Karnataka High Court

Neelakantappa vs State By on 26 July, 2024

                           1         Crl.A No.1203/2019



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH 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.1203 OF 2019
BETWEEN:

NEELAKANTAPPA
AGED ABOUT 56 YEARS,
S/O BASAPPA,
R/AT KANGUVALLI VILLAGE,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 101
                                             ...APPELLANT
(BY SRI. PRATHEEP K.C, ADVOCATE)

AND:

1.   STATE BY HOSADURGA POLICE STATION
     CHITRADURGA DISTRICT,
     REPRESENTED BY PUBLIC PROSECUTOR,
     HIGH COURT BUILDING,
     BENGALURU - 560 001.

2.   SMT. NAGAMANI
     W/O JAYADEVA,
     AGED ABOUT 31 YEARS,
     R/AT, KANGUVALLI VILLAGE,
     HOSADURGA TALUK,
     CHITRADURGA DISTRICT - 56.
                                           ...RESPONDENTS
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II A/W
    SMT. SOWMYA R, HCGP FOR R1;
    SRI. MANJUNATH N.D, ADVOCATE FOR R2)

     THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.PC
PRAYING TO SET ASIDE THE JUDGMENT PASSED BY THE
                                      2              Crl.A No.1203/2019



LEARNED II ADDITIONAL DISTRICT AND SESSIONS & SPECIAL
JUDGE AT CHITRADURGA IN SPECIAL CASE (POCSO)
NO.199/2018 VIDE JUDGMENT DATED 15.04.2019 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 4 & 6 OF POCSO ACT
READ WITH SECTION 376(D)(B) OF IPC, APPELLANT OUGHT TO
BE ACQUITTED FOR THE CHARGES LEVELLED AGAINST HIM, IN
THE INTEREST OF JUSTICE AND EQUITY; b) GRANT SUCH
OTHER RELIEF/S AS THIS HON'BLE COURT DEEMS FIT IN THE
FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST
OF JUSTICE AND EQUITY.


Date on which the appeal was reserved for      27.06.2024
judgment
Date   on  which    the   judgment       was   26.07.2024
pronounced



     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT THIS DAY,
J.M.KHAZI J., PRONOUNCED THE FOLLOWING:

                            JUDGMENT

This appeal is filed by accused, challenging his

conviction and sentence for the offences punishable under

Sections 376DB of I.P.C and Sections 4 and 6 of POCSO

Act, imposed by the trial Court.

2. For the sake of convenience, parties are

referred to by their ranks before the trial Court.

3. A charge sheet came to be filed against the

accused alleging that on 06.05.2018 in between 7.00 and

8-00 a.m., at his house, accused committed aggravated

penetrative sexual assault on the prosecutrix who was

aged four years six months and thereby committed the

above stated offences.

2. In respect of the incident, complaint came to be

filed by the mother of the prosecutrix. It is stated in the

complaint that the accused and the family of prosecutrix

are neighbours residing in the same area in Kanguvalli

Village, Hosadurga Taluk of Chitradurga district. On

06.05.2018, at 7.00 a.m., prosecutrix went out to play.

Around 8.00 a.m., when she came back, the complainant

observed that prosecutrix was wearing her pant inside out.

When questioned about it, she replied that accused made

her to wear it like that. Immediately, the complainant

removed her pant and found that prosecutrix was bleeding

from her vagina and enquired about it. The prosecutrix

disclosed that accused caused the injury and paid her two

Rupee coin which she was holding. Immediately the

complainant went to the house of accused along with the

prosecutrix and questioned him as to why he had done

such a thing to her daughter. Accused denied the said

allegation. However, when complainant returned to her

house saying that she was going to file complaint, accused

followed her, held her legs and begged to excuse him.

Along with her brothers Chetan and Maralusiddappa, she

went to the Government hospital for treatment of her

daughter and then filed the complaint.

3. After conducting detailed investigation, the

investigating officer filed charge sheet against the

accused.

4. After conducting detailed trial, the trial Court

held that prosecution proved the allegations against

accused beyond reasonable doubt and convicted and

sentenced him as detailed in the impugned judgment and

order.

