Karnataka High Court

Papayya S/O Ratnayya Tallari vs State Of Karnataka on 5 June, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

                                       -1-
                                              NC: 2024:KHC-K:3627
                                              CRL.A No. 200006 of 2019




                        IN THE HIGH COURT OF KARNATAKA,
                               KALABURAGI BENCH
                      DATED THIS THE 5TH DAY OF JUNE, 2024
                                    BEFORE
                THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
                    CRIMINAL APPEAL NO. 200006 OF 2019 (374)
             BETWEEN:

                PAPAYYA
                S/O RATNAYYA TALLARI
                AGE: 25 YEARS,
                OCC:DRIVER OF WATER TANK
                AT HYDERABAD
                R/O. JILWARSHA VILLAGE,
                TQ:CHINCHOLI,
                DIST:KALABURAGI.

                                                          ...APPELLANT
             (BY SRI SANTOSH PATIL, ADVOCATE)

             AND:

                STATE OF KARNATAKA,
Digitally       THROUGH KUNCHAWARAM
signed by
SHILPA R        POLICE STATION
TENIHALLI
Location:
                TQ: CHINCHOLI,
HIGH COURT
OF
                DIST: KALABURAGI
KARNATAKA       REP.BY ADDL. SPP
                HIGH COURT OF KARNATAKA,
                KALABURAGI BENCH - 585 103.

                                                        ...RESPONDENT
             (BY SMT. ANITA M. REDDY, HCGP)

                  THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
             ALLOW THIS APPEAL AND TO SET ASIDE IMPUGNED
             JUDGMENT AND THE ORDER OF CONVICTION AND SENTENCE
             DATED 09.11.2018 CONVICTING THE ACCUSED FOR THE
             OFFENCE PUNISHABLE U/S 341, 354 (A), 506 OF IPC AND U/S
                            -2-
                                 NC: 2024:KHC-K:3627
                                 CRL.A No. 200006 of 2019




8 OF POCSO ACT AND THE APPELLANT HAS BEEN SENTENCED
FOR THE OFFENCE PUNISHABLE U/S 341 OF IPC FOR A PERIOD
OF 1 MONTH SIMPLE IMPRISONMENT AND TO PAY FINE OF
RS.500/- IN DEFAULT TO PAY THE FINE HE SHALL UNDERGO
FURTHER SIMPLE IMPRISONMENT FOR A PERIOD OF 7 DAYS.
FURTHER THE APPELLANT HAS BEEN SENTENCED FOR THE
OFFENCE PUNISHABLE U/S 354 (A) OF IPC TO UNDERGO
SIMPLE IMPRISONMENT FOR 02 YEARS AND FINE OF RS.
50,000/- AND IN DEFAULT TO PAY THE FINE HE SHALL
UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A PERIOD OF
6 MONTHS. FURTHER THE APPELLANT IS SENTENCED FOR THE
OFFENCE PUNISHABLE U/S 506 OF IPC TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF 3 YEARS AND TO PAY A
FINE OF RS. 50,OOO/- AND IN DEFAULT HE SHALL UNDERGO
FURTHER SIMPLE IMPRISONMENT FOR A PERIOD OF 6
MONTHS. FURTHER THE APPELLANT IS SENTENCED FOR THE
OFFENCE PUNISHABLE U/S 8 OF POCSO ACT FOR A PERIOD OF
5 YEARS RIGOROUS IMPRISONMENT ALONG WITH FINE OF
RS.1,00,000/- AND IN DEFAULT TO PAY FINE HE SHALL
UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A PERIOD OF
1 YEAR BY THE LEARNED II ADDL. SESSIONS JUDGE AT
KALABURAGI IN SPECIAL CASE (POCSO) NO: 55/2017.

     THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        ORDER

This appeal under Section 374(2) of Cr.P.C is filed

with a prayer to set aside the judgment and order of

conviction and sentence passed by the Court of II Addl.

Sessions Judge, Kalaburagi in Special Case (POCSO)

No.55/2017 dated 09.11.2018.

