Karnataka High Court

Manjunatha vs The State Of Karnataka on 22 October, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                          NC: 2024:KHC:42269
                                                     CRL.A No. 2184 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 22ND DAY OF OCTOBER, 2024

                                            BEFORE
                   THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                              CRIMINAL APPEAL No. 2184 OF 2018
                   BETWEEN:

                         MANJUNATHA
                         S/O HULUGABHOVI
                         AGED ABOUT 26 YEARS
                         R/AT HOSURU COLONY
                         HIRIYUR TALUK
                         CHITRADURGA - 577 598.

                                                                ...APPELLANT

                   (BY SRI VEERANNA G TIGADI, ADVOCATE)

                   AND:

                   1.    THE STATE OF KARNATAKA
                         BY RAMANAGARA TOWN P.S
                         REPRESENTED BY ITS
                         STATE PUBLIC PROSECUTOR
Digitally signed         HIGH COURT OF KARNATAKA
by HEMAVATHY             BANGALORE - 560 001.
GANGABYRAPPA
Location: HIGH
COURT OF           2.    SMT. LAKSHMI
KARNATAKA                W/O SRINIVAS
                         AGED ABOUT 46 YEARS
                         R/AT KAYISOPPINA BEEDI
                         RAMANAGARA TOWN
                         RAMANAGARA - 562 159.
                                                            ...RESPONDENTS

                   (BY SRI K NAGESHWARAPPA, HCGP FOR R1
                    R2 SERVED, UNREPRESENTED)
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                                       NC: 2024:KHC:42269
                                   CRL.A No. 2184 of 2018




     THIS CRL.A IS FILED UNDER SECTION 374(2) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER ON SENTENCE DATED 01.08.2018, PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA
IN SPL.C.No.45/2017, CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 366A,
376(2)(i) OF IPC AND SECTION 4 OF POCSO ACT AND ETC.,

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

CORAM:    HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

                   ORAL JUDGMENT

1. This appeal is filed against the judgment of

conviction and order on sentence dated 01.08.2018

passed in Spl.C. No. 45/2017 by I Additional District and

Sessions Judge/Special Judge, Ramanagara, convicting the

appellant - accused for offence under Section 366-A,

376(2)(i) of IPC and Section 4 of the POCSO Act and

sentencing to undergo rigorous imprisonment for 10 years

for offence punishable under Section 376(2)(i) of IPC and

rigorous imprisonment for 3 years for offence under

Section 366-A of IPC.

2. Factual matrix of the prosecution case is that

seven months prior to the incident the appellant - accused

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and victim girl - P.W.1 were known to each other. On

17.01.2017 the appellant - accused asked the victim girl

to come to the KSRTC bus stand and the victim girl came

at 04.00 pm and asked the appellant - accused why he

called her, for that the appellant - accused asked her to

come to his village. When she refused, he threatened that

he would die if she does not come. Therefore, the victim

girl boarded the KSRTC bus along with the appellant -

accused, he took her to Hosur Colony near Dindawara

Village to his house and stayed there till 26.01.2017. On

25.01.2017, at night hours, the appellant - accused

committed aggravated penetrative sexual assault upon the

victim girl even though she refused. Charge sheet came to

be filed against the appellant - accused for offence under

Section 366-A, 367(2)(i) of IPC and Section 4 of POCSO

Act. The Special Court has framed charge for the said

offence. The prosecution has examined 10 witnesses as

P.W.1 to P.W.10 and got marked Ex.P.1 to Ex.P.12 and

M.O.1 to M.O. 9. Statement of appellant - accused came to

be recorded under Section 313 of Cr.P.C. After hearing

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arguments on both sides the trial Court formulated points

for consideration and convicted the appellant - accused for

the aforesaid offences. Said judgment of conviction and

order on sentence has been challenged in this appeal.

3. Heard learned counsel for the appellant -

accused and learned HCGP for respondent - State.

4. Learned counsel for appellant - accused would

contend that the age of the victim girl has not been proved

as required under Section 34 of the POCSO Act and

Section 94 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 (hereinafter referred to as the `JJ

Act'). On that point he placed reliance on the decision of

the Hon'ble Apex Court in the case of P. Yuvaprakash

Vs. State by Inspector of Police reported in 2023

INSC 626. He contends that the author of the school

certificate - Ex.P.10 has not been examined and it has

been marked in the evidence of the Investigating

Officer - P.W.10 who is not having any personal

knowledge regarding the date of birth of the victim girl. He

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contends that the victim girl and her mother who have

been examined as P.W.1 and P.W.2 have not stated the

date of birth of the victim girl. Therefore, the prosecution

has failed to prove that the victim girl is a child as defined

under Section 2(d) of the POCSO Act. He contends that

there is no allegation against the appellant - accused in

the complaint filed by P.W.2 - mother of the victim girl

and name of one Santosh is stated in the complaint -

Ex.P.2 and who is that Santosh has not been investigated.

