Karnataka High Court
Anjalappa vs The State Of Karnataka on 27 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200113 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200113 OF 2018
(374(Cr.PC)/415(BNSS))
BETWEEN:
ANJALAPP S/O NAAGAPPA BOIN,
AGE: 35 YEARS, OCC: COOLIE,
R/O. MADAKAL VILLAGE, TQ. SEDAM,
DIST. KALABURAGI - 585 222.
...APPELLANT
(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)
AND:
Digitally signed
by SHIVAKUMAR
HIREMATH 1. THE STATE OF KARNATAKA
Location: HIGH THROUGH PSI., KURKUNTA PS,
COURT OF REP. BY THE ADDL. STATE PUBLIC PROSECUTOR,
KARNATAKA
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585 102.
2. XXX
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1;
R2 SERVED)
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CRL.A No. 200113 of 2018
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C
PRAYING TO ADMIT THIS APPEAL, ALLOW THIS APPEAL
AND THEREBY SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 11.07.2018 PASSED BY THE II
ADDITIONAL SESSIONS JUDGE KALABURAGI IN SPECIAL
CASE NO.41/2017 AND ACQUIT THE APPELLANT OF ALL
THE CHARGES.
THIS APPEAL COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
This appeal under Section 374(2) of Cr.P.C is filed by
the accused assailing the judgment and order of conviction
and sentence dated 11.07.2018, passed by the Court of
II Additional Sessions Judge, Kalaburagi in Special Case
No.41/2017.
2. Heard the learned counsel for the parties.
3. Appellant herein was charge sheeted for the
offences punishable under Sections 448, 504, 354 of
Indian Penal Code (hereinafter referred as 'IPC') and
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Section 8 of POCSO Act, 2012 and after appearing before
the Trial Court in the said case, appellant had claimed to
be tried. The prosecution in order to substantiate its
allegations against the appellant had examined 10 charge
sheet witnesses as PW.1 to PW.10 and got marked 9
documents as Ex.P.1 to P.9. After the evidence of the
prosecution was closed, the statement of the
appellant/accused was recorded under Section 313 of
Cr.P.C. However, no defence evidence was led on behalf
of the appellant nor any document was got marked in
support of the defence.
4. The Trial Court after hearing the arguments
addressed on both sides, by impugned judgment and
order of conviction, convicted the appellant for the
offences punishable under Sections 448, 504, 354 of IPC
and Section 8 of POCSO Act, 2012 and sentenced the
appellant to undergo simple imprisonment for a period of
one year and pay fine of Rs.1,000/- for the offence
punishable under Section 448 of IPC and in default to
undergo simple imprisonment for further period of 3
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months. For the offence punishable under Section 504 of
IPC, the appellant was sentenced to undergo simple
imprisonment for a period of 2 years and pay fine of
Rs.25,000/- and in default, to undergo simple
imprisonment for a further period of 6 months, for the
offence punishable under Section 354 of IPC and under
Section 8 of POCSO Act, the appellant was sentenced to
undergo rigorous imprisonment for a period of 4 years and
pay fine of Rs.1,00,000/- and in default to undergo simple
imprisonment for a further period of one year. Being
aggrieved by the judgment and order of conviction and
sentence passed by the Trial Court, the appellant is before
this Court.
5. Learned counsel for the appellant having
reiterated the grounds urged in the appeal memorandum
submits that there is absolutely no material as against the
appellant, which would attract offence punishable under
Section 354 of IPC and offence punishable under Section 8
of the POCSO Act, 2012. He submits that there are lot of
improvements made by the victim girl in her statement
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that was recorded under Section 164 of Cr.P.C., and also
during the course of her disposition before the Trial Court
as PW.1. Though, there is an allegation of sexual assault
against the appellant, undisputedly, the victim girl was not
examined medically for the alleged sexual assault and in
the wound certificate at Ex.P.9, it is found that she was
examined by the doctor only with an allegation of assault
on her on 08.01.2019. He submits that though there are
many houses where the alleged incident had taken place,
none of the neighbourers heard the victim girl shouting as
stated by her in her statement recorded under Section 164
of Cr.P.C and also during the course of her deposition.