2. Heard learned counsel for both parties.

NC: 2024:KHC-K:3627

3. The accused/appellant herein was charge

sheeted for offences punishable under Section 341, 354-A,

506 of IPC and Section 7 and 8 of POCSO Act, 2012. The

allegation against the accused/appellant is that on

03.10.2017 at about 9:15 a.m., when minor girls CW-1

and CW-2 were on their way to Kunchawaram High

School, where they were studying, the accused who came

in a bike restrained them unlawfully and asked CW-2 to go

away. CW-2 thereafter, walked away and stood at

distance. The accused thereafter, got down from his bike

and came near CW-1 and asked her, as to why she was

not attending his phone calls and then, the

accused/appellant also allegedly informed CW-1 that he

was in love with her and if, she agrees he was ready to

marry her and live with her. When CW-1 resisted his act,

the accused/appellant allegedly caught hold of her hand

and tried to pull her into an agricultural filed. When, CW-1

raised a cry, CW-3 came there and scolded the accused

and sent him away. Thereafter, CW-1 and 2 went to their

school and attended their examination and CW-1,

NC: 2024:KHC-K:3627

subsequently, approached Kunchawarm Police Station,

Kalaburagi along with her mother. Based on the first

information of PW-1, an FIR came to be registered in

Crime No.67/2017 against the petitioner and he was

arrested during the course of investigation on 06.10.2017.

4. The Police after investigation filed charge

sheet against the appellant/accused for the aforesaid

offences. The Trial Court had framed charges against the

accused and had read over the same to him. The accused

having denied the same, had claimed to be tried. The

prosecution in order to prove its case had examined 7

witnesses before the Trial Court as PW-1 to PW-7 and got

marked 7 documents as Ex.P-1 to Ex.P-7. Thereafter, the

statement of the accused/appellant was recorded by the

Trial Court under Section 313 of Cr.P.C. However, no

defense evidence was lead on behalf of the accused nor

any document was marked in support of his defense. The

Trial Court heard the arguments addressed by both the

parties and vide judgment and order dated 09.11.2018

convicted and sentenced the accused for offences

NC: 2024:KHC-K:3627

punishable under Sections 341, 354-A, 506 of IPC and

Section 8 of POCSO Act,2012. For the offence punishable

under Section 341 of IPC the accused was sentenced to

undergo simple imprisonment for a period of 1 month and

pay a fine of Rs.500/-, in default of payment, he was

directed to undergo simple imprisonment for further 7

days, for the offence punishable under Section 354-A of

IPC the accused was sentenced to undergo simple

imprisonment for a period of 2 years and pay a fine of

Rs.50,000/-, in default of payment, he was directed to

undergo simple imprisonment for further 6 months, for the

offence punishable under Section 506 of IPC the accused

was sentenced to undergo simple imprisonment for a

period of 3 years and pay a fine of Rs.50,000/-, in default

of payment, he was directed to undergo simple

imprisonment for a further period of 6 months and for the

offence punishable under Section 8 of POCSO Act,2012 the

accused was sentenced to undergo simple imprisonment

for a period of 5 years and pay a fine of Rs.1,00,000/-, in

default of payment, he was directed to undergo simple

NC: 2024:KHC-K:3627

imprisonment for a further period of 1 year. Being

aggrieved by the judgment and order of conviction and

sentence passed by the Trial Court in Special

Case(POCSO) No.55/2017 dated 09.11.2018, the accused

is before this Court.

5. Learned counsel for the appellant/accused

having reiterated the grounds urged in the appeal

memorandum submits that the Court below was not

justified in convicting the accused for the alleged offences.

He submits that there is no material available on record to

show that the accused/appellant had committed sexual

assault on the minor victim. He submits that even if, the

allegations against the accused is presumed to be true,

there is no material available on record to show that the

act done by him was done with any sexual intent. He also

submits that the punishment imposed on the accused is

harsh. He submits that the victim as well as the accused

are now married and accordingly, prays to allow the

petition.

