Karnataka High Court
Sri Ramesha vs State Of Karnataka on 12 November, 2024
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 1164 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1164 OF 2018 (C)
BETWEEN:
SRI RAMESHA
AGED ABOUT 32 YEARS
S/O JAYANNA
R/A NO.82, 4TH CR BLOCK
DODDABOMMASANDRA
VIDYARANYAPURA
BENGALURU-560 004.
...APPELLANT
(BY SRI K B MONESH KUMAR - ADVOCATE)
AND:
Digitally signed
by SUMATHY STATE OF KARNATAKA
KANNAN
Location: High
BY VIDYARANYAPURA POLICE
Court of REPRESENTED BY
Karnataka STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE - SPP-II)
THIS CRL.A. FILED UNDER SECTION 374(2) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 06.04.2018 PASSED BY THE
LXX-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE, BENGALURU IN S.C.NO.702/2015 FOR THE
ALLEGED OFFENCE PUNISHABLE UNDER SECTION 366A R/W
363, 344, 506, 376(2)(i)(n) OF INDIAN PENAL CODE AND
SECTION 6 OF POCSO ACT, CONSEQUENTLY, THE APPELLENT
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CRL.A No. 1164 of 2018
MAY BE ACQUIT FROM THE CHARGE AND HE MAY BE SET AT
LIBERTY.
THIS CRL.A., COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
AND
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K)
This appeal by the convicted accused, is directed
against the judgment of conviction and order of sentence
dated 06.04.2018 in S.C.No.702/2015 passed by Court the
LXXI Addl. City Civil & Sessions Judge and Special Judge,
Bengaluru City, whereby the learned Sessions Judge has
convicted the accused for the offences punishable under
Section 6 of the POCSO Act and Sections 366-A r/w
Sections 363, 344, 506 and 376(2)(i)(n) of IPC and
sentenced him to undergo imprisonment for life and to pay
a fine of Rs.60,000/-, in default of payment of fine, he
shall undergo simple imprisonment for a period of 2 years
for the offence punishable under Section 376(2)(i)(n) of
the IPC and sentenced him to undergo simple
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imprisonment for a period of 3 years and to pay fine of
Rs.3,000/-, in default of payment of fine, he shall undergo
simple imprisonment for a period of 3 months for the
offence punishable under Section 366-A r/w Section 363
IPC so also to undergo simple imprisonment for a period of
one year and to pay fine of Rs.1,000/- for the offence
punishable under Section 344 of IPC. Further, he is
directed to undergo simple imprisonment for a period of 2
years for the offence punishable under Section 506 of IPC.
2. The factual matrix of the prosecution of the case in
brief is as follows:
The victim in the instant case i.e., PW-5 belongs to
Adi Karnataka Caste, who was studying in IX Standard at
the time of the incident. On 19.02.2015, at about 8:30
a.m., the victim left for School along with her brother.
However, they did not return home. Despite searching for
them, the family members failed to find them. Further, on
19.03.2015 i.e., after a lapse of one month, they both
returned home. Upon enquiry, the victim reported to her
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mother-PW-6 that on 19.02.2015 at about 4:45 p.m.,
while she was returning from School along with her
brother, as they approached a vegetable store near
Doddabommasandra, the accused forcefully stopped them
and insisted on talking with her. Further, he threatened
her saying if they failed to accompany him, he would kill
them along with her family members. Saying so, accused
abducted them and following which they were taken to the
Majestic Bus-stand and boarded a bus to Dharmasthala
and then to Nandagudi village, Hosakote. Here the
accused confined them in the house of one
Narayanaswamy / PW-12 and they were constantly under
life threat. It is further stated in case of prosecution that,
the accused illegally retained them in the said house and
raped the victim. After a span of 20 days she managed to
escape from the confinement and returned home on
19.03.2015. Subsequently, her mother, i.e. PW-6 lodged
a complaint against the accused as per Exhibit P-7 before
the respondent-Police and the same was registered
against the accused in Cr.No.126/2015 dated 20.03.2015
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for offences punishable under Sections 344, 363, 376, 506
of IPC, Sections 6, 5(L) of the POCSO Act, 2012 and also
for the offence punishable under Section 3(2)(v) of the
Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989.