5. Being aggrieved by the impugned judgment and

order, the accused filed this appeal contending that the

trial Court has not appreciated the entire evidence and

other reliable materials on record and passed the

impugned judgment and order, as such it is perverse. The

trial Court also not appreciated the fact that on account of

chit business, there was ill will between the family of

complainant and accused and as such a false complaint is

filed. Prosecutrix was aged only four years and when

questioned by the learned Sessions Judge, she was not in

a position to give answers. She admitted that on that day,

she played on a bullock cart and probably she was injured

coming in contact with any object. There are no witnesses

to the incident.

5.1 The testimonies of PWs-1, 5 and 6 are based on

the information provided to them. Being relatives of the

complainant, they are interested witnesses. There is

evidence to the effect that the clothes of the prosecutrix

were handed over to the doctor and also to the

investigating officer. The evidence of the medical officer

revealed that the prosecutrix had not sustained any

external injuries. The medical officer who examined the

prosecutrix did not deny the suggestion that the injury

suffered by the prosecutrix was possible if the injured

while playing on a bullock cart had come in contact with a

hard substance. Viewed from any angle, the impugned

judgment and order is not sustainable and he prayed for

allowing the appeal by setting aside the same and to set

the accused at liberty.

6. On the other hand, during the course of his

arguments learned State Public Prosecutor-II submitted

that prosecutrix aged four years six months was in the

habit of visiting the house of the accused and playing. On

the date of incident, the wife of the accused was not in the

house. When the prosecutrix went to play in the house of

accused, he removed her pant, committed aggravated

penetrative sexual assault on her. Finding that prosecutrix

was wearing her pant inside out, on questioning,

complainant came to know about the incident. She also

found prosecutrix bleeding from vagina. In fact,

complainant confronted the accused about the incident

and when he denied, she returned to her house saying

that she is going to file complaint, after which accused

begged to excuse him. Immediately, the complainant took

the prosecutrix to the hospital along with her two brothers

and one Dakshina Murthy.

7. He would further submit that on receipt of MLC

report, the concerned police visited the hospital and

received the complaint. After investigation charge sheet is

filed against the accused. The evidence placed on record,

including the testimonies of complainant and prosecutrix,

coupled with the medical evidence, prosecution proved the

allegation against accused beyond reasonable doubt. In

fact, the complainant and her family members are not

having any ill will or motive to falsely implicate the

accused. He would submit that the punishment imposed is

also proportionate to the crime and on this ground also,

the appeal is liable to be dismissed and sought for

dismissal of the same.

8. Learned counsel appearing for complainant

submitted that the victim clearly deposed about the

incident. Though she was aged four years six months at

the time of incident, analyzing her evidence clearly

indicates that she is not tutored. The evidence of the

victim and her mother is corroborated by the medical

evidence. In the circumstances presumption is required to

be drawn which the accused failed to rebut. The conduct

of the accused proves that he committed the offence. No

justifiable grounds exist to interfere with the impugned

judgment and order and prays to dismiss the appeal.

9. We have heard elaborate arguments of both

sides and perused the records.

10. It is not in dispute that the family of accused

and the prosecutrix are residents of Kanguvalli. They were

neighbours and in visiting terms. Prosecutrix was in the

habit of visiting the house of accused for playing. The

evidence of complainant and her husband - the parents of

the prosecutrix i.e., PWs-1 and 2 reveal that the house of

accused is in the back lane after about 10 houses from

their house. Their evidence also reveals that the two sons

of accused are working in Bengaluru and accused and his

wife were staying in their house. On the date of incident,

the wife of the accused was not in the house. These facts

are not disputed by the accused.

11. It is pertinent to note that complainant the

mother of prosecutrix is not an eye-witness to the

incident. However, she came to know about it immediately

after the incident when the prosecutrix came inside her

house and on finding that she was wearing her pant inside

out, she questioned and while she removed the pant and

made her to wear it properly, she found that the

prosecutrix was bleeding from vagina and on enquiry with

the prosecutrix realised that there was sexual assault by

the accused. Despite the fact that complainant is not an

eye-witness, her testimony is admissible as res gestae

under Section 6 of the Indian Evidence Act. Immediately,

she rushed to the accused and confronted him. He denied

of having committed any offence. She returned home by

saying that she is going to file complaint. On hearing this,

the accused followed the complainant to her house and fell

on her feet, requesting to be excused. This conduct of

accused is also a fact relevant to the prosecution case and

is inconsistent with his innocence.

