Karnataka High Court
Revanasidda vs The State Of Karnataka on 3 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200161 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200161 OF 2017 (374)
BETWEEN:
REVANASIDDA
S/O SURYAKANTA GOLLUR,
AGE: 20 YEARS,
OCC: STUDENT,
T/O GUNDA GURTI,
TQ: CHITTAUR-585 211
DIST: KALABURAGI.
...APPELLANT
(BY SRI SHIVASHARANA REDDY, ADVOCATE)
AND:
Digitally 1. THE STATE OF KARNATAKA
signed by
SHILPA R THROUGH MUDBOOL POLICE STATION
TENIHALLI
Location:
(BY ADDL. SPP
HIGH COURT HIGH COURT BUILDING-585 102.)
OF
KARNATAKA
2. SMT. SUVARNA
W/O SHIVARAYYA SHAHABAD
AGE: 35 YEARS
OCC: LABOUR
R/O: GUNDGURTI
TQ: CHITTAPUR
KALABURAGI-585 211.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP FOR R-1; R-2 SERVED)
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CRL.A No. 200161 of 2017
THIS CRL.A. IS FILED U/S.374(2) OF THE CRIMINAL
PROCEDURE CODE PRAYING TO ALLOW THE APPEAL BY
SETTING ASIDE THE JUDGMENT AND ORDER PASSED BY II
ADDL. DISTRICT AND SESSIONS JUDGE AT KALABURAGI IN
SPL. CASE (POCSO) NO.39/2015 DATED 28.10.2017 IN SO FAR
AS CONVICTING APPELLANT/ACCUSED NO.1 HERIEN FOR THE
OFFENCES PUNISHABLE U/SEC.12 OF POCSO ACT AND
U/SEC.509 OF IPC AND ACQUIT THE APPELLANT OF THE
ABOVE SAID OFFENCES.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 374(2) of Cr.P.C. is filed
by the accused No.1 with a prayer to set aside the
judgment and order of conviction and sentence passed by
II Addl. Sessions Judge, Kalaburagi in Special
Case(POCSO) No.39/2015 dated 28.10.2017, convicting
the appellant for offences punishable under Section 509 of
IPC and Section 12 of POCSO Act,2012.
2. Heard learned counsel for the appellant and
learned High Court Government Pleader for respondent
No.1. Respondent No.2 though served in the matter has
remained unrepresented before this Court.
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3. Facts leading to filing of this criminal appeal as
revealed from the records are briefly narrated below:
F.I.R. was registered against the accused and three
other persons in Crime No. 102/2015 by Madbool Police
Station, Kalaburagi for offences punishable under Sections
509, 323, 504, 354 read with 34 of IPC and Section
3(1)(10) of SC/ST (Prevention of Atrocities) Act, 1989 on
the basis of the first information received from
Smt.Suvarna (PW-1). The police after investigation had
filed a charge sheet against the accused for the offences
punishable under Sections 323, 504, 509, 354 read with
Section 34 of IPC and Section 3(i)(x)(xi) of SC/ST (PA)
Act, 1989 and Section 12 of POCSO Act, 2012. The
appellant was arrayed as accused No.1 in the charge
sheet. The accused denied the charges that were framed
and read over to them by the Trial Court and claimed to be
tried. The prosecution in order to prove its charges
against the accused examined 11 charge sheet witnesses
as PW-1 to 11 and got marked 9 documents as Ex.P-1 to
P9. Thereafter, the Trial Court recorded the statement of
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accused under Section 313 of Cr.P.C. However, the
accused did not choose to lead any defence evidence. The
Trial Court after hearing the arguments addressed by both
the sides, vide impugned judgment and order dated
28.10.2017 convicted the appellant/accused No.1 for
offences punishable Section 509 IPC and Section 12 of
POCSO Act. For the offence punishable under Section 509
of IPC, the appellant is sentenced to undergo simple
imprisonment for a period of one month and pay a fine of
Rs.1,000/- and in default to pay fine to undergo simple
imprisonment for five days and for the offence punishable
under Section 12 of POCSO Act, appellant is sentenced to
undergo simple imprisonment for a period of three months
and pay a fine of Rs.1,000/-, in default to pay fine to
undergo simple imprisonment for a period of 15 days.
Being aggrieved by the same, the appellant is before this
Court.
4. Learned counsel for the appellant submits that
the prosecution has filed to prove its charges against the
accused beyond reasonable doubt. PW-1 and PW-2 have
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not supported the case of the prosecution and they have
not made any allegation against the appellant. In spite of
the same, the Trial Court has erred in convicting the
appellant for the alleged offences. He submits that the
age of PW-2, who is allegedly a minor has not been proved
by the prosecution in accordance with law and therefore,
the Court below has erred in convicting the appellant for
the offence punishable under Section 12 of POCSO Act,
2012.
5. Per contra, learned High Court Government
Pleader has argued in support of the impugned judgment
and order of conviction and sentence and has prayed to
dismiss the appeal. She submits that the charges framed
against the accused has been proved by oral and
documentary evidence by the prosecution and there is no
error or irregularity in the impugned judgment passed by
the Trial Court. Accordingly, she prays to dismiss the
appeal.
