Karnataka High Court

Manjunath S/O Vittal Revadi Alias ... vs The State Of Karnataka on 5 September, 2024

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                                                  NC: 2024:KHC-D:12812
                                             CRL.A No. 100276 of 2023




              IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                 DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
                                    BEFORE
                     THE HON'BLE MR. JUSTICE S.RACHAIAH
                   CRIMINAL APPEAL NO. 100276 OF 2023 (C)
             BETWEEN:
                MANJUNATH
                S/O VITTAL REVADI ALIAS BADIGER
                AGED. 25 YEARS,
                OCC. FARMER, R/O. KALLAPUR,
                DHARAD TALUK AND DIST.
                (NOW IN CENTRAL PRISON DHARWAD)

                                                          ...APPELLANT
             (BY SRI. N R KRISHNAPPA, ADVOCATE)

             AND:
                THE STATE OF KARNATAKA
                BY P.I. WOMEN POLICE DHARWAD,
                REPT. BY PUBLIC PROSECUTOR,
                HIGH COURT BUILDING,
                DHARWAD - 580 001.

                                                      ...RESPONDENT
Digitally    (BY SRI. PRAVEEN Y. DEVAREDDIYAVARA, HCGP)
signed by
NARAYANA
UMA               THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF
Location:
HIGH COURT   CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED
OF           06.04.2023 CONVICTING THE APPELLANT FOR THE OFFENCE
KARNATAKA
             P/U/SEC. 376 R/W SEC. 511 OF IPC SENTENCING 10 YEARS
             RIGOROUS IMPRISONMENT AND TO PAY FINE OF RS.30,000/-
             ID TO UNDERGO S.I. FOR SIX MONTHS SENTENCED ON
             11.04.2023 AND ETC.,

                  THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
             JUDGMENT ON 22.06.2024 COMING FOR PRONOUNCEMENT OF
             JUDGMENT THIS DAY, THIS COURT DELIVERED THE
             FOLLOWING:
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                                              NC: 2024:KHC-D:12812
                                         CRL.A No. 100276 of 2023




CORAM:         THE HON'BLE MR. JUSTICE S.RACHAIAH

                           CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)

1. This Criminal Appeal is filed by the appellant/

accused No.1, being aggrieved by the judgment of conviction

dated 06.04.2023 and order on sentence dated 11.04.2023

passed in Spl.S.C.No.10/2021 on the file of the II Additional

District and Sessions Judge and Special Judge, Dharwad,

wherein the Trial Court convicted the appellant / accused No.1

for the offences under Section 376 r/w Section 511 of Indian

Penal Code (for short 'IPC') and Section 8 of the Protection of

Children from Sexual Offences Act, 2012 (for short 'POCSO

Act').

2. The rank of the parties in the Trial Court henceforth

will be considered accordingly for convenience.

Brief facts of the case are as under:

3. It is the case of the prosecution that the mother of

the victim had lodged a complaint stating that the victim is her

third daughter and she was studying in IX standard at

Government Higher Primary School, Veerapur. On 19.02.2021,

there was a festival namely Shivaji Jayanthi which was being

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celebrated in their village. She and her children had been to

watch the programme, however, her husband was staying at

home.

4. After sometime, the victim had informed the

complainant that she was hungry and wanted to have food.

After taking permission from the complainant, the victim went

to house to have food. The victim after having dinner, she was

returning to the place where the complainant was watching the

programme. In the mean time, accused No.1 kidnapped her

and took her to the house of accused No.2. The victim was

screaming for help and she was constantly calling her father.

The father of the victim immediately informed the complainant

and asked her to come to house.

5. The complainant was coming towards her house

and in the meantime, she saw that her husband was knocking

the door of the house of accused No.2 by scolding them.

Immediately, she also joined her husband and both have

pushed the door and went inside the house and saw that

accused No.1 was sitting on the body of the victim and he had

shut her mouth by his hand. The other two accused were

standing little away from the place of occurrence. After seeing

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the complainant and her husband, all the three ran away from

the spot through the backdoor of the said house.

5(i) On seeing, the victim had sustained injuries. The

complainant and her husband being the parents of the victim

have rescued her. Thereafter, they went to the police station

to lodge a complaint. However, the jurisdictional police had

instructed them to go to the hospital to get the medical

certificate. After obtaining the medical certificate, a case came

to be registered against the accused. After conducting

investigation, submitted the charge sheet.

6. To prove the case of the prosecution, the

prosecution examined, in all, 18 witnesses namely PWs.1 to 18

and got marked 40 documents as Exhibits P1 to P40 and also

identified 7 material objects as MOs.1 to 7. On the other hand,

the defence got marked 2 documents as Exhibits D1 and D2.