3. Subsequently, the respondent / police conducted
an investigation following which the victim was made to
appear before the Jurisdictional Magistrate and her
statement was recorded under Section 164 Cr.P.C. on
28.03.2015. Meanwhile the accused was arrested on
21.03.2015. Further, the Investigating Officer drew the
relevant mahazars and got the victim examined before the
Doctor / PW-4. After obtaining necessary documents from
the concerned authorities, CW-22 laid the charge-sheet
against the accused before the Special Court for the afore-
mentioned offences.
4. Further, on securing the presence of the
accused, the learned Special Judge framed the charges
against the accused for the offences punishable under
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Section 6 of the POCSO Act and Sections 366-A read with
Sections 363, 344, 506, 376(2)(i)(n) of IPC inclusive of
offence punishable under Section 3(2)(v) of the Scheduled
Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989 and the same was read verbatim to the accused.
However, the accused denied the charges and claimed to
be tried.
5. In order to bring home the guilt of the accused
for the charges leveled against him, the prosecution
examined in total 15 witnesses as PW-1 to PW-15 so also
got marked 19 documents as Exhibits P1 to P19. The
prosecution also identified 8 material objects as MO-1 to
MO-8. Following the completion of the prosecution
evidence, the learned Sessions Judge read over the
incriminating evidence of the material witnesses to the
accused as stipulated under the provisions of Section 313
of Cr.P.C. However, the accused denied the same. The
accused neither examined any witnesses on his behalf nor
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marked any documents. The defence of the accused is
one of total denial and that of false implication.
6. After assessment of oral as well as
documentary evidence placed before it, the learned
Sessions Judge convicted the accused for offences
punishable under Section 6 of the POCSO Act and Section
366-A read with Sections 363, 344, 506, 376(2)(i)(n) of
IPC and sentenced him as enumerated supra. However,
the special Court has acquitted the accused for offence
punishable under Section 3(2)(v) of the Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
The said judgment is challenged in this appeal.
7. We have heard the submissions of the learned
counsel Sri K.B. Monesh Kumar for the appellant and
Sri Vijayakumar Majage SPP-II for the respondent / State.
Further, perused the Trial Court Records.
8. It is the primary contention of the learned
counsel for the appellant that the judgment under this
appeal suffers from perversity and illegality, in as much as
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the learned Sessions Judge has failed to appreciate the
evidence of the victim and other material witnesses in the
right perspective; the learned Sessions Judge has
convicted the accused based on surmises and conjectures
and as such, the same is liable to be set aside. He further
contended that the evidence of PW-5 / victim does not
instill any confidence in the case of the prosecution. There
is an inordinate delay in lodging the complaint. According
to PW-5, the incident occurred on 19.02.2015 and the
complaint lodged by PW-6 is on 19.03.2015, i.e. after a
lapse of one month. Even after securing the victim on
19.03.2015 there was a delay in recording her 164
statement before the Magistrate and the same was
recorded on 28.03.2015. The counsel further contended
that, on perusal of Section 164 of statement of the victim
as per Exhibit P-5, she has categorically stated that on her
free will and consent, she accompanied the accused from
Doddabommasandra to the Majestic bus-stand and from
there to Dharmasthala and then to Nandagudi village,
Hosakote. Here they stayed together for a period of one
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month. The victim did not divulge the same to any person
including the owner of the house. Hence, her testimony
cannot be relied as gospel of truth to convict the accused.
The learned counsel contended that the evidence of PW-6
and PW-7, i.e. the parents of the victim cannot be relied
upon, for the reason that, they have failed to lodge any
complaint for a period of one month following the return of
their daughter / PW-5. Further, the Doctor who examined
the victim categorically opined that the victim was sexually
active. Additionally prosecution has failed to prove the
age of the victim that she was a minor at the time of the
incident. The prosecution relied on the age proof of the
victim without any authenticated corroborative documents
like the Birth Certificate or Marks Card. Accordingly, the
learned counsel for the appellant prays to allow the
appeal.