6. The prosecution in order to prove its charges
against the accused had examined PW-1 to PW-11 before
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the Trial Court. PW-1 is the first informant, who set the
criminal law in motion, PW-2 is the alleged minor, PW-3 to
5 are stated to be the eyewitnesses to the incident, PW-6
is the Assistant Engineer, who had drawn sketch of the
spot, PW.7 is the Medical Officer, who had examined PW-
1, PW-8 is the Principal of the Government PU college,
PW-9 is the Panch witness to Ex.P-7, Spot Panchanama,
PW-10 and PW-11 are the investigating officers in the
present case. Ex.P-1 is the complaint, Ex.P-2 and 3 are
the portion of statement of PW-4 and 5, Ex.P-4 is the
Sketch Map, Ex.P-5 is the Medical Certificate, Ex.P-6 is the
endorsement issued by the School Authorities mentioning
the date of birth of PW-2, Ex.P-7 is the Spot Panchanama,
Ex.P-8 is the Caste Certificate of PW-1 and Ex.P-9 is the
FIR.
7. PW-1 and 2 are the alleged victims of the
sexual harassment in the present case. In Ex.P-1, the first
informant has averred that accused No.1/appellant was in
the habit of eve-teasing her minor daughter (PW-2) and
was making signs and gestures to PW-2, which was
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objected by PW-1. On 16.08.2015, when PW-1 and PW-2
were inside their house, the accused No.1 came near her
house and started making signs and gestures to PW-2 and
when she scolded him, he ran away. Thereafter, on the
same day, he came along with accused Nos.2 to 4 and
started abusing PW-1 referring to her caste. When the
same was objected, accused dragged PW-1 out of the
house and slapped her on her face and other body parts.
When PW-2 to 3 tried to interfere, the accused persons
threatened them and thereafter left the place.
8. PW-1 and 2 are therefore the prime witnesses
in the present case. PW-1 and 2 have not supported the
prosecution case during the course of their cross
examination. PW-1 and 2 have stated that on the alleged
date of incident, about 4 to 5 ladies came near their house
and had quarreled. Since, it was dark, they could not
identify them. PW-1 and 2 have categorically stated that
no male was present at the spot on the alleged date of
incident. The Trial Court has failed to appreciate this
aspect of the matter. PW-3 also has stated the same
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during the course of her cross examination. PW-4 and 5
also have not supported the case of the prosecution and
they have been treated as hostile witnesses. In the cross
examination of these witnesses by the Public Prosecutor,
nothing has been elicited from the mouth of these
witnesses. Therefore, the prosecution has failed to prove
the charges made against the appellant. None of the
victims or other independent witnesses have made any
allegations as against the appellant herein. In spite of the
same, the Trial Court has proceeded to convict the
appellant for the offences punishable under Section 509 of
IPC and Section 12 of POCSO Act, 2012.
9. According to the prosecution, PW-2 was a minor
as on the date of the incident. Therefore, charges were
framed against the accused for the offence punishable
under Section 12 of POCSO Act,2012. Unless, the
prosecution proves that the victim(PW-2) was a minor as
on the date of incident, the accused cannot be convicted
for the offence punishable under POCSO Act. To prove the
age of the accused, the prosecution has placed reliance on
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the evidence of the Principal of the school authority, based
on the school register stating that the victim girl was born
on 01.10.1999.
10. The Hon'ble Supreme Court in the case of
P.Yuvaprakash vs. State represented by Inspector of
Police1 has observed that in order to prove the age of the
victim under the POCSO Act, the prosecution has to place
on record the birth certificate of the victim or the marks
card or any other authenticated document issued by the
Secondary Education Board or any other competent
authority and the transfer certificate or endorsement
issued by the school authority based on the registry
maintained by them, cannot be taken into consideration to
prove the age of the victim. The Hon'ble Supreme Court
in the case of P.Yuvaprakash(Supra) has also observed
that in case, any of such documents are not available, the
prosecution is required to produce ossification test
certificate from the competent authority. In the present
2023 SCC Online SC 846
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case, the victim was studying in PUC and therefore, for the
purpose of proving the age of the victim, SSLC marks card
issued by the Board of Secondary Education or the birth
certificate issued by the competent authority would have
been the best evidence. However, the prosecution has
failed to produce the said documents and on the other
hand, has placed reliance on the endorsement issued by
the school authority, which is based on the registry
maintained by the school. Under the circumstances, it
cannot be stated that the age of PW-2 was proved by the
prosecution in accordance with law. The Trial Court
however, has placed reliance on the evidence placed on
record by the prosecution and has held that the victim PW-
2 was a minor as on the date of accident. For the forgoing
reasons, I am of the considered view that the Trial Court
was not at all justified in convicting the appellant for the
offence punishable under Section 509 of IPC and Section
12 of POCSO Act,2012. Therefore, the judgment and
order of conviction, which is impugned in this appeal
cannot be sustained. Accordingly, I pass the following:
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ORDER
a) The appeal is allowed.
b) The judgment and order of
conviction and sentence passed by
II Addl. Sessions Judge, Kalaburagi
in Special Case No.39/2015 dated
28.10.2017 convicting the
appellant/accused N0.1 for offence
punishable under Section 509 of IPC
and Section 12 of POCSO Act, 2012
is set aside.
c) The appellant/accused No.1 is
acquitted for the aforesaid offences
and his bail bond, if any stands
cancelled.
Sd/-
JUDGE
NJ