NC: 2024:KHC-K:3627

6. Per contra, learned High Court Government

Pleader has opposed the appeal. She submits that the

prosecution has proved its charges against the accused

beyond reasonable doubt and therefore, the Trial Court on

the basis of oral and documentary evidence available on

record has rightly convicted the accused for the alleged

offences. She submits that the impugned judgment and

order of conviction and sentence, does not suffer from any

infirmity or illegality, that may call for interference by this

Court. Accordingly, prays to dismiss the appeal.

7. The prosecution, in order to prove its charges

against the accused has examined 7 witnesses before the

Trial Court as PW-1 to PW-7 and got marked 7 documents

as Ex.P-1 to Ex.P-7. PW-1(CW-1) is the minor victim girl,

PW-2 (CW-2) is her friend, who was along with her on the

date of incident, PW-3(CW-3) is the villager, who arrived

at the spot after hearing CW-1 cry, PW-4(CW-4) is the

mother of PW-1, PW-5 is the witness to Spot Mahazer

(Ex.P-4), PW-6 is the head master of the school, in which

PW-1 and PW-2 were studying, PW-7 is the ASI of

NC: 2024:KHC-K:3627

Kunchawaram, Police Station, who investigated the case

and filed the charge sheet. Ex.P-1 is the complaint, Ex.P-

1(a) and (b) are the signatures of PW-1 and PW-7

respectively, Ex.P-2 is the photograph of the spot, Ex.P-3

is the statement of PW-1 under Section 164 of Cr.P.C.,

Ex.P-4 is the Spot Panchanama, Ex.P-4(a) and (b) are the

signatures of PW-5 and PW-7 respectively, Ex.P-5 is the

Seizer Panchanama, Ex.P-6 is the extract of the school

admission register of the victim, Ex.P-6(a) is the signature

of PW-6 and Ex.P-7 is the FIR , Ex.P-7(a) is the signature

of PW-7.

8. PW-1 during the course of her examination in

chief has reiterated the averments made by her in Ex.P-1.

She has stated that while she was on her way to school

along with PW-2, the accused restrained them and

thereafter, asked PW-2 to go away. He had grabbed her

hand and pulled her towards agricultural field stating that

he is in love with her and if she agrees, he would marry

her. At that time, allegedly PW-3 came there and after

seeing PW-1 crying, he made an enquiry and thereafter,

NC: 2024:KHC-K:3627

scolded the accused and sent him away. PW-1 has not

made any allegations either in Ex.P-1 or in her deposition

before the Trial Court that the petitioner had committed

the aforesaid act with any sexual intent. Evidence of PW-2

corroborates the evidence of PW-1. PW-3 is the villager,

who was acquainted with the family of PW-1 and even

this witness has not made any statement alleging that the

act of accused was done with any sexual intent. PW-4,

mother of PW-1 is the hearsay witness and she had

accompanied PW-1 to the Police Station, after PW-1 had

returned from the school and thereafter, had lodged the

first information based on which, the FIR was registered

against the accused. PW-5 is the witness to Spot Mahazer

Ex.P-4, his signatures are marked in the aforesaid

documents as Ex.P-4(a) and Ex.P-5(a) respectively.

9. Section 7 of the POCSO Act, 2012 reads as

follows:

"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact

- 10 -

NC: 2024:KHC-K:3627

without penetration is said to commit sexual assault."

Section 8 of the POCSO Act, 2012 provides for

punishment for sexual assault. From the material

available on record and from a perusal of the allegations

made against the accused in the charge sheet as well as in

the deposition of the witnesses, it cannot be said that the

alleged act of the accused, i.e. grabbing the hand of the

PW-1 and pulling her would amount to sexual assault

within the meaning of Section 7 of the POCSO Act, 2012.

Therefore, I am of the considered opinion that the Trial

Court was not justified in convicting the appellant/accused

for the offence punishable under Section 8 of POCSO

Act,2012.

