Karnataka High Court
Mohammed Ashraf @ Ashraf vs The State Of Karnataka on 2 May, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 2023 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MAY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.2023 OF 2019
BETWEEN:
MOHAMMED ASHRAF @ ASHRAF
S/O B.P.ISMAIL,
AGED ABOUT 35 YEARS,
R/AT NEAR RENJADI JUMMA MASJID,
BELMA, AMBLAMOGARU VILLAGE,
MANGALURU - 577001
...APPELLANT
(BY SRI SACHIN B S, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
POLICE INSPECTOR, ULLAL POLICE STATION,
ULLAL, MANGALORE, D.K. - 577001,
Digitally signed REP. BY THE STATE PUBLIC PROSECUTOR,
by DEVIKA M HIGH COURT BUILDINGS,
Location: HIGH BANGALORE-560001
COURT OF
KARNATAKA
2. NAGESHA ADKA
AGED ABOUT 61 YEARS
S/O LATE NARAYANA
R/AT PRATHIKSHA NEHARU NAGARA
SOMESHWARA VILLAGE
MANGALURU CITY - 575001
...RESPONDENTS
(BY SMT. K P YASHODA, HCGP FOR R1;
R2 - SERVED, UNREPRESENTED)
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CRL.A No. 2023 of 2019
THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET
ASIDE THE JUDGMENT DATED 06.11.2019 AND SENTENCE
DATED 08.11.2019 PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS (SPECIAL) JUDGE D.K., MANGALURU IN
SPL.C.NO.142/2017 AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This appeal is filed challenging the judgment of
conviction and sentence passed in S.C.No.142/2017 by the
II Additional District and Sessions (Special) Judge,
Dakshina Kannada, Mangalore.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the
prosecution that the parents of the victim boy are
employed in the Bank. On 13.06.2016, both of them had
gone to attend their respective work. On that day, their
children and their mother were in the house. In the noon,
son of the complainant aged about 11 years made a
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telephone call to the complainant and asked him to come
home immediately. Accordingly, when the complainant
came home and enquired the victim, he discloses that on
that day at about 12.20 p.m., accused, who is a scrap
collector had come to their house and asked family
members whether they had any scrap materials. At that
time, grandmother of the victim boy told that there was no
scrap material in their house. Inspite of that, accused
asked the victim boy to come to the back of the house on
the pretext of searching for scrap materials. When the
victim boy went behind the house, accused held him firmly
and gave a kiss on his cheek. Thereafter, by using force,
he removed the shorts and made him not to move and
penetrated his penis to the anus of the victim boy. Victim
boy shouted and accused put his hand on his mouth and
also threatened him. Again victim boy shouted loudly and
thereafter accused ran away from that place.
4. Based on these allegations, a complaint came
to be lodged against the accused and the police have
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registered the case invoking Section 377 of IPC and
Sections 3(a), 4, 8 and 12 of POCSO Act against the
accused and investigated the matter and filed the charge-
sheet. Accused was secured and he did not plead guilty
and claims for trial. In order to prove the case of the
prosecution, prosecution mainly relied upon the evidence
of PW1 to PW10 and got marked the documents at Ex.P1
to P10 and material objects as MO1 to MO10. The accused
subjected for 313 statement and he did not choose to lead
any evidence. The Trial Court having considered both oral
and documentary evidence placed on record particularly,
the evidence of PW1 to PW3 wherein they deposed that on
the date of incident, accused has come to the
complainant's house for collecting scrap materials and
thereafter, in the pretext of searching for scrap materials,
accused took the victim to the backyard of the house and
committed unnatural offence on the minor victim boy. The
evidence of neighbourer i.e., PW3 also discloses that on
the date of incident, accused came to his house first
asking for scrap material and thereafter PW3 had seen the
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accused going to the house of complainant. Evidence of
PW3 further discloses that after half an hour, he heard
screaming sound of PW1 and immediately, PW3 had gone
to the house of PW1 and had seen the accused running
from the spot and PW1 was weeping. When enquired, PW1
narrated the incident and PW3 suggested him to inform his
father over phone. Accordingly, intimation was given to
the father of the victim at about 12.30 p.m. stating the
incident and immediately, PW2 came to home and
enquired with victim and thereafter immediately lodged
the complaint. The Trial Court also considered the
evidence of doctor who has been examined as PW4 who
deposed that after the incident, immediately, the boy was
taken to the hospital and his opinion is that anal
intercourse could have occurred because of mucosal tear
of anterior wall and because of tenderness near the anal
region and also taken note of the material on record and
comes to the conclusion that the prosecution has proved
the case and hence, the Trial Court convicted the accused
for the offence punishable under Sections 447 and 377 of
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IPC and Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (for short 'POCSO Act') and
sentenced for rigorous imprisonment for a period of ten
years with fine of Rs.5,000/-. Being aggrieved by the
judgment of conviction and sentence, the present appeal
is filed before this Court.
