Karnataka High Court
Kishan vs The State, Jewargi Ps on 21 November, 2024
Author: K Natarajan
Bench: K Natarajan
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NC: 2024:KHC-K:8689
CRL.P No. 201287 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO. 201287 OF 2024
(482(Cr.PC)/528(BNSS)-)
BETWEEN:
KISHAN
S/O HARILAL RATHOD,
AGED ABOUT 22 YEARS,
OCCUPATION: STUDENT,
R/O BADANIHAL TANDA, TQ. JEWARGI
DIST. KALABURAGI - 585 102.
PRESENTLY IN CENTRAL JAIL AT KALABURAGI.
...PETITIONER
Digitally signed by
VEDAVATHI A K (BY SRI. ARUNA P. CHAVAN, ADVOCATE)
Location: High
Court of Karnataka
AND:
1. THE STATE, JEWARGI PS,
TALUK AND DISTRICT KALABURAGI NOW,
ADDL. SPP, HIGH COURT BUILDING,
KALABURAGI - 585 103.
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CRL.P No. 201287 of 2024
2. MAHADEVA
S/O CHANDU CHAVAN,
AGED ABOUT 44 YEARS,
OCCUPATION: COOLIE,
R/O GUDUR VILLAGE,
TQ. JEWARGI DIST KALABURAGI - 585 310.
...RESPONDENTS
(BY SMT. ANITHA REDDY, HCGP)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. (OLD), U/SEC.
528 OF BNSS (NEW), PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 05.09.2024 PASSED BY THE HONOURABLE
ADDL. SESSIONS JUDGE FTSC-1 POCSO AT KALABURGI IN SPL
(P) 24/2022 ANNEXURE-C FOR THE OFFENCES PUNISHABLE
U/SS 363, 376(3), (2), (n), 343, 354(D), 506, 509, R/W
SECTION 34 OF INDIAN PENAL CODE AND UNDER SECTION 4,
6, 12 AND 17 OF POCSO ACT 2012 CR.NO. 0238/2021
JEWARGI PS AND IN THE INTEREST OF JUSTICE AND ISSUE
DIRECTIONS TO SEND TO EXPERTS FOR OPINION THE
ADMITTED DOCUMENTS EX-P 41 VIDEO STATEMENT OF THE
VICTIM AS WELL AS THE SPECIMEN HANDWRITING FOR
COMPARISON WITH DISPUTED DOCUMENTS EX D17 AND D-19
FOR THE REASONS STATED ABOVE AND IN THE INTEREST OF
JUSTICE AND NO PREJUDICE WILL BE CAUSED TO THE OTHER
SIDE, BUT IF NOT ALLOWED THE ACCUSED WILL BE PUT TO
GREAT HARDSHIP AND WHICH CANNOT BE COMPENSATED IN
ANY OTHER TERMS.
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CRL.P No. 201287 of 2024
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN)
This petition is filed by the petitioner/accused under
Section 482 of Cr.P.C. for quashing the order dated
05.09.2024 passed by the Addl. Sessions Judge, FTSC-1,
POCSO At Kalaburagi in Spl(P) 24/20222 for the offence
punishable under Sections 363, 376(3), (2), (n), 343, 354(D),
506, 509, R/W section 34 of IPC and under sections 4, 6, 12
and 17 of POCSO Act 2012 in Crime No.0238/2021 by Jewargi
Police station, on the application filed by the petitioner under
Section 45 of Indian evidence Act, 1872.
2. Heard the arguments of learned counsel for the
petitioner and learned HCGP for the State.
3. The case of the prosecution is that the police have
filed the charge sheet against this petitioner and others for the
offence punishable for the aforementioned sections. The
petitioner accused denied the charges and the prosecution said
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to be examined the witnesses. During the cross examination
the defense taken by the petitioner that there was marriage
talk between both the families and they are relatives. In the
childhood they had decided the marriage of the petitioner and
the victim girl after they attaining the age of majority. When
the marriage talks were going on, it came to the knowledge of
the family of the victim that the petitioner is suffering from
Hemophilia disease. Therefore, the family of the victim were
reluctant to get victim married to petitioner. The petitioner
also requested. However, the victim girl and petitioner/accused
said to have decided to elope for the purpose of marriage. At
that time, the family members came to know about the offence
and filed the false complaint. It is submitted that the victim
returned some love letters and also video clippings recorded by
the sister of the accused, where the victim herself spoken with
the accused. These documents were produced and marked. In
the cross examination of the victim, she denied the love letter
and audio clippings in her voice. Therefore, it is necessary for
the accused to prove the same by sending the video clippings
and handwriting of the victim in the alleged love letter through
the handwriting expert. Hence, interlocutory application filed
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under Section 45 of the Evidence Act, came to be dismissed.