12. Regarding the incident in question, the first and

foremost important aspect required to be noted is that at

the time of incident the prosecutrix was aged four years

and six months. As per Ex.P13 her date of birth is

19.09.2013. Despite her tender age, when her mother,

observing that prosecutrix was wearing her pant inside

out, questioned her, she replied that it was done by the

accused and revealed the fact of penetrative sexual

assault by the accused. Immediately she was taken to the

hospital, where PW-9 Dr M G. Sudha examined her.

Complainant disclosed her the facts leading to the

prosecutrix bleeding from the vagina. On examination,

though PW-9 has not found any external injuries, she

noted a tender fresh bright red mucosal tear at 6 o'clock

position at four chatte measuring 01.25x0.2x01 cms. In

Ex.P22, the medical examination report of the sexual

violence pertaining to the prosecutrix, PW-9 has noted the

history of assault as narrated by the complainant. She has

also noted the fact that mother of prosecutrix washed the

blood stained pant of the prosecutrix which she was

wearing at the time of incident.

13. However, PW-9 also found that the underwear

and the pant, which the prosecutrix was wearing at the

time of her examination were also blood stained.

Therefore along with them, she collected her top (girl's

shirt) also and handed over to the concerned police along

with 2 valval smears, 2 valval swab and nail clippings.

During her cross-examination, PW-9 deposed that since

the complainant stated that she washed the blood stained

pant, which the prosecutrix was wearing at the time of

incident, she did not collect them. Complainant also stated

that after the medical examination, the doctor collected

the shirt, pant, and the underwear which prosecutrix was

wearing at the time of her examination at MOs-1 to 3. PW-

9 examined the prosecutrix within five hours of the

incident and noted genital bleeding and pain in genitals

since the incident.

14. A suggestion is also made to PW-9, the medical

officer that if the child was hurt while playing on bullock

cart, the injury of the nature sustained by her was

possible, and to this suggestion PW-9 clearly stated that in

such an event, corresponding other injuries should also be

there.

15. After registering the case, the investigating

officer has got the statement of prosecutrix recorded by

PW-12 M Sharavathi, woman PSI as per Ex.P4, wherein

also the prosecutrix has reiterated the facts forthcoming in

the complaint. The investigating officer has also got

recorded the statement of the prosecutrix through the

Judicial Magistrate as per Ex.P12, wherein also she

reiterated the fact of sexual assault by the accused and

stated that after the incident, she showed the injury to her

mother who took her to the hospital. Before the Court also

the prosecutrix who is examined as PW-4 clearly deposed

regarding the incident and stated that she has disclosed

the said fact before the police and also the Judge. During

her cross-examination, she denied that no such incident

had taken place and that she sustained the said injury

while scratching with her nail.

16. Though during her cross-examination, the

prosecutrix admitted that on that day, she played on the

bullock cart, but denied that she sustained the injury

coming in contact with the Yoke (£ÉÆUÀ) of bullock cart. She

also stated that at the time of incident except the accused

no one was present in the house. Despite the fact that at

the time of incident, the prosecutrix was aged about four

years six months, after the incident, immediately she had

promptly disclosed the said fact to her mother. While

giving statement before PW-12, she reiterated the said

fact. When her statement under Section 164 was recorded

on 08.05.2018, she repeated the fact of sexual assault

made on her by the accused. On 25.09.2018, when the

evidence of prosecutrix was recorded before the Court,

she clearly spoke about the incident. Despite being a child

of tender age, her evidence is cogent, consistent and

convincing. The examination of the evidence of the

prosecutrix makes it clear that she was not a tutored

witness. The fact that there was no delay in filing the

complaint gives credence to the prosecution case.