5. The learned counsel for the appellant would
vehemently contend that the material on record does not
disclose any material with regard to committing of the
offence punishable under Section 6 of the POCSO Act. The
counsel also brought to notice of this Court Section 5 of
the POCSO Act regarding aggravated penetrative sexual
assault and also read the said section in entirety and also
brought to notice of this Court to Section 7 of POCSO Act
wherein it is held that sexual intent touches the vagina,
penis, anus or breast of the child or makes the child touch
the vagina, penis, anus or breast of such person or any
other person, or does any other act with sexual intent
which involves physical contact without penetration is said
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to commit sexual assault. Hence, the counsel submits that
it attracts Section 8 of POCSO Act not Section 6 of the said
Act. The counsel also would vehemently contend that the
accused has already served five years, six months and
fourteen days and the Trial Court comes to the conclusion
that that it is an offence under Section 7 of the POCSO Act
and punishment provide under Section 8 of the POCSO Act
wherein it is held that whoever, commits sexual assault,
shall be punished with imprisonment of either description
for a term which shall not be less than three years but
which may extend to five years, and shall also be liable to
fine. Hence, the learned counsel prayed this Court to set
off against the appellant since he underwent punishment
more than five years.
6. Per contra, the learned counsel appearing for
the State would vehemently contend that the accused not
disputes the fact that the victim had sustained the injury
and the same is evident from the evidence of doctor. The
counsel further submits that PW2 is the father of the
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victim boy and he came to know about the incident
belatedly and he took the victim boy to the hospital
immediately i.e., on the very same day in the evening.
The counsel also would contend that PW4 who is a doctor
deposed that there was a mucosal tear measuring 0.5 c.m.
bleeding was seen on examination. The counsel also
submits that the incident was taken place at about 1.00
p.m. and immediately, PW2 was called by the neighbourer
PW3 and PW3 also seen going the accused inside the
house of PW1 after visiting his house and he also heard
the screaming sound and also found that the accused was
running from the backyard of the house of PW1. The
counsel also would vehemently contend that the Trial
Court taken note of the evidence of PW1 to PW3 as well as
PW4 and it is not disputed fact that the victim had a
mucosal tear measuring 0.5 c.m. and date of incident also
not disputed and apart from that the evidence of PW4 is
very clear that the causes for mucosal tear are hard
stools, any foreign body insertion to the anal region, piles
and fistula and also not mentioned the age of the tear in
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Ex.P4 and nothing is elicited in the cross-examination of
PW4 and evidence is also clear that mucosal tear heal
within two to eight days and in case of major mucosal
tear, it takes nearly two weeks to heal. The counsel would
vehemently contend that the Trial Court rightly taken note
of the evidence of PW1 to PW3 as well as medical evidence
of PW4. Under such circumstances, the very contention
that it attracts Section 7 at the most and not Section 5
and also penal provision not attracts Section 6 and at the
most it attracts Section 8 cannot be accepted and there
was no delay in lodging the complaint and the said fact
also taken note of by the Trial Court and hence, it does not
requires any interference by this Court.
7. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, the point that would arise for the consideration
of this Court is:
1. Whether the Trial Court committed an error in
convicting and sentencing the accused and
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whether it requires interference of this Court
exercising the appellate jurisdiction?
2. What order?
Point No.1:
8. Heard the learned counsel appearing for the
respective parties and also perused the material on record.
The charges leveled against the accused are Section 477
and 377 of IPC and Section 6 of the POCSO Act.
Considering Section 5 and Section 7, whether it attract
Section 6 or Section 8 as contended by the counsel for the
appellant and invoking of penal provisions by the
prosecution, this Court has to reanalyse the material on
record.
9. The evidence of PW1 is that at about 12.00
p.m., he was with his grandmother and accused, who is a
scrap collector had come to their house and asked family
members whether they had any scrap materials. At that
time, grandmother of the victim boy told that there was no
scrap material in their house. Inspite of that, accused
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asked the victim boy to come to the back of the house on
the pretext of searching for scrap materials. The act of
the accused was narrated in paragraph 3 of his evidence
and immediately, he brought to the notice of this incident
to the grandmother and the grandmother told him to
inform to his father and accordingly, the intimation was
given to his father and father also came and gave
complaint and case was registered and spot mahazar was
conducted. It is his evidence that he was examined before
the Magistrate under Section 164 of Cr.P.C and he also
identified his signature. This witness was subjected to the
cross-examination wherein it is elicited that on that day,
he was wearing T-shirt, shots and same was given to the
police at the time of mahazar and also deposed that
incident was taken place within 15 minutes of reply given
to the grandmother and he also went along with the father
to the police station. He identified his signature in the
mahazar. A suggestion was made that no incident was
taken place and complaint was given at the instance of the
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father and the villagers and the said suggestion was
denied.
10. The other witness is PW2 who is a father of the
victim boy. He deposed that after coming to know about
the incident, he gave the complaint and also identifies his
signature in Ex.P3 and he deposed that his son revealed
the act of accused and when the complaint was given, on
the same day, the police conducted the spot mahazar. In
the cross-examination of this witness, he deposed that
after receiving the information, he rushed to the house
and also admits that when he came to the house, no
persons were near the house and he gave the complaint
between 1.30 to 2.00 p.m. and accused was brought to
the police station on the very same day at about 3.00 p.m.
and police also came to the spot at 4.00 p.m. and he
cannot tell that who accompanied with the police. A
suggestion was made that police have not conducted any
mahazar and also he has not signed any mahazar and the
same was denied.
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11. The other witness is PW3 who is a neighbour.
PW3 in his evidence he says that accused first came to his
house asking scrap material and thereafter he went to the
house of PW1 and he went behind the house and
thereafter he went inside the house and as soon as he
heard the screaming sound, he rushed to the spot wherein
he saw running the accused from the spot and he
witnessed the same and on enquiry, PW1 revealed the act
of the accused. This witness also subjected to the cross-
examination wherein he admits that he did not witness the
incident but he had witnessed that accused running from
the house of PW1 and also admits that he has not given
any intimation to the police.
12. The other witness is PW4 who is a doctor.
Doctor says that he had examined the victim boy at 4.10
p.m. on 13.06.2016 and radiology examination showed
the victim to be aged between 11 to 12 years and on
examination, there were not external injuries on the victim
but on anal examination, the victim had a mucosal tear
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measuring 0.5 c.m., bleeding was seen but no seminal
stains were detected near the anal region. Biological
evidences were collected from the body of the victim for
scientific examination and the clothes were preserved for
scientific examination and the doctor opined that anal
intercourse could have occurred because of mucosal tear
of anterior wall and because of tenderness near the anal
region. This witness was subjected to the cross-
examination wherein he did not dispute the nature of
injury and the answer elicited that the causes for mucosal
tear are hard stools, any foreign body insertion to the anal
region, piles and fistula and also deposed that he has not
mentioned the age of the tear in Ex.P4. Usually, mucosal
tear will heal within two to eight days, in case of major
mucosal tear, it takes nearly two weeks to heal. In the
cross-examination, it is admitted that he has not
suggested for colonscopy to the victim and voluntarily
stated that she had taken opinion from the general
surgeon and not mentioned in Ex.P4 about taking the
opinion of the general surgeon.