Hence, petitioner is before this court.
4. Learned counsel for the petitioner has contended that
the age of the victim is more than 18 years and she is only 1
years younger than the accused, who is 19 years and the victim
is aged 18 years. Age is proved by the prosecution. Even as
per the doctor evidence, there is no sexual assault on the
victim girl. Such being the case, it is necessary for the
petitioner to refer the pen drive as well as the love letter to FSL
for getting expert opinion. Therefore, prayed for allowing the
petition.
5. Per contra, learned HCGP objected the petition.,
6. Having heard the arguments and perused the records.
On perusal of the same, the FIR came to be registered only for
the offence punishable under Section 363 of IPC for kidnapping
or abduction and the age of the victim was stated that she is
minor girl aged about 14 years in the FIR. In order to prove
the age, the police also produced some transfer certificate from
the school as well as admission register extract, to show she is
minor. The petitioner though contended she is major and more
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than 18 years of age, but he has not produced any documents.
As regards to the determination of the age of the victim, the
special court is empowered under Section 34 of the POCSO Act,
for determination of the age of the victim, whether she is
minor or more than 18 years and is considered as major.
Therefore, until giving finding by the Trial Court, the contention
of the petitioner counsel cannot be acceptable that the age is
not proved. The only contention of the petitioner is that, the
accused is suffering form Hemophilia and the same came to the
knowledge of victim girl. Therefore, they stopped their
marriage. However, the victim and the accused were trying to
marry each other by eloping from the home. However, before
going she was stopped. The case of the prosecution otherwise
that the accused said to be abducted and said to be committed
sexual assault repeatedly. In view of the provision of section
376(2)(n) of IPC, it is a repeated sexual assault on the victim
as per the definition. Though the learned counsel for the
petitioner submits there is no medical evidence to be
considered by the Trial Court. After hearing the arguments,
now that the State Public Prosecutor already argued the
matter, learned counsel for the defense also partly argued the
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matter and is left with further hearing and post the matter for
judgment by the Trial Court.
7. Though the petitioner has stated and produced some
love letter alleged to be sent by the victim, there is video
clipping. Even it is well settled by the Hon'ble Supreme Court
and as per the section 375 of the IPC, even if the consent is
given by the victim girl, if she is minor her consent is
immaterial either for the purpose of commission of sexual
assault or under Section 363 of IPC, abduction. Even if the
victim goes with the accused with consent, here consent is
immaterial as she is a minor. Therefore, the offence under
Section 363 of IPC would attract for the abduction. Apart from
that, there is 366(a) of IPC for which charge sheet is filed, for
the abduction of the minor girl and compelling her marriage.
Such being the case, whether the defense taken by the
petitioner, it has to be urged in the trial and when the victim is
minor, there is no need to prove that the love letter is sent by
her and she has spoken with the accused in the video clipping
that she has given consent for eloping, that is immaterial.
Such being the case, I am of the view, the Trial Court rightly
considered the application and dismissed the application under
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Section 45 of Indian Evidence Act. It is also seen from the
records, the Trial Court given opportunity to the accused to
lead defense evidence and they have examined two witnesses
as DW1 and DW2. Such being the case, it cannot be said,
there is no opportunity given to the accused for proving the
defense. The Trial Court given opportunity for leading defense
evidence. Such being the case, I am of the view, the petition is
devoid merits and liable to be dismissed.
Accordingly, this petition is hereby dismissed.
The Trial Court shall pass the judgment without influence
of the observation made by this court.
Sd/-
(K NATARAJAN)
JUDGE
AKV
CT:SK
