Karnataka High Court

Ramamurthy vs State Of Karnataka on 31 July, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                 CRL.A No. 1907 of 2017




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 31ST DAY OF JULY, 2024

                                       BEFORE
                      THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                          CRIMINAL APPEAL NO. 1907 OF 2017
               BETWEEN:

               1.    RAMAMURTHY
                     S/O VENKATESHAPPA
                     ELECTRICIAN, 4TH WARD
                     AGED ABOUT 33 YEARS,
                     2ND CROSS, TANK BUND ROAD
                     CHINTAMANI
                     CHIKKABALLAPUR DISTRICT-563125
                                                              ...APPELLANT
               (BY SRI. S.Z.BAREED, ADVOCATE)

               AND:

               1.     STATE OF KARNATAKA
                      BY CHINTAMANI TOWN POLICE
                      REPT BY STATE PUBLIC PROSECUTOR
Digitally             HIGH COURT OF KARNATAKA
signed by
LAKSHMI T             BANGALORE-01
Location:      2.     SMT.HAMSA JYOTHI
High Court
of Karnataka          W/O. LATE MUKUNDA
                      AGED ABOUT 45 YEARS
                      R/AT OPP. M.W.SCHOOL,
                      RAMA KRISHNAPPA HOUSE,
                      KR\ R BADARANE, CHINTAMANI TOWN
                      CHIKKABALAPURA-563125.
                      ALSO AT 8TH CROSS,
                      KASTURBA NAGAR
                      BENGALURU-560 026.
                                                           ...RESPONDENTS
               (BY SRI. RAHUL RAI K., HCGP FOR R1;
               SRI. SHARATH J.M, ADVOCATE FOR R2)
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                                   CRL.A No. 1907 of 2017




      THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
DATED 18.01.2017 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHIKKABALLAPURA (SITTING AT
CHINTAMANI) AND SPECIAL COURT FOR POCSO CASES, IN
SPL.S.C.NO.45/2016 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 376(2)(i) OF IPC AND SEC. 4 AND 8
OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,
2012.

    THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:   HON'BLE MR JUSTICE MOHAMMAD NAWAZ


                    ORAL JUDGMENT

In this appeal, accused has challenged his conviction

and sentence passed by the Court of II Additional District

and Sessions Judge, Chickballapur (sitting at Chintamani)

and Special Court for POCSO cases in Spl.S.C.No.45/2016

wherein, the learned Sessions Judge vide Judgment and

Order dated 18/20.01.2017 has convicted and sentenced

him for the offence punishable under Section 376(2)(i) of

IPC, Sections 4 and 8 of POCSO Act, 2012 (for short

'POCSO Act').

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2(i). For the offence punishable under Section

376(2)(i) and Section 4 of POCSO Act, accused has been

sentenced to undergo rigorous imprisonment for a period

of 10 years and to pay fine of Rs.10,000/- and in default

of payment of fine, to undergo simple imprisonment for

6 months.

2(ii). For the offence punishable under Section 8 of

POCSO Act, accused has been sentenced to undergo

simple imprisonment for a period of 3 years and to pay

fine of Rs.5,000/- and in default of payment of fine, to

undergo simple imprisonment for 3 months.

3. It is the case of prosecution that, the victim

child was aged about 10 years and between 2.5.2015 and

24.3.2016, accused committed sexual violence against her

for about 8-10 times and thereby committed the charged

offences under Section 376 of IPC and Sections 6 and 8 of

POCSO Act.

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4. Before the trial Court, prosecution in all

examined 14 witnesses and got marked 20 documents and

MOs.1 to 9 to establish the charges levelled against the

accused.

5. PW1 is the first informant. She was working as

Counselor at Women's Special Treatment Unit,

Government Hospital, Chickballapur. The victim child is

examined as PW11 and her mother as PW12. PW13 is the

Medical Officer who examined the victim and PW14 is the

P.I., who registered the case, conducted investigation and

filed charge sheet.

6. Apart from the evidence of the above

witnesses, prosecution has also placed reliance on the

evidence of PW8 who examined the accused and issued

report, marked as Ex.P10. PW9, the Head Master of the

School, where the victim studied, who issued the Study

Certificate of the victim, wherein the Date of Birth of the

victim is mentioned as 01.11.2006 and PWs.6 and 7-

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Radiologist and Dentist, who have issued Ex.P8 and Ex.P9

reports regarding the age of the victim. PW10 is the Head

Constable who carried the articles to the FSL for

examination.

7. PWs.2 and 3 are the panch witnesses to the

spot mahazar-Ex.P3. PWs.4 and 5 are neighbours of the

accused. However, PWs.2 to 5 have turned hostile and

not supported the case of prosecution. Their evidence in

no way help the prosecution case.

8. The age of the victim is not seriously disputed

by the learned counsel for appellant. According to the

prosecution, the victim was aged 10 years at the time of

incident. As per Ex.P11 i.e, Study Certificate issued by

PW9, the Date of Birth of the victim child is 01.11.2006.

