Karnataka High Court

Parashuram @ Pintu S/O Ashok Talwar vs The State Of Karnataka And Anr on 26 July, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                     NC: 2024:KHC-K:5405
                                                CRL.A No. 200014 of 2023




                      IN THE HIGH COURT OF KARNATAKA,
                             KALABURAGI BENCH

                    DATED THIS THE 26TH DAY OF JULY, 2024

                                      BEFORE

                 THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                   CRIMINAL APPEAL NO.200014 OF 2023 (374)

            BETWEEN:

                 PARASHURAM @ PINTU
                 S/O ASHOK TALWAR
                 AGE. 23 YEARS,
                 OCC. DRIVING AND COOLI,
                 R/O. KAGGOD,
                 TQ. AND DIST. VIJAYAPURA-586127.
                                                            ...APPELLANT
            (BY SRI R. S. LAGALI, ADV.)
            AND:

            1.   THE STATE OF KARNATAKA
                 THROUGH THE SHO.,
Digitally        INDI RURAL PS.,
signed by        REP. BY THE ADDL. STATE PUBLIC
SHILPA R
TENIHALLI        PROSECUTOR, HIGH COURT OF
Location:
HIGH             KARNATAKA, KALABURAGI BENCH-585102.
COURT OF
KARNATAKA
            2.   VICTIM GIRL
                 REP. BY HER FATHER/ COMPLAINANT (PW-2),
                 SANGANNA @ SANGAPPA
                 S/O SAHADEV WALIKAR @ TALAWAR,
                 AGE. 40 YEARS,
                 OCCU. AGRIUCLTURE,
                 R/O. CHIKKA-BEVANOOR,
                 TQ. INDI, DIST. VIJAYAPURA-586209.
                                                     ...RESPONDENTS
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                                          NC: 2024:KHC-K:5405
                                    CRL.A No. 200014 of 2023




(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1
    SRI A.M.NAGARAL, ADV. FOR R2)


     THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION DATED 23.12.2022 AND ORDER OF CONVICTION
DATED 29.12.2022 PASSED BY THE ADDITIONAL SESSIONS
JUDGE FAST TRACK SPECIAL COURT - I AT VIJAYAPURA IN
SPL.CASE (POCSO) NO.8/2021 CONVICTING THE APPELLANT /
ACCUSED FOR THE OFFENCES PUNISHABLE U/S 376(2)(n) OF
IPC AND U/SEC. 6 OF POCSO ACT, 2012.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY


                     ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

1. Accused is in appeal before this Court under Section

374(2) of Cr.PC with a prayer to set aside the judgment and

order of conviction dated 23.12.2022 and the order of sentence

dated 29.12.2022 passed by the Court of Addl. Sessinos Judge,

Fast Track Special Court-I, Vijayapura, in Spl. Case (POCSO)

No.8/2021.

2. Heard the learned Counsel for the parties.

3. The appellant herein was charge-sheeted for the offences

punishable under Section 376(2)(n) of IPC and Sections 4 and

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6 of the Protection of Children From Sexual Offences Act, 2012

in Crime No.208/2020, registered by Indi Police Station,

Vijayapur. Appellant is the uncle's son of first informant, who is

the father of the victim girl. Appellant had spent his childhood

and grown in the house of first informant along with the victim

girl. On 22.11.2020, the victim girl allegedly had informed the

first informant and his wife that on 20.07.2020 at about 1.30

p.m. the appellant with an assurance to marry the victim girl

had committed sexual assault on her against her wishes and

thereafter, he had continued the said act on number of times.

The first informant thereafter informed his relatives about the

act committed by the appellant and subsequently, had

approached the police. The police after investigation in the case

had filed charge-sheet against the appellant and the Trial Court

after framing the charges against the appellant, read over and

explained the same to him. Since, the appellant pleaded not

guilty and claimed to be tried, the prosecution in order to prove

its charges against the appellant had examined 19 witnesses as

PW.1 to PW.19 and had got marked 22 documents as Ex.P.1 to

Ex.P.22. However, no defence evidence was led on behalf of

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the accused/appellant nor was any document marked in

support of defence.