Even the cell number of the said Santosh has been

mentioned in the complaint. The victim girl has been

secured on 26.01.2017 and her statement has been

recorded under Section 164 of Cr.P.C. on 30.01.2017 and

there is a delay in recording the statement. The delay in

recording the statement itself indicates that the victim girl

has been tutored in the meantime. P.W.1 - victim girl has

stated in her cross-examination that she has no knowledge

of sexual intercourse or forcible sexual intercourse.

Therefore, the evidence of victim girl that appellant -

accused committed forcible sexual intercourse cannot be

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relied to attract offence alleged against the appellant -

accused. The Doctor who examined the victim girl, i.e.,

P.W.9 has not given her final opinion. The final opinion has

been kept pending till receipt of FSL report. Even after

receipt of FSL report the Investigating Officer has not

sought final opinion of the Doctor. Said FSL report has not

been marked. The Doctor gave her provisional opinion only

on the basis that hymen of the victim girl was not in-tact.

He further contended that the evidence on record is not

sufficient to convict the appellant - accused for the offence

charged against him. Without considering all these

aspects learned Special Judge has erred in convicting the

appellant - accused. With this he prayed to allow the

appeal and acquit the appellant - accused.

5. Learned HCGP has argued that the school

certificate - Ex.P.10 indicate the date of birth of the victim

girl and based on that the Special Court has rightly held

that the victim girl is a child as defined under Section 2(d)

of the POCSO Act. P.W.1 has specifically stated the acts of

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this appellant - accused taking her to his house and

threatening her and committing forcible sexual intercourse

on her. Evidence of P.W.1 has been corroborated by

evidence of P.W.2 and P.W.3. Sole evidence of P.W.1 is

sufficient to convict the appellant - accused for the offence

alleged against him. There is a presumption under

Sections 29 and 30 of the POCSO Act. He has supported

the reasoning assigned by the trial Court. On these

grounds he sought for dismissal of the appeal.

6. On the grounds made out and considering the

arguments advanced the following point arises for my

consideration:

Whether the trial Court erred in convicting the

appellant - accused for offence under Sections

366-A, 376(2)(i) of IPC and Section 4 of the

POCSO Act?

7. My answer to the above question is in the

affirmative for the following reasons:

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In order to attract offence under the POCSO Act the

prosecution has to establish that the victim girl is a child

as defined under Section 2(1)(d) of the POCSO Act. As per

Section 2(1)(d) of the POCSO Act child means any person

below the age of eighteen years. In order to ascertain

whether the prosecution has proved whether the victim

girl is a child or not, it is necessary to consider the

following provisions of law.

8. Section 34 of the POCSO Act reads as follows:

34. Procedure in case of commission of offence by child and determination of age by Special Court.-(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent

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proof that the age of a person as determined by it under sub- section (2) was not the correct age of that person."

9. In view of Section 34(1) of the POCSO Act,

Section 94 of JJ Act becomes relevant and applicable.

Therefore the same is extracted and it reads as under:

"94. Presumption and determination of age. -(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the

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concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

10. It is evident from a conjoint reading of the

above provisions that to resolve whatever dispute with

respect to the age of a person that arises in the context of

her or him being a victim under the POCSO Act, the Courts

have to take recourse to the steps indicated in Section 94

of the JJ Act. The three documents in the order of which

the JJ Act requires consideration is that the concerned

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Court has to determine the age by considering the

following documents:

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

11. Section 94 of the JJ Act clearly indicates that

the date of birth certificate from the school or the

matriculation or equivalent certificate from the concerned

examination Board has to be firstly preferred in the

absence of which date of birth certificate issued by a

Corporation or Municipal Authority or a Panchayat can be

considered and it is only thereafter, in the absence of

these documents, age is to be determined through

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'ossification test' or `by any other latest medical age

determination test conducted on the orders of the

concerned authority, i.e., Committee or the Board or

Court'.

12. In the present case school certificate - Ex.P.10

has been produced to prove the age of the victim girl. The

author of Ex.P.10 has not been examined and it has been

marked in the evidence of P.W.10 - Investigating Officer.