The incident is alleged to have taken place between

2.5.2015 and 24.03.2016. The age of the victim child was

therefore proved to be below 12 years at the time of

incident in question. Further, PW7 is the Dentist, who

examined the victim child and issued Ex.P9, wherein he

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has opined that the victim child was aged about 10 years.

Similarly, PW6 is the radiologist, who has issued report-

Ex.P8, on examination of the victim child. He has

estimated her age between 10 years and 14 years.

9. There is no serious cross-examination of PWs.7

and 9. The defence has not disputed the Date of Birth of

the victim child mentioned in the certificate issued by

PW9. The cumulative effect of evidence of PWs.6,7 and 9

would establish that the victim was aged below 12 years

as on the date of incident.

10. Before discussing the evidence of the victim, it

may be necessary to appreciate the evidence of PW12, her

mother. A perusal of her evidence reveal that, initially,

she was residing along with her children in Kadambavadi,

Maharashtra. Her husband died due to HIV in the year

2007. She got acquainted with the accused through

Facebook. Accused was having conversation with her over

phone. Thereafter, the accused stating that he will look

after her and her children, secured them to Chintamani on

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01.05.2015. After 2-3 days, he tied a turmeric thread and

married her. Thereafter, she started residing with him in

his house in Tank Bund Road, Chintamani. She has stated

that since mother of the accused was torturing her, she

wanted to return to her village. The accused requested her

to stay back. Thereafter, they stayed in a rented house

situated at Nareppanakunte, near M.W.A. School,

Chintamani. She has stated that she was taking treatment

for her HIV disease every month at ART Centre in

Chickballapur. On 30.03.2016, she along with her

daughter went to ART Centre where her daughter was

subjected to counseling and at that time, she revealed

about the incident of sexual violence committed on her

before the Counselor. Her daughter was examined by

Dr.Manjula (PW7). She suggested them to lodge a

complaint and accordingly, PW1 the Counselor working at

Special Unit of Counselling Centre, District Government

Hospital, Chickballapura, enquired them and sent them to

Police Station.

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11. Ex.P1 is the complaint. PW12 has identified her

signature marked at Ex.P1(c). In her cross-examination,

the defence has not disputed the signature of PW12 in

Ex.P1.

12. PW1 is the Counselor, who enquired both the

victim child as well as her mother. She has stated that in

her presence the victim child as well as her mother signed

the complaint, which is marked as Ex.P1.

13. The learned counsel for appellant has

contended that, prosecution has not proved that the

accused married PW12 and the victim child and her

mother were residing along with the accused. It is his

contention that according to prosecution, the incident took

place between 2.5.2015 and 24.03.2016 when the victim

child and her mother were staying in the house of the

accused at Tank Bund Road, Chintamani, whereas both

PWs.11 and 12 have stated that in the said house they

stayed only for 1½ months. Thereafter, they stayed in a

rented house at Nareppanakunte, near M.W.A. School,

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Chintamani. He contended that till 30.03.2016, the

incident was not revealed by the victim child to her mother

or any one else and even according to PW12, she was

visiting the ART Centre in Chickaballapur every month for

taking treatment, but the incident was not revealed to the

Doctor. He contended that PW12 and her daughter i.e.,

victim child started staying in the house of the accused

from 1.5.2015 and if any such incident as alleged by the

prosecution had taken place and the victim child was

threatened by the accused, then the victim would have

informed the matter to her mother who was staying with

her. Therefore, he contended that the evidence of victim-

PWs.11 and 12 cannot be believed. He also contended

that the trial Court has convicted the accused for the

offence punishable under Section 376(2)(i) r/w 4 and 8 of

POCSO Act whereas the ingredients to attract the said

offence are not proved by the prosecution. He contended

that the medical evidence does not support the case of

prosecution that the accused has committed aggravated

penetrative sexual assault on the minor victim.

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14. The learned High Court Government Pleader,

on the other hand, has contended that the evidence of

PWs.11 and 12 fully establishes the case of the

prosecution and their evidence is further corroborated by

the medical evidence, wherein the doctor has opined that

non-penetrative sexual assault cannot be ruled out and

the history furnished as per Ex.P17 is that sexual violence

occurred around 8 times from 2.5.2015 to 24.3.2016. He

contended that the trial Court having appreciated the

entire evidence and material on record has rightly

convicted the accused for the charged offences.

15. The victim child is examined as PW11. She has

deposed that earlier they were living in Maharashtra. The

accused used to talk to her mother over phone. He asked

her mother to come to his place saying that he will look

after them. She has further stated that the accused

secured them from Chintamani bus station and took to his

house situated in Tank Bund road, Chintamani and in their

house, accused and his parents and his brother were

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residing. For about 11 months they stayed in their house.