7. The Trial Court after appreciating both oral and

documentary evidence on record, recorded the conviction of

accused No.1 for the offences stated supra and sentenced him

to undergo rigorous imprisonment for a period of ten years and

to pay a fine of Rs.30,000/-, in default of payment fine, he shall

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further undergo simple imprisonment for a period of six months

for the offences punishable under Section 376 r/w Section 511

of IPC. For the offence punishable under Section 8 of the

POCSO Act, the accused No.1 was sentenced to undergo

rigorous imprisonment for a period of four years and to pay a

fine of Rs.20,000/-, in default, to undergo simple imprisonment

for a period of four months. The substantive sentences were

ordered to run concurrently. Being aggrieved by the same, the

appellant / accused No.1 has preferred this appeal.

8. Heard Shri N.R.Krishnappa, learned counsel for the

appellant and Shri Praveena Y.Devareddiyavara, learned High

Court Government Pleader for the respondent - State.

9. It is the submission of learned counsel for the

appellant that the findings recorded by the Trial Court in

recording the conviction are contrary to the evidence on record

and therefore, the same is liable to be set aside.

10. It is further submitted that the complainant was

working as a Asha worker and there is a delay in lodging the

complaint. The said delay has not been explained by the

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complainant. Delay in lodging the complaint without

explanation which appears to be fatal to the case of the

prosecution. However, the said delay has not been considered

properly.

11. It is further submitted that the victim has not been

subjected to medical examination to ascertain the sexual

assault. In the absence of the same, it cannot be inferred that

accused No.1 had attempted to commit sexual assault.

12. It is further submitted that the accused No.1 has

been falsely implicated in this case and none of the

independent witnesses have deposed regarding the incident,

except the interested witnesses. The evidence of interested

witnesses should have been scrutinized properly before

appreciating it. However, the Trial Court relied on the evidence

of interested witnesses and recorded the conviction which is not

proper.

13. It is further submitted that the date of birth of the

victim has not been properly appreciated by the Trial Court,

even though the prosecution has produced certain documents

with regard to the date of birth of the victim. In the absence of

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the birth certificate, it cannot be construed that her age is less

than 18 years. However, the Trial Court considered the said

documents by excluding the procedure contemplated under the

Juvenile Justice Act to determine the age of the victim, and

recorded the conviction which is liable to be set aside. Making

such submissions, learned counsel for the appellant prays to

allow the appeal.

14. Per contra, learned High Court Government Pleader

for the respondent vehemently justified the judgment of

conviction passed by the Trial Court and submitted that the

evidence of the victim, her mother and father is consistent in

respect of the offences. Though they have been cross-

examined at length, nothing has been elicited to bring the

contradiction. As such, their evidence is believable and

relevant.

15. It is further submitted that the Doctor who treated

the victim, opined that the victim had sustained injury on her

body, which corroborates the evidence of the victim. There are

some inconsistencies and minor contradictions in the evidence

of the witnesses, however, it cannot be construed as material

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contradictions. Therefore, the findings of the Trial Court in

recording the conviction is justified and interference with the

said findings may not be necessary. Making such submissions,

learned High Court Government Pleader prays to dismiss the

appeal.

16. After having heard learned counsel for the

respective parties and also perused the findings of the Trial

Court, it appears from the record that P.W.2 was working as a

Asha worker and resident of Kallapura village. On 19.02.2021,

there was a festival namely Shivaji Jayanthi, the complainant

and her children including the victim had been to watch the

programme. In the meantime, the victim had informed the

complainant that she wanted to have some food as she was

hungry and went to the house to have food. In the meantime,

the husband of the complainant had asked the complainant to

come home immediately. When the complainant was going to

her house, she saw that her husband was knocking on the door

of the house of accused No.2 by scolding them. She went

there and both of them heard the screaming voice of their

daughter. The victim was calling from inside as "appa" for help.

P.Ws. 2 and 3 being parents of the victim have pushed the door

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and saw that accused No.1 was sitting on the body of the

victim and was trying to outrage her modesty. After seeing

them, accused Nos.1 to 3 flee away from the backdoor of the

said house. Thereafter, the complainant after getting the

victim treated in the hospital, lodged a complaint before the

jurisdictional police.

17. Learned counsel for appellant raised certain

grounds that the Trial Court has ignored in considering the

delay in lodging the complaint and also the contradictions in the

evidence of the witnesses and recorded the conviction are

concerned, it is relevant to refer the evidence of all the

witnesses for the purpose of not only re-appreciating it, but

also to find out as to whether any errors committed by the Trial

Court in appreciating the same.