4. After hearing the arguments addressed on both sides, the

Trial Court vide the impugned judgment and order convicted

the appellant for the offences punishable under

Section 376(2)(n) of IPC and Section 6 of the Protection of

Children from Sexual Offences Act, 2012 and for the offence

punishable under Section 6 of the POCSO Act, the appellant

was sentenced to undergo rigorous imprisonment for a period

of 20 years and pay fine of Rs.20,00/- and in default, to

undergo further imprisonment for a period of six months. Being

aggrieved by the said judgment and order of conviction and

sentence, the appellant is before this Court.

5. Learned Counsel for the appellant and the learned

Counsel for respondent no.2, jointly submit that during the

pendency of this appeal, the dispute between the parties has

been amicably settled at the intervention of the elders and

well-wishers of both the parties. After the order of sentence

passed by the Trial Court was suspended and the appellant was

enlarged on bail by this Court on 09.07.2024, the marriage of

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the appellant and the victim girl was performed on 22.07.2024

in the presence of elders and relatives of both the parties.

Appellant and the victim girl are living as husband and wife

after marriage and they intend to give a quietus to the dispute

and live a happy married life. Therefore, the appellant and the

victim have filed an application under Section 482 Cr.PC with a

prayer to quash the entire proceedings in the case.

6. Per contra, learned HCGP has brought to the notice of this

Court that since the offences for which the appellant has been

convicted are non-compoundable offences, the prayer made in

the application cannot be granted and that too in appellate

stage.

7. The application filed by the appellant and respondent

no.2 is taken on record. The same is signed by the respective

parties who are identified by their learned Advocates. The

application is also supported by the affidavit of the parties. In

paragraphs 3 to 6 of the affidavit of the appellant, it is stated

as under:

"3. It is submitted that, Complainant Sanganna @ Sangappa / PW-2 happens to be maternal uncle i.e. my grandfather's sister's son. Since my mother had passed

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away after my birth, I had grown along with the Complainant & his family. Myself & Victim both have grown up together. Since long myself and victim girl were in love with each other. I have not forced the victim at any point of time & it was voluntarily act of both of us. The Complainant lodged the complaint against me only when I upon ill-advice of my relatives refused to marry the victim. Moreover, at that time victim was minor so even for that reason marriage could not be performed. Even today I am in love with the victim girl and I intend to live with her all throughout my life.

4. I am told that after my conviction the victim situation had become miserable as there was social stigma attached against her and her marriage prospectus had completely gone. Even I realised my mistake and when the proposal of my marriage was told to me by my father I also agreed for it.

5. During the pendency of the appeal, I had approached this Hon'ble Court seeking suspension of sentence and release on bail. An affidavit was filed by my father stating that they are willing to get me and the victim married upon my release on bail.

6. On 09.07.2024 this Hon'ble Court was pleased to suspend the sentence of imprisonment & enlarged me on bail. After receipt of the interim order copy, on 22.07.2024 I under the aegis of elders, family members and friend married the victim girl with her consent and approval of her family members at Kaggod village. I have assured the victim as well as her family members

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that I would look after the victim with love & care. We are happily living together."

8. In paragraphs 3 to 7 of the affidavit of the victim, it is

stated as under:

"3. It is submitted that, the Appellant is the son of PW-11 Ashok and said Ashok happens to be the maternal uncle of my father Sanganna @ Sangappa/PW-2. Since the mother of the Appellant had passed away after the birth of Appellant, he had grown along with us & our family. We both have grown up together and were in love with each other since long. I have voluntarily been involved with him since I was in love with him. Even after the incident there was no issue. My father was constrained to lodge a complaint only when he refused to marry me on ill advice of few our relatives. Moreover at that time I was minor so even for that reason marriage could not be performed.

4. Initially during the trial I had deposed against the Appellant. Further, since my parents were against the child & as I could not take care of my baby, I was constrained to give my baby to orphanage because my parents had felt that the Appellant had betrayed me. After the conviction of the Appellant by the Hon'ble trial Court the

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Appellant was taken into custody. My condition had become miserable as there a social stigma attached to me and nobody was coming forward to marry me as well inspite many attempt by parents and relatives. During that time the elders of both the families considering my pitiable situation and in the best interest of both us came forward & mediated between my parents & the parents of the Appellant and made them agree for the proposal of my marriage with Appellant. Even Appellant was enquired while he was in custody and he was also willing to marry me.

5. During the pendency of the appeal, the Appellant had approached this Hon'ble Court seeking suspension of sentence and release on bail. An affidavit was filed by the father of the Appellant stating that they are willing to get me and the Appellant married upon the appellant being enlarged on bail.