Her brother took a house on rent. The accused used to

beat her mother when they were staying in his house at

Tank Bund road. Therefore, they all shifted to the rented

house taken by her brother. She has further stated that in

the said house there were 3 rooms. In the hall, she and

the accused were sleeping. The accused used to call her

to sleep with him. Her mother and his brother were

sleeping in the hall. When she was sleeping, accused used

to remove his pant and remove her underwear and keep

his private part on her private part. He threatened her

that he will kill her and her mother if the matter is

disclosed to her mother. She has stated that in a period of

10 months, about 8 times the accused has committed the

said act and when no one was in the house even in the

morning he has committed similar act. Though the

defence has cross-examined PW11, she has withstood her

statement made in the chief examination. The said part of

the evidence of PW11 has not been demolished in the

cross-examination.

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16. In the case on hand, though a contention was

raised that the marriage between the accused and PW12 is

not proved, it is not necessary to discuss as to whether

the accused has married PW12. This Court has to see as

to whether the charges against the accused are

established beyond reasonable doubt. The evidence of

PWs.11 and 12 clearly establishes that PW12 was initially

staying in Kadambhavadi, Kholapur, Maharastra. Her

husband, who was infected with HIV disease died in the

year 2007. Thereafter, she got acquainted with the

accused through facebook and on his request, she came to

Chintamani with her 2 children and started staying with

him initially in his house situated at Tank Bund Road and

thereafter, started staying with him along with her

children in a rented house at Nareppanakunte, near

M.W.A. School, Chintamani. PW12, who was also infected

with HIV used to visit ART Centre in Chickballapur for

treatment. On 30.03.2016, she went to ART Centre along

with her daughter i.e., the victim, who was examined by

the Doctor and during such examination, she revealed

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before the doctor about the sexual assault committed on

her by the accused. The evidence of PW11, which is

corroborated by the evidence of PW12 is trustworthy.

17. The accused was charged for the offence

punishable under Section 376 of IPC and Sections 6 and 8

of POCSO Act. A careful perusal of evidence of PWs.11

and 12 do not clearly establish that there was penetrative

sexual assault on the victim. PW11 has deposed that the

accused used to remove his pant and remove her

underwear and keep his private part on her private part.

The learned High Court Government Pleader has

contended that as per medical report, the hymen of the

victim child was absent and therefore, it establishes that

the victim child was subjected to penetrative sexual

assault. PW12, in her evidence, has stated that her

daughter revealed to the Doctor that the accused used to

remove her underwear and keep his private part on her

private part and also rub her chest and her private part

with his hand.

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18. PW13 is the Doctor who examined the victim on

30.03.2016. She has collected the vaginal swab, Vulval

Swab, Vulval smear as well as innerware and pant of the

victim, which were sent to FSL for examination by the I.O.

On receipt of the FSL report, PW13 has given her final

opinion. Her reports are marked as Exs.P16 to 18. As

per Ex.P18-final opinion, she has opined that there are no

signs of penetrative sexual intercourse. She has further

opined that non-penetrative sexual intercourse cannot be

ruled out. As per the history furnished, according to

Ex.P16, the accused was sleeping with the victim and

doing sexual violence such as touching the vagina with

penis. There is no mention of penetration, insertion of

finger etc. As per PW13, there are no signs of penetrative

sexual intercourse and non-penetrative sexual violence

cannot be ruled out. Hence, it cannot be held that the

ingredients of Section 376 or Section 3 of the POCSO Act,

punishable under Section 4 of the Act are established

beyond reasonable doubt. From the evidence and material

on record, it can be seen that the accused has committed

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sexual assault, as defined under Section 7 of the POCSO

Act. The victim child was proved to be aged below 12

years at the time of incident and hence, in view of Section

9(m) of the POCSO Act, the accused has committed

aggravated sexual assault. The said offence is punishable

under Section 10 of the POCSO Act wherein, imprisonment

prescribed shall not be less than 5 years but which may

extend to 7 years and shall also liable to fine.

19. The trial Court has convicted the accused even

under Section 8 of POCSO Act, apart from Sec.376(2)(i) of

IPC and Section 4 of the POCSO Act. Since the victim is

aged below 12 years, the offence which would attract is

one under Sections 9 and 10 of the POCSO Act.

20. The accused was arrested on 30.03.2016 and

since then he is in custody. He has undergone

imprisonment for more than 8 years. The maximum

sentence of imprisonment prescribed under Section 10 of

the POCSO Act is 7 years. Hence, the following:

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                       ORDER

i.     Appeal is allowed in part.


ii.    The       Judgment                 and      Order       dated

18/20.1.2017 passed by the Court of II

Additional District and Sessions Judge,

Chickballapur (sitting at Chintamani) and

Special Court for POCSO cases in

Spl.S.C.No.45/2016, convicting and

sentencing the appellant/accused for the

offence punishable under Section 376(2)(i)

of IPC and Sections 4 and 8 of POCSO Act,

is hereby set aside.

iii. Appellant/accused is convicted for the

offence under Section 9(m) punishable

under Section 10 of the POCSO Act, 2012.

He is sentenced to undergo R.I. for a period

7 years and to pay a fine of Rs.10,000/- in