9. Per contra, the learned SPP Sri Vijayakumar
Majage submitted that the judgment under this appeal
does not suffer from any perversity or illegality, as the
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learned Sessions Judge, after meticulously examining the
oral and documentary evidence, has recorded the findings
which are sound and reasonable having regard to the
evidence on record. According to the learned SPP-II, the
prosecution has successfully proved the age of the victim
that she was a minor at the time of incident by producing
Exhibit P2-school certificate. Also the evidence of PW-3
i.e., the head master of the school is the author of exhibit
P-2. Further PW-4 / Doctor, stated confirming that the
victim was aged about 14 to 16 years at the time of the
incident.
10. The learned SPP-II further contended that, in
the evidence of PW-5, the victim girl deposed that on the
date of incident the accused forcibly took her, initially to
Majestic, from there to Dharmasthala and then to
Nandagudi village, Hosakote, where he forcibly confined
her in the house of PW-12 for a period of one month
where the accused had sexual intercourse with her. The
evidence of PW-5/victim girl corroborates with the
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evidence of PWs-6 and 7 who are the parents of the
victim. Further, the Medical Report issued by PW-4/Doctor
as per Exhibit P-3 confirms that, the victim is sexually
active. Hence, the learned SPP-II contends that the
Sessions Court has rightly held that the prosecution has
successfully proved the offences punishable under Section
6 of the POCSO Act and Section 366-A read with Sections
363, 344, 506, 376(2)(i)(n) of IPC and has rightly
convicted the accused. Hence, the judgment under this
appeal does not call for any interference by this court.
11. Having heard the learned counsel for the
appellant and the learned SPP-II for the State, the only
point that would arise for our consideration is:
"Whether the impugned judgment of
conviction and order of sentence suffers from
any perversity or illegality warranting
interference by this Court?"
12. We have bestowed our anxious consideration to
the submissions made by the learned counsel appearing
on both sides so also the evidence available on record. On
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a careful perusal of the same, in order to prove the
charges leveled against the accused, the prosecution has
mainly relied on the evidence of PW-5, the victim so also
her parents PW-6 and PW-7. On cursory glance of the
evidence of PW-5, she has categorically deposed that on
19.02.2015 at about 4.45 p.m. when she reached
Doddabommasandra from the school bus, the accused who
was near a vegetable store grabbed her and her brother
and threatened to accompany him. Accordingly, he
forcibly took them by an auto rickshaw to Majestic and
from there boarded a bus to Dharmasthala. Thereafter,
the accused took them to Nandagudi at Hosakote confining
her and her brother in the house owned by one
Narayanaswamy / PW-12 for a period of 20 days. She
also deposed that during that time, the Accused had
sexual intercourse with her against her will. It is further
stated in her evidence that later she and her brother
managed to escape from the said house and joined their
parents. Accordingly, her mother lodged the complaint
before the police and the police have taken her to the
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Doctor for a medical examination. This evidence of PW-5
is supported by PW-6 and PW-7, her parents. PW-6, the
mother of the victim girl, reiterated the contents of her
complaint as per Exhibit P7. PW-7 also deposed similarly
about the act committed by the accused. The evidence of
the victim and PW-6 and PW-7 if corroborated with the
evidence of the Doctor who conducted medical
examination of the victim along with the medical report as
per Exhibit P3, in our considered view, the prosecution has
proved the alleged sexual assault committed by the
accused on PW-5/victim. Though it is argued by the
learned counsel for the appellant that the victim in her
statement recorded under Section 164 of CrPC by the
Magistrate, has admitted that she voluntarily accompanied
the accused on 19.02.2015 and thereby went to
Dharmasthala and subsequently to Nandagudi village,
Hosakote and got married. However, the said argument
advanced by the learned counsel for the appellant is not
sustainable for the reason that, the prosecution has
successfully proved that the victim was a minor as on the
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date of the incident by placing Exhibit P2, age certificate
issued by PW-3, the Headmaster of the school in which
she studied. As per Exhibit P2 age of the victim as on date
of the incident was 13 years 7 months and 10 days.