17. PW-7 Jayadevaswamy is the father of

prosecutrix. At the time of incident, he was working at

Bengaluru. Immediately, after coming to know about the

incident telephonically, he came to Hosadurga Hospital and

joined his wife and others. Through the cross-examination

of PWs-1 and 7, it was elicited by the defence that the

mother of the prosecutrix was a member of a chit conducted

by Ashirwad Micro Finance and the father of the prosecutrix

was a member of chit run by male members. Though they

have admitted that the accused and his wife were also

members of the respective groups, they have denied that

regarding payment of the installments there was dispute

between them and for this reason, the accused was falsely

implicated. Except the suggestions, the defence has not

succeeded in establishing that because of the disputed chit

fund transaction, the accused has been falsely implicated. In

fact, the complainant has deposed that registers are

maintained regarding the said transactions. She has signed

them for having paid the installments and they may be

summoned. Of course the defence has not chosen to do so.

18. If at all the parents of prosecutrix were

intending to falsely implicate the accused, the defence has

no explanation regarding the injury sustained by the

prosecutrix. The prosecutrix has denied the suggestion

that she sustained the injury while scratching her vagina

with nail. No such suggestion is made to the complainant

as well as PW-9 Dr M.G. Sudha who was in a competent

position to depose whether the injury suffered by

prosecutrix was possible if she had scratched with nail.

19. After coming to know about the incident and

confronting the accused, the complainant informed her 2

brothers viz, PW-6 Chetan and CW-9 Maralusiddaswamy

and with them took the prosecutrix to the hospital, as her

husband was at Bengaluru. PW-5 Dakshina Murthy is a

relative of complainant. He is also resident of Kanguvalli. He

was working as a computer operator at the Gram

Panchayath. His evidence reveals that on that day, he had

gone to Hosadurga and after completing the work at

Hosadurga, he was returning to Kanguvalli on his

motorcycle. He saw complainant along with her brothers

and prosecutrix coming from Kanguvalli in an autorickshaw

and came to know about the incident. He also followed them

to the hospital. PW-6 Chetan, the brother of complainant

has also deposed that after coming to know about the

incident, they accompanied the complainant and prosecutrix

to the hospital. By the time they reached the hospital, PW-7

Jayadevaswamy, the father of prosecutrix also joined them.

They came to know about the incident through the

complainant.

20. During the cross-examination of PW-7

Jayadevaswamy, it is elicited that PW-6 Chetan brought the

clothes of prosecutrix which were kept in the house and

handed them over to the medical officer who examined her.

However, this suggestion was not made to PW-6 Chetan and

also the medical officer i.e, PW 9 Dr M.G. Sudha. In fact,

during her cross-examination PW-9 has clearly stated that

since the mother of the prosecutrix had washed her pant

which the prosecutrix was wearing at the time of incident,

she did not collect the same. On the other hand, the report

at Ex.P22 in as much as the testimonies of PWs-1 and 9

reveal that even the pant and underwear, which the

prosecutrix was wearing at the time of her examination

were also blood stained and she collected the same.

Therefore, the fact that the pant which the prosecutrix was

wearing at the time of incident was not seized, would not go

to the root of the case, especially when it was not the case

of the prosecution that due to sexual assault, there was

Pinole penetration, ejaculation and discharge of sperms.

21. On the arrest of accused, he was subjected to

medical examination by PW-10 as per the report at Ex.P24

by PW-10 Dr Yogesh. He has given evidence that accused

is able to perform sexual act. Along with the biological

samples collected from the accused, his clothes were also

recovered through PW-3 Chidananda and CW-7 Ashoka.

The FSL report at Ex.P23 reveals that the pant and

underwear of the prosecutrix at Sl.No.3 and 5 were

stained with human blood of 'B' group, whereas the blood

samples of the accused at Sl.Nos.7 and 8 was of 'O' group.

Thus, despite the fact that the complainant changed the

underwear and pant of the prosecutrix while taking her to

the hospital, on account of the injury suffered by her, the

changed clothes of the prosecutrix, viz., the underwear

and pant again became blood stained and it was revealed

in the FSL report. Having regard to the fact that according

to the prosecution, there was no ejaculation and release of

sperms, therefore change of clothes of the prosecutrix did

not prejudice the accused.

22. Of course, the testimonies of PWs-11, 12 and

13 regarding the investigation conducted by them,

corroborates the testimonies of prosecution witnesses.

