birth 31.05.1999 was entered.
13. PW-10 in his cross-examination states that they
have entered the said date of birth based on information given
in the application for admission submitted by her parents. He
also admits that at the time of admission her parents did not
produce the birth certificate. But her parents were not
examined to say that they had made an application containing
such date of birth. It was not even elicited to PW-1 that the
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school mentioned in Ex.P2 was her first attended school.
According to the prosecution itself they were all migrant
labourers. The original admission register was not produced.
Her date of birth certificate was also not produced and she was
not subjected to ossification test.
14. The other factor which creates doubt about PW-1
being minor is that her parents had fixed her marriage with
another person. It is not the case of the complainant or any
other witnesses that they attempted to perform marriage of
PW-1 though she was minor. Therefore, the trial Court was
justified in holding that PW-1 being aged below 18 years was
not proved beyond reasonable doubt.
15. Once if it is held that the fact of PW-1 being minor
was not proved, then the sexual act, if any, by the accused
with PW-1 must be proved to be forced one. But PW-1 in
Ex.P20 her statement before the Magistrate, as well as in her
evidence before the Court categorically stated that she was in
love with the accused, as her parents fixed her marriage with
some other person against her wish, she herself forced the
accused to take her away and accordingly they eloped and
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co-habited together in the house of PW-13. PW-3 the sister of
PW-1 admits in her cross-examination that they were
attempting to perform the marriage of PW-1 with the son of her
maternal uncle. Therefore, it was clear that the sexual
co-habitation, if any, was not forced one or against the will of
PW-1.
16. It is settled position of law that in the appeal
against judgment of acquittal the scope of interference is
limited. The Hon'ble Supreme Court in Prem Singh v. State of
Haryana2 has held that in an appeal against acquittal, the
accused has the benefit of double presumption. The first one
being the presumption of innocence at the trial stage, secondly
that gets reaffirmed and strengthened by the judgment of
acquittal. It was further held that merely because two views are
possible, the appellate Court cannot reverse the judgment of
acquittal and in such case the view which is favourable to the
accused has to be considered. It was held that unless the
judgment of acquittal suffers patent illegality or perversity, the
same cannot be reversed.
(2013) 14 SCC 88
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17. In light of the evidence discussed above, this Court
does not find any patent illegality or perversity in the impugned
judgment and order so as to warrant interference of this Court.
Hence, the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
ABK