Though the said document was not supported by any
authenticated documents like the Birth Certificate or the
SSLC marks card, in the same time, the veracity of Exhibit
P2 is not seriously disputed by the learned defence counsel
before the Trial Court. Nevertheless, the Doctor / PW-4
who examined the victim categorically stated that the age
of the victim was 14 to 16 years. In such circumstances
without any such reliable evidence by the accused, we are
constrained to hold that the prosecution proved that the
victim was a minor at the time of the alleged incident.
13. Apart from the above evidence, the prosecution
also relied on the evidence of PW-9 & PW-13 / the Police
Inspectors, who have investigated the matter. Both these
witnesses categorically deposed about the investigation
carried out by them by drawing relevant mahazars,
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recording of the statement of victim under Section 164 of
Cr.P.C. so also obtaining the medical report. Hence, on an
overall examination of the entire evidence on record, we
are of the considered view that the prosecution has proved
the charges leveled against the accused for the offence
punishable under Section 6 of the POCSO Act and also
Sections 366-A read with Sections 363, 344, 506,
376(2)(i)(n) of IPC. Hence, the learned Sessions Judge
has rightly convicted the accused for the charges leveled
against him.
14. The learned counsel for the appellant
alternatively contended that, the Sessions Court imposed
maximum sentence for the offence punishable under
Section 376(2)(i)(n) of IPC and Section 6 of the
(unamended) POCSO Act, 2012 and the same may be
modified by imposing the minimum sentence of 10 years
instead of life imprisonment, by considering the peculiar
facts and circumstances of the case so also by considering
the age of the accused i.e., 32 years at the time of
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incident and also his incarceration period in the custody
i.e. 09 Years, 07 months 10 days. On perusal of
Section 376(2)(i)(n) of IPC, the minimum punishment
prescribed is imprisonment shall not be less than 10 years,
however, may extent to life imprisonment. Even under
Section 6 of POCSO Act (unamended) the minimum
sentence imposed is 10 years rigorous imprisonment and
maximum up to imprisonment for life. In the case on
hand, in view of the fact that the offences were committed
in the year 2015, therefore the (unamended) provision of
Section 06 of POCSO Act is attracted in this case.
Admittedly, the accused has already undergone
imprisonment for a period of 9 years 7 months and 23
days. The Hon'ble Apex Court in the case of STATE OF
U.P. vs. SONU KUSHWAHA (Crl.A.1633/2023), while
confirming the conviction for the offences punishable
under Sections 377 and 506 of IPC inclusive of offences
under Section 5 r/w Section 6 of the POCSO Act, reduced
the sentence of the appellant to undergo rigorous
imprisonment for a period of 10 years by modifying the
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sentence from 20 years. Further, it is rightly stated by
learned counsel for the appellant that he was aged above
32 years at the time of incident. Hence, by considering the
peculiar facts and circumstances of the case, we are of the
view that, the sentence imposed by the learned Sessions
Judge for the offence under Section 376(2)(i)(n) of IPC
and Section 6 of the (unamended) POCSO Act, 2012
requires to be modified by confirming the judgment of
conviction. Accordingly, we answer the point raised above
partly in the affirmative and proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The sentence imposed by the learned
Sessions Judge in SC No. 702/2015 dated
06.04.2018, against the accused/appellant
for the offences punishable under Sections 6
of the POCSO Act and Section 376(2)(i)(n) of
IPC is modified.
iii) The accused/appellant is sentenced to
undergo rigorous imprisonment for a period
of 10 years and to pay a fine of Rs.25,000/,
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in default of payment of fine, he shall
undergo simple imprisonment for a period of
two months for the offences punishable
under Sections 6 of the POCSO Act and
Section 376(2)(i)(n) of IPC.
iv) As far as the conviction for the offences
punishable under Sections 366-A R/w
Sections 364, 344 and 506 of IPC are kept
intact.
v) The accused is entitled to the benefit of set
off under Section 428 of Cr.P.C.
vi) All the sentence imposed to the
accused/appellant shall run concurrently.
SD/-
(K.SOMASHEKAR)
JUDGE
SD/-
(RAJESH RAI K)
JUDGE
KS