Despite her tender age, the evidence of the prosecutrix is

reliable and trustworthy. The testimonies of PWs-1, 5, 6

and 7, who are close relatives of the prosecutrix is also

cogent, convincing and trustworthy. In the absence of any

ill will or any reason for false implication, we find no

reason to disbelieve their evidence. Taking into

consideration the entire material placed on record, the

trial Court has come to a correct conclusion that the

charges levelled against the accused are proved beyond

reasonable doubt. On re-appreciation of the case of the

prosecution in the light of the documentary evidence

placed on record, we find no reason to interfere with the

conclusions arrived by the trial Court.

23. Now, coming to the quantum of punishment

imposed on the accused. The charge sheet is filed against

the accused alleging offences punishable under Sections

376 I.P.C and Sections 4 and 6 of POCSO Act. The date of

incident is 06.05.2018. Therefore the amending Act of

2013 is applicable. Though the offence punishable under

Section 376 (3) is made out, the trial Court has framed

charge for the offence punishable under Section 376 DB

which is punishment prescribed for gang rape on a women

under 12 years of age. The punishment prescribed for the

said offence is imprisonment for life which shall mean

imprisonment for the remainder of person's natural life,

and with fine, or with death. Therefore, we are of the

considered opinion that the offence punishable under

Section 376 (3) is made out, which is punishable with

rigorous imprisonment for a term which shall not be less

than 20 years, but which may extend to imprisonment for

life, which shall mean imprisonment for the remainder of

that person's natural life, and shall also be liable to fine. In

other words the punishment prescribed under Section

376(3) is less severe than what is prescribed for the

offence under Section 376 DB and a discretion is also

given to the Court in deciding the punishment. Of course

the discretion is required to be used judiciously.

24. The offence under Section 4 of POCSO Act

prescribes punishment for penetrative sexual assault and

it is punishable with imprisonment of either description for

a term which shall not be less than 7 years, but which

may extend to imprisonment for life and shall also be

liable to fine.

25. The offence under Section 6 of POCSO Act

prescribes punishment for aggravated sexual assault and

it is punishable with rigorous imprisonment for a term

which shall not be less than 10 years, but which may

extend to imprisonment for life and shall also be liable to

fine.

26. As per Section 42 of the POCSO Act which deals

with alternative punishment, when an act or omission

constitute an offence punishable under this Act and also

under any other law for the time being in force, then,

notwithstanding anything contained in any law for the time

being in force, the offender found guilty of such offence

shall be liable to be punished only under such law or this

Act as provides for punishment which is greater in degree.

27. Since the offence committed by the accused

amounts to penetrative sexual assault and since the

prosecutrix was aged four years six months as on the date

of offence, it answers the definition of aggravated

penetrative sexual assault calling for higher punishment,

no separate punishment is required to be imposed under

Section 4.

28. When compared to Section 6 the punishment

prescribed under Section 376(3) is greater in degree, the

accused is liable to be punished under Section 376(3). The

trial Court has sentenced the accused under Section 376

DB for imprisonment for the remainder of his natural life

and sentenced to pay fine of Rs.30,000/-. Having regard

to the fact that though the offence committed by the

accused answers the definition of aggravated penetrative

sexual assault, there is no rupture of hymen. The accused

is aged 55 years. He is a married person having wife and

children. Taking into consideration these aspects we are of

the considered opinion that sentencing him to undergo

imprisonment for remainder of his natural life is very

harsh and sentencing him to undergo rigorous

imprisonment for a period of 20 years would meet the

ends of justice. Accordingly, we substitute the punishment

of imprisonment for remainder of life of the accused by

rigourous imprisonment for 20 years. The fine imposed by

the trial Court is maintained.


                                  ORDER

     (i)     Appeal is partly allowed.

     (ii)    The       judgment             of     conviction      dated

             15.04.2019           in             Spl.Case       (POCSO)

No.199/2018 on the file of II Addl.District

and Sessions & Spl.Judge, Chitradurga, is

confirmed, but the sentence imposed by the

trial Court is modified and the

appellant/accused is directed to serve

rigorous imprisonment for 20 years instead

of life imprisonment for remainder of his

life. The fine imposed by the trial Court is

maintained.

(iii) The Registry is directed to send back the

trial Court records along with copy of this

judgment forthwith.