Accordingly, he prays to allow the appeal.
6. Per contra, learned High Court Government
Pleader has opposed the prayer made in the appeal. He
submits that victim girl has made clear allegations against
the appellant which would attract the charge sheeted
offences as against him. The Trial Court after appreciating
the oral and documentary evidence placed on record, has
rightly convicted the appellant for the alleged offences and
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even the sentence imposed on him is just and proper.
Accordingly, he prays to dismiss the appeal.
7. The prosecution in order to prove its charges
against the appellant has examined 10 charge sheet
witnesses as PW.1 to PW.10. PW.1 is the victim girl, PW.2
is the grand mother of the victim girl, who was the
custodian of the victim girl, PW.3 is the mother of the
victim girl, PW.4 is the neighbour of PW.2, PW.5 is the
pancha to spot mahazar and PW.6 is the Panchayat
Development Officer of jurisdictional Gram Panchayat, who
has issued certificate at Ex.P.5, which shows that the
house in which incident had taken place stood in the name
of PW.2. PW.7 is the junior engineer, who has prepared
the spot sketch as per Ex.P.6 and PW.8 is the teacher,
who has issued the certificate Ex.P.7 regarding the date of
birth of the victim girl, PW.9 is the Police Sub-Inspector,
who has registered the FIR and investigated the case and
PW.10 is the doctor, who has issued the wound certificate
Ex.P.9.
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8. The first information is marked as Ex.P.1 and
Ex.P.2 is the statement of the victim girl recorded under
Section 164 of Cr.P.C. Ex.P.3 is the photo of the spot of
incident, Ex.P.4 is the spot panchanama, Ex.P.5 is the
certificate issued by Panchayat Development Officer with
regard to the property of PW.2, Ex.P.6 is the spot sketch,
Ex.P.7 is the endorsement issued by school with regard to
the date of birth of the victim girl, Ex.P.8 is the FIR in the
present case and Ex.P.9 is the wound certificate of the
victim girl.
9. In the first information as per Ex.P.1 submitted
by the victim girl at about 1.00 AM on 09.01.2017, it is
stated that on 08.01.2017 at about 1.30 PM., when the
victim girl was sitting outside her house, the appellant who
came there asked her to provide him a glass of water,
when she refused to give water and went inside the house,
the appellant allegedly followed her inside her house and
after abusing her using filthy language, pushed her to the
ground and fell on her and when she raised a cry appellant
allegedly ran away from the spot. She thereafter informed
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about the alleged incident to her grand mother-PW.2 at
about 6.00 PM and subsequently she had approached the
police and submitted her first information.
10. Perusal of the first information would go to
show that she has not made any allegation against the
appellant, as found in her statement recorded under
Section 164 of Cr.P.C at Ex.P.2 or during the course of her
deposition as PW.1. In the FIR it is stated that the
appellant who entered her house after assaulting her,
removed her cloths and also removed his cloth and
thereafter slept over her. In her statement recorded under
Section 164 of Cr.P.C., it is found that the appellant who
entered the house of the victim after she refused to give
him a glass of water assaulted her and thereafter removed
her cloths and also removed his cloths and pulled the
victim girl over him. During the course of her deposition
the victim girl-PW.1 has stated that the appellant/accused
after removing her cloths and his cloths slept over her and
when she raised a cry, allegedly ran away from the spot
after wearing his dress.
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11. The victim girl was taken to doctor PW.10
immediately after the registration of the first information.
PW.10 Doctor has said that she had examined the victim
girl at about 4.00 AM on 09.01.2017 with the history of
assault on 08.01.2017 and even the wound certificate at
Ex.P.9 would go to show that victim girl was examined
only with the history of assault. Therefore, it is evident
that there was no history of sexual assault given to the
doctor as it is now sought to be made out against the
appellant by the prosecution.
12. PWs.2, 3 and 4 are also hearsay witnesses and
they were not present near the spot of crime at the time
of incident. PW.2 came to know about the incident only
after the victim girl informed about the same to her on
08.01.2017 at about 6.00 PM and thereafter PW.2
allegedly informed about the act committed by appellant
to PW.3, who was at Hyderabad. Even PW.4 states that
he came to know about the incident after he was told
about the same by PW.2. Therefore, the evidence of
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PWs.2 to 4 does not in any way aid the case of
prosecution.