18. P.W.1 is the victim. She has deposed in her

evidence that on 19.02.2021, she had been to witness the

Shivaji Jayanthi programme which was being held in her

village. Around 10.30 p.m. to 11.00 p.m., she went to home

on the pretext of having dinner as she was hungry. After

having her dinner, she was proceeding towards the place where

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her mother was staying. In the meantime, she was taken to the

house of accused No.2 by accused No.1 in order to commit

sexual assault. She being a minor girl having frightened by the

act of the accused called for help and called the name of her

father. Her father rushed to the spot by informing the said fact

to the complainant and also informed her to come near the

house.

19. P.W.1 further deposed that accused No.1 was

attempting to commit sexual assault by removing her pant and

also he was sitting on her. In the meantime, accused Nos. 2

and 3 were guarding the act of accused by standing in a nearby

distance. She further deposed that her parents rushed to the

house by pushing the door and rescued her. She narrated the

incident thoroughly even though, she had been subjected to

cross-examination. As such, the evidence of P.W.1 can be

believable and reliable. The Trial Court acting on the evidence

of this witness and recorded the conviction.

20. Similarly, P.W.2 who is none other than the mother

of the victim, also deposed in consonance with that of P.W.1

and supported the case of prosecution. Some suggestions were

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made to her regarding the delay in lodging the complaint and

also suggested to her that even though no such incident had

happened, she intentionally filed a false case against the

appellants, she denied the said suggestions and also explained

the causes for delay in lodging the complaint.

21. Though there are some other witnesses have been

examined in this case, it is relevant to refer the evidence of

material witnesses namely, the Doctor, who conducted the

examination and the School Masters who have issued the birth

certificate or certificate indicating the date of birth of the victim

which are necessary and relevant.

22. P.W.7 was working as a Head Master in

Government High School, Veerapur from November 2016 to

31.03.2022. According to him, he gave the certificate which is

considered as study certificate and the same is marked as

Ex.P10. As per the school records, her date of birth is

mentioned as 16.12.2005.

23. Similarly, P.W.12 was working as a incharge Head

Master in Government High School, Kallapur from November

2016 to 31.03.2022. He has also been examined for the

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purpose of determining the date of birth of the victim. He

stated to have issued study-cum-birth certificate as per Ex.P21

indicating the date of birth of the victim as 16.12.2005, based

on the admission application of the victim and information

given by her parents in the register maintained in their high

school. He has supported the case of the prosecution.

24. P.W.13 is the father of the victim has supported the

case of the prosecution. However, the prosecution treated him

as hostile and conducted cross-examination. In the said cross-

examination, it has been elicited that accused Nos.1 to 3 were

jointly responsible for the offence committed against the victim.

25. P.W.9 was working as a Senior Specialist and OBG,

HOD at District Hospital, Dharwad. She stated to have

examined the victim on 20.02.2021 at about 1.30 a.m. She

deposed in her evidence that the victim had informed her about

the history of the injuries caused to her. As per the said

information, the accused had attempted to commit sexual

assault on the victim. However, the victim and her mother

were not willing for a local examination as there was no sexual

assault against the victim. Though the Doctor had been cross-

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examined, nothing has been elicited to disbelieve her evidence.

The said Doctor gave her certificate as per Ex.P14.

26. On overall reading of the evidence of PWs.1, 2 and

13 relating to the incident, though they are interested

witnesses, their evidence has been corroborated by the

evidence of the Doctor-P.W.9 who examined the victim. In

addition to the proof of the incident, the date of birth of the

victim has been established and proved through the evidence of

the Head Masters of the respective schools and the documents

relating to her date of birth are marked as Exs.P10 and P21

respectively. Though the victim, her mother and father have

been extensively cross-examined by the accused persons,

nothing is there to disbelieve their evidence.

27. In addition to the evidence of the oral evidence of

P.W.1, it is relevant to refer presumption. Now, it is relevant to

refer Section 29 of the POCSO Act, which reads thus:

"29. Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has

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committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

On careful reading of the above said provision, it can be

inferred that when a person is prosecuted for committing any

offence under Sections 3, 5, 7 and 9 of the POCSO Act, the

Special Court shall presume that such a person has committed

the offence unless the contrary is proved.

28. Having considered the principle enunciated under

the Law and also considering the evidence of P.Ws.1, 2 and 13,

it is inferred that the prosecution has proved that accused

Nos.1 to 3 with a common intention to commit sexual assault

against a minor girl, kidnapped her and accused No.1 was also

attempting to commit sexual assault against the minor girl and

others were waiting in the nearby places. However, she was

rescued by the parents. Therefore, I am of the considered

opinion that the prosecution has proved the case beyond

reasonable doubt regarding outraging the modesty of the victim

and also attempted to commit sexual assault. Hence, I

declined to interfere with the findings of the Trial Court.