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13. The other witness is PW6 who is a Scientific
Officer of RFSL. In the chief examination, he says that
presence of blood stains was detected in article No.B3 and
C2 and the presence of blood stains were not detected in
other articles and the presence of seminal stains were not
detected in any of the articles and says that article B3 and
C2 were stained with human blood but blood group could
not be determined as blood sample was disintegrated and
he gave report as per Ex.P6 and serology report as Ex.P7.
14. Having considered both oral and documentary
evidence placed on record, it discloses that the
prosecution mainly relies upon the evidence of PW3 who is
a neighbourer. Though PW3 is says that he has not
witnessed the incident but he witnessed that accused
running from the backyard of the house of PW1. Apart
from that PW2 who is a father deposed that after getting
the information, he rushed to the house and took the
victim to the hospital and gave the complaint on the same
day. The material witness is PW4 who is a doctor and he
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deposed that he examined the victim at 4.10 p.m. In
between three hours of incident, the father was called over
phone and thereafter father came and taken the boy to
the hospital and provided the medical treatment and
complaint was lodged and case was registered. The
evidence of PW4 is very clear that on examination, found
mucosal tear measuring 0.5 c.m. with bleeding and
biological evidences were collected from the body of the
victim for scientific examination and clothes were
preserved for scientific examination and the opinion of the
doctor that anal intercourse could have occurred because
of mucosal tear of anterior wall and because of tenderness
near the anal region. The age of the victim is 11 years
and PW1 who is he victim also narrated the incident to the
grandmother and the grandmother in turn informed to the
father of the victim and the evidence of P.W.3 is also very
clear witnessing the fact that the accused first went to the
house of P.W.3 and thereafter went towards the house of
the victim and P.W.3 also heard the screaming sound and
when P.W.3 came out from his house, he noticed that
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accused was running from the backyard of the house of
P.W.1 and medical evidence also clearly discloses that the
victim was subjected to penetrative sexual Act.
15. Though counsel appearing for the appellant
relied upon the judgment of the Himachal Pradesh High
Court, Shimla and brought to notice of this Court
paragraph No.23 wherein discussion was made with regard
to the appreciate the point that nature of injuries is
concerned, however in the paragraph No.24 the Himachal
Pradesh Court taken note of medical jurisprudence and
held that it would be evident that in the instant case, the
anal herpes of the victim was healthy and no fresh or
recent injuries are noticed suggesting false suit in the
prosecution case and having taken note of the same
comes to such a conclusion, but in the case on hand
material clearly discloses that immediately after the
incident was taken place, injured was taken to the hospital
and also subjected to medical examination and certificate
also clearly discloses the same and nothing is suggested in
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evidence of P.W.1 to P.W.3 and any animosity between
the accused and also the P.W.1 to P.W. 3 and also the
false implication of the accused. Apart from that medical
evidence corroborates the case of the prosecution and the
very contention of the counsel appearing for the appellant
that at the most it attracts the section 7 and penal
provision of Section 8 cannot be accepted since P.W.1
categorically spoken about the manner in which the
accused subjected him for penetrative sexual act and also
there was a tear of mucosal as deposed by P.W.4 and the
evidence available on record not suggests the ingredients
of Section 7 as contended by the appellant's counsel and
the material available on record only suggests the
evidence and ingredients of Section 5 of the POCSO Act
and when such being the case, the very contention of the
counsel appearing for the appellant that already he has
undergone sentence for more than 5 years cannot be a
ground to give any set-off invoking Section 8 instead of
Section 6. Hence, I do not find any ground in the appeal to
comes to such a conclusion of contention of the appellant's
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counsel that it attracts at the most Section 7 and 8 cannot
be accepted and hence, there are no grounds to interfere
with the findings of the Trial Court.
Point No.2:
16. In view of the discussions made above, I pass
the following:
ORDER
The Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN/RHS