P.W.10 - Investigating Officer has no personal knowledge

regarding the date of birth of the victim girl. A perusal of

the contents of Ex.P.10 - school certificate indicates that

the victim girl has been admitted in the said school for the

year 2014-15 and she is studying in 10th Standard during

March, 2017. Said aspect itself establishes that she might

have been admitted to the said school for 8th standard.

Said certificate has not been issued by the school first

attended by the victim girl. P.W.1 - victim girl has not

stated her date of birth in her evidence. P.W.2 - mother of

the victim girl has also not stated the date of birth of the

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victim girl. The document produced at Ex.P.10 do not

answer the description of any of the class of documents

mentioned in Section 94(2)(i) of the JJ Act. Therefore, the

trial Court could not have placed reliance on Ex.P.10 to

hold that the victim girl was below the age of 18 years at

the time of commission of offence. The Hon'ble Apex Court

in the case of P. Yuvaprakash Vs. State by Inspector

of Police reported in 2023 INSC 626, after considering

the provisions of Section 34 of the POCSO Act, Section 94

of the JJ Act, and decisions of the Hon'ble Apex Court in

the case of Rishipal Singh Solanki Vs. State of Uttar

Pradesh reported in 2021 (12) SCR 502, Sanjeev

Kumar Gupta Vs. The State of Uttar Pradesh and

others, reported in 2019 (9) SCR 735 and Abuzar

Hossain @ Gulam Hossain Vs. State of West Bengal

reported in 2012 (9) SCR 224 has observed thus:

"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the

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matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchyat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of JJ Act. ........."

Even the victim girl in her statement recorded under

Section 164 of Cr.P.C. (Ex.P.1) has not stated her date of

birth. The document produced i.e., Ex.P.10 - study

certificate is not what Section 94(2)(i) of the JJ Act

mandates and it is not in accordance with Section 94(2)(i)

of the JJ Act. In these circumstances, only basing on the

evidence accorded under Section 94 of the JJ Act was the

medical ossification test. Said ossification test has not

been conducted. Therefore, under these circumstances

there is no material on record to establish the date of birth

of the victim girl as per Section 94(2) of the JJ Act and the

prosecution has failed to establish that the victim girl was

a child as defined under Section 2(1)(d) of the POCSO Act.

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13. P.W.2 - mother of victim girl has filed complaint

as per Ex.P.2. In Ex.P.2 mother of victim girl suspected

that victim girl might have gone with one Santosh having

mobile number 9845593109 as she had contacted him

over phone. Who is that Santosh has not been

investigated. As per the evidence of P.W.1 - victim girl she

came in contact with this appellant - accused when she

received a missed call from him. The victim girl had not

seen the appellant - accused prior to the date of incident.

On receiving the phone call from the appellant - accused

she went to the bus stand to meet him. How the victim girl

had identified the appellant - accused in the bus stand is

not forthcoming. The victim girl went with the appellant -

accused to his village and stayed for 8 days. What efforts

were made by the victim girl to come out of the house of

appellant - accused has not been stated by her in her

evidence. As per the evidence of P.W.1 - victim girl, on

25.01.2017 the appellant - accused in his house

committed forcible sexual intercourse on her. P.W.1 -

victim girl in her cross-examination has stated as under:

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'¯ÉÊAVPÀ ¸ÀA¨sÉÆÃUÀ ªÀÄvÀÄÛ CvÁåZÁgÀ JAzÀgÉ K£ÉAzÀÄ £À£ÀUÉ UÉÆwÛ®è ªÀÄvÀÄÛ ªÀiÁ»w E®è J£ÀÄßªÀÅzÀÄ ¸Àj'.

14. Said admission given by P.W.1 - victim girl in

her cross-examination indicate that she is not aware of

what is sexual intercourse and what is forcible sexual

intercourse. Therefore, the evidence of P.W.1 - victim girl

that appellant - accused had committed forcible sexual

intercourse on her cannot be taken into consideration to

attract offence under Section 376 of IPC or under Section

4 of the POCSO Act.

15. P.W.9 is the Doctor who examined the victim

girl and gave report as per Ex.P.7. In Ex.P.7 it is stated

that the victim girl is knowing the appellant - accused for

last 7 months. P.W.9 - the Doctor has deposed that there

are no signs of force and final opinion is reserved pending

FSL report and sexual violence cannot be ruled out. After

receipt of FSL report the Investigating Officer has not

sought final opinion of the Doctor - P.W.9. P.W.10 - the

Investigating Officer has stated in his evidence that he