6. This Hon'ble Court was pleased to suspend the sentence & enlarge the Appellant on bail vide Order Dt. 09.07.2024. Immediately after the Appellant was enlarged on bail we have got married as per customs and rituals of our community under aegis elders, family and friends on 22.07.2024 at Kaggod village. I have fond hope that myself and the Appellant would live happily

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together. We have approached the orphanage where our baby was left and we are trying to get back our baby.

7. The Appellant along with his family members have assured me that they would look after me well. Even the marriage was performed in the presence of my parents and family members. Now with such development I pray that the Judgment & Order of Conviction against the Appellant may be quashed in view such developments."

9. The Hon'ble Supreme Court in the case of RAMGOPAL VS

STATE OF MADHYA PRADESH - 2021 SCC OnLine SC 834, has

observed that the High Court after considering peculiar facts

and circumstances of a case and for justifiable reasons can

press Section 482 of the Code in aid to prevent abuse of the

process of any Court and/or to secure the ends of justice. It

was further observed that the High Court can quash non-

compoundable offences after considering the nature of the

offence and amicable settlement between the concerned

parties. The High Court can evaluate the consequential effects

of the offence and need to adopt a pragmatic approach to

ensure that quashing does not paralyze the very object of the

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administration of criminal justice system. It was further

observed that a restrictive construction of inherent powers

under Section 482 of Cr.PC may lead to rigid or specious justice

which may lead to grave injustice.

10. The Hon'ble Supreme Court in the case of RAMAWATAR

VS. STATE OF MADHYA PRADESH - 2021 SCC ONLINE SC 966

having reiterated its earlier judgment passed in the Ramgopal's

case supra, in paragraph No.13 has observed as follows:

"13. We, however, put a further caveat that the powers under Article 142 or under Section 482 Cr.P.C., are exercisable in post-conviction matters only where an appeal is pending before one or the other Judicial forum. This is on the premise that an order of conviction does not attain finality till the accused has exhausted his/her legal remedies and the finality is sub-judice before an appellate court. The pendency of legal proceedings, be that may before the final Court, is sine-qua-non to involve the superior court's plenary powers to do complete justice.

11. In the case of Aarush Jain vs. State of Karnataka and

another (Crl.P. No.3710/2022 DD 09.09.2022) a coordinate

bench of this Court has observed as follows:

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"xxxxxxxxxxx It is an admitted fact that the petitioner and the victim were close friends and were infatuated to each other. Several Courts as quoted hereinabove have considered the impact of hauling an under aged boy into the web of the provisions under the POCSO Act has clearly held that POCSO Act was not meant to punish the accused who were in love with the victims therein.

14. It is a known fact which bear consideration in the aforequoted judgments, in physiological parlance, that adolescence of a child is between 10 to 19 years and young age is said to be between 20 to 24 years. Therefore, adolescence is a continuum of development process in the life of a child metamorphosing into young age or an adult.

It would not be inapt to notice that young children or boys who have not yet reached the age of 18 years, many a time, without realizing or being ignorant of the consequences of their act which they perform in the frenzy of youth, emerge themselves as offenders under the provisions of POCSO Act and face serious consequences. Romantic love between a boy and a girl of the age of adolescence sometimes arising out of infatuations result in the boy embroiling himself into the vortex of the provisions of the POCSO Act.

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15. The laudable object for which the POCSO Act was brought into effect cannot be forgotten, but that would not mean that it is meant to punish young children who would fall in love and commit such acts which would become punishable under the Act, a caveat, this Court is not painting every incidence of sexual activity of any kind that would become an offence under the POCSO Act, with the same brush, but there are cases of the kind, like the one at hand, where the adolescents have indulged in such acts due to lack of knowledge of consequence of law. xxxxxxxxxxxx".

12. In the case on hand, the appellant was aged about 21

years and the victim was aged more than 17 years as on the

date of incident. The appellant and the victim are close

relatives. As on the date of registration of the FIR, the victim

was pregnant and she had given birth to a child subsequently.

Now at the intervention of the elders and well-wishers of both

the parties, the dispute has been settled and the marriage of

the appellant and the victim has been performed.

13. Having regard to the peculiar facts and circumstances of

the case and in the light of the judgment of the Hon'ble

Surpeme Court in Ramgopal's case supra and Ramawatar's

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