10. The evidence of PW-1 and PW-2, if read along

with averments made in the complaint (Ex.P-1), it does

not disclose that the accused had criminally intimidated

PW-1 and PW-2. PW-3 had arrived at the spot

subsequently, and there is no allegation made that the

accused had criminally intimidated PW-3. There is

- 11 -

NC: 2024:KHC-K:3627

absolutely no material available on record, which would

attract alleged offence punishable under Section 506 of

IPC against the accused. Section 506 of IPC provides for

criminal intimidation and there is no such allegation that

the accused had threatened in any manner PW-1 , PW-2

and PW-3, who were present at the spot at the time of

incident. Therefore, I am of the considered opinion that

the Trial Court was also not justified in convicting the

accused for the offence punishable under Section 506 of

IPC.

11. Section 341 of IPC provides for punishment for

wrongful restraint. In the case in hand, the material

available on record would go to show that the accused had

obstructed PW1 and PW-2, while they were on their way to

their school, and the allegation of their wrongful restraint

is found in Ex.P-1 and the said allegation has been

reiterated by PW-1 and PW-2, during the course of their

cross examination. Nothing has been elicited from their

mouth, during the course of their cross examination by the

defence, so as to disbelieve the said allegation against the

- 12 -

NC: 2024:KHC-K:3627

accused. Therefore, I am of the considered opinion that

the Trial Court was justified in convicting the accused for

offence punishable under Section 341 of IPC and the

sentence imposed on him for the said offence is also just

and proper.

12. Section 354-A of the IPC provides for sexual

harassment and punishment for sexual harassment.

Section 354(a)(1)(i) states that if a man commits any

physical contact and advances involving unwelcome and

explicit sexual overtures, he is guilty of committing sexual

harassment. The victim is a minor girl aged about 13

years, the accused allegedly grabbed her hand and pulled

her in a public place stating that he was in love with her

and if she agrees he was ready to marry her. PW-1 and

PW-2 during the course of their deposition have made

such allegation against the accused and the said allegation

is in conformity with the averment made in Ex.P-1.

Therefore, I am of the considered opinion that the Trial

Court was also justified in convicting the accused for the

offence punishable under Section 354-A of IPC. However,

- 13 -

NC: 2024:KHC-K:3627

I am of the view that the sentence imposed by the Trial

Court for the offence punishable under Section 354-A is on

the higher side.

13. It is brought to the notice of this Court that the

minor girl (PW-1) is married and the accused/appellant

has also got married subsequently. The incident in

question is of the year 2017. The material available on

record would go to show that the accused was in custody

for a short period, after he was arrested on 06.10.2017

and he was again taken into custody after he was

convicted and sentenced by the Trial Court. Accordingly,

the following order:

ORDER

The Criminal Appeal is partly allowed.

The judgment and order of conviction and sentence

passed by the Court of II Addl. Sessions Judge, Kalaburagi

in Special Case (POCSO) No.55/2017 dated 09.11.2018 is

set aside insofar as it relates to convicting the

accused/appellant for the offences punishable under

Section 506 of IPC and Section 8 of POCSO Act, 2012.

- 14 -

NC: 2024:KHC-K:3627

The said judgment and order is confirmed insofar as

it relates to convicting the accused/appellant for the

offences punishable under Section 341 and 354-A of IPC.

The order of sentence passed by the Trial Court for the

offence punishable under Section 341 of IPC remains

unaltered.

The order of sentence passed by the Trial Court for

the offence punishable under Section 354-A of IPC is

modified and the accused/appellant is sentenced to

undergo simple imprisonment for a period of 4 months and

pay a fine of Rs.50,000/-, in default of payment, he shall

undergo further imprisonment for a period of one month.

Learned counsel for the petitioner submits that he

has already deposited a sum of Rs.50,000/- before the

Trial Court, pursuant to the order passed by this Court,

while suspending the order of sentence of

accused/appellant and if that is so, the Trial Court is

directed to disburse the said amount to PW-1 as

compensation.