13. In my considered opinion there is no material
available on record to convict the appellant for the offence
punishable under Section 354 of IPC or for the offence
punishable under Section 8 of the POCSO Act. To convict
the accused for offence punishable under Section 8 of the
POCSO Act, the accused should have committed an act as
stated in the Section 7 of the POCSO Act with sexual
intent, which involves physical contact without
penetration. In the case on hand such an allegation is not
found in the initial stage of registration of FIR against the
appellant or at the stage of the victim girl being produced
before the doctor for her examination. It appears that, it
is for the said reason the victim girl was not medically
examined with regard to any allegation of sexual assault
and even the appellant was not medically examined in the
present case. The prosecution has also not seized the
dress that the victim girl and the appellant were wearing
at the time of incident. For the offence punishable under
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Section 354 of IPC the accused should have assaulted or
used criminal force against the woman with intent to
outrage her modesty. No such material is found as against
the appellant in the present case and therefore I am of the
opinion that the Trial Court was not justified in convicting
the appellant for the offences punishable under Section
354 of IPC and Section 8 of POCSO Act.
14. Insofar as the allegations against the appellant
for the offences punishable under Section 448 and Section
504 of IPC is concerned, the victim girl in her first
information as well as in her statement recorded under
Section 164 of Cr.P.C and during the course of her
deposition, has consistently stated that on 08.01.2017
after she had refused to give a glass of water to the
appellant, he had entered her house and after abusing
her, he had pushed her to the ground and as a result the
victim had fallen to the ground. However, she has not
suffered any injury in the said incident and in Ex.P.9 it is
clearly stated that no injury was found on any part of the
body of the victim girl. However, the fact remain that, the
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victim girl was taken to the doctor with the history of
assault by the appellant and allegation in the first
information is that appellant had entered the house of the
victim girl at about 1.30 PM on 08.01.2017 and after
abusing her using filthy language, he had pushed her to
the ground. The aforesaid allegations as against the
appellant, which is consistently found in the first
information at Ex.P.1, statement under Section 164 of
Cr.P.C at Ex.P.2 and also in the deposition of PW.1, would
at best attract the offences punishable under Section 448
of IPC and Section 504 of IPC as against the appellant and
therefore, I am of the opinion that the Trial Court was not
justified in convicting the appellant for all the charge
sheeted offences.
15. Under the circumstance, I am of the opinion
that that the judgment and order of conviction and
sentence passed against the appellant insofar as it relates
to the offence punishable under Section 354 of IPC and
Section 8 of POCSO Act needs to be set aside and same
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needs to be confirmed for offences under Section 448 and
Section 504 of IPC.
16. Insofar as the order of sentence is concerned,
it is brought to notice of this Court that the appellant was
in custody for the period of 4 months 11 days during the
course of trial and he is a married man having children.
Therefore I am of the opinion that, if the order of sentence
passed against the appellant for the offences punishable
under Section 448 of IPC and Section 504 of IPC is
reduced to the period of sentence already undergone by
the appellant, by maintaining the fine imposed by the Trial
Court the same would serve the ends of justice.
Accordingly, I pass the following;
ORDER
(i) The criminal appeal is partly-allowed.
(ii) The judgment and order of conviction and
sentence insofar as it relates to convicting
and sentencing the appellant for the offences
punishable under Section 354 of IPC and
Section 8 of the POCSO Act is set aside and
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the appellant is acquitted for the aforesaid
offences.
(iii) The judgment and order of conviction passed
by the Court of II Additional Sessions Judge,
Kalaburagi in Special Case No.41/2017 dated
11.07.2018 insofar as its relates to offences
punishable under Section 448 and 504 of IPC
is confirmed.
(iv) For the offence punishable under Sections
448 and 504 of IPC, the sentence is modified
and reduced to the period undergone by the
appellant and he shall pay fine of
Rs.26,000/- and in default he shall under go
further simple imprisonment for a period of 2
months.
(v) The excess fine amount, if any, deposited by
the appellant shall be refunded to him.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
AMM
CT:PK
