in the high court of karnataka dharwad bench dated...
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY 2018
BEFORE
THE HON’BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 100090/2017 BETWEEN: SRI. SOMAPPA @ SWAMY, S/O YAMANAPPA HARIJAN, AGE: 36 YEARS, OCC.: COOLIE, R/O: IRAKALAGADA, TAL & DIST: KOPPAL.
- APPELLANT (BY SRI SRINAND A PACHHAPURE, ADVOCATE) AND: STATE OF KARNATAKA THROUGH KOPPAL RURAL POLICE STATION, NOW REP. BY SPP, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD.
- RESPONDENT (BY SRI RAJA RAGHAVENDA NAIK, GOVT. PLEADER)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C. AGAINST THE JUDGMENT OF CONVICTION DATED 14.02.2017 AND ORDER OF SENTENCE DATED 15.02.2017 PASSED BY THE DISTRICT AND SESSIONS/ SPECIAL JUDGE, KOPPAL, IN SPL. POCSO (S.C.) NO. 35/2015 FOR THE OFFENCE PUNISHABLE U/S 376 OF IPC AND U/S 5(1) R/W SEC. 6 OF POCSO ACT & ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
R
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JUDGMENT
This appeal is directed against the judgment of
conviction and order of sentence passed by the Court below in
Spl. POCSO (S.C.) No. 35/2015 dated 14.02.2017/
15.02.2017 wherein the accused is convicted for the offences
punishable u/S 376 of IPC and u/S 5(1) r/w Sec. 6 of POCSO
Act, 2012, and sentenced to undergo rigorous imprisonment
for ten years and to pay a fine of Rs.5,000/- for the offence
punishable u/S 6 of POCSO Act, 2012 r/w Sec. 376 of IPC
with default clause.
2. Brief factual matrix of the case are as under:
That the victim girl is a minor aged about 16 years; he
induced her that he will marry her and saying so had sexual
intercourse with her in a garden land belonging to Mahantesh
Pattanshetty of Irakalgada; on 02.08.2015 kidnapped her,
took her to Kunchur village near Ranebennur, kept her in a
room near the house of one Somappa Babujan and had
sexual intercourse with her. On the filing of the complaint by
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the complainant, case in Crime No. 196/2015 as per Ex.P.14
came to be registered by the Police against the accused for the
offences punishable u/S 363, 376 of IPC besides Sec. 6 of
POCSO Act, 2012. PW13 –Pramod, H.C. No. 135 of Koppal
Rural Police Station received the complaint as per Ex.P.8.
After investigation charge sheet has been laid by the
Investigating Officer against the accused for the aforesaid
offences as where the trial Court has framed the charge sheet
against the accused, the accused did not plead guilty but
claimed to be tried. The prosecution in order to prove the
guilt against the accused examined witnesses as per PWs.1 to
16 and got marked documents as per Exs.P.1 to P.18. On
appreciation of the entire materials placed by the prosecution
analytically held conviction against the accused for the
offence punishable u/S 376 of IPC r/w Sec. 6 of POCSO Act,
2012. It is this judgment which is challenged in this appeal.
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3. I have heard arguments of the learned counsel for the
appellant and the learned Govt. Pleader for the State and
perused the records of the case.
4. Whereas the learned counsel for the appellant who has
taken me through the evidence of P.W.1, who is the Civil
Judge & JMFC, Koppal, who has stated in her evidence that,
on 26.08.2015 she recorded the statement of the victim u/S
164 of Cr.P.C. upon the requisition submitted by the CPI,
Koppal. Victim was accompanied by a Woman Police
Constable from Koppal Rural Police Station. On enquiry with
the victim as to whether anybody has tutored or induced her,
she stated that nothing has been made and accordingly she
gave statement u/S 164 of Cr.P.C. as per Ex.P.1. The same is
forwarded to the concerned Court in a sealed cover. In the
cross-examination made on behalf of the accused she has
denied the suggestion that the age of the victim and the facts
of the case have not been voluntarily stated by the victim.
She has further denied the suggestion that the Police have
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threatened the victim to state the facts as per Ex.P.1 as
contemplated u/S 164 of Cr.P.C.
5. P.W.7 is the victim girl. She has stated that, one year
backshe had accompanied her mother to the garden land of
one Mahantesh in the limits of Jinnapur Tanda. Her mother
used to attend coolie work there where the accused also used
to come there for coolie work. She was sent to a nearby room
in the land to get water. When she had been to nearby the
room she found that the accused was there and he told that
he would marry her and saying so he made physical contact
with her. The accused had committed similar act thrice but
she did not intimate this fact to her mother. On another day
she had been to the garden land of Mahantesh. By that time
also the accused was there to attend the coolie work. He told
her that, in the evening he would come to her house and take
her to Ranebennur and get her married. At about 11 p.m.
when her father and mother were sleeping in the house she
came out of her house and later herself and the accused went
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to Irakalagad by walking and from there they went to Koppal
in a lorry. From there they boarded a car to proceed to
Ranebennur. They reached Ranebennur in the morning
nearby a village but she did not remember the name of the
village. He has taken her to a house wherein he introduced
her as his wife and asked to give coolie work to himself. That
person accepted his request and gave coolie work in his land
and also gave one room for their use. They have resided in
the said room for about 20 days and there also he had sexual
intercourse with her. After 20 days Koppal Police came there
and took both of them. Due to the physical contact by the
accused she became pregnant. In her cross-examination she
has stated that the garden land of Mahantesh said to be
situated at a distance of 4-5 kms from Jinnapur Thanda, she
was residing with her parents, sister and other two brothers,
her sister was married with a person of Ginigera village. As
she had denied to reside lonely in the house, she used to
accompany her mother for attending the Coolie work in the
garden land but she was not doing the coolie work.
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Mahantesh was giving coolie to her mother. She saw the
accused for the first time in the garden land. She has denied
the suggestions to the extent that she is deposing falsely.
6. P.W.4-Dr.Laxminarayan is the Doctor who has
subjected the accused to medical examination and issued
report as per Ex.P.4. There is nothing in the report to suggest
that the accused is incapable of performing sexual
intercourse.
7. P.W.5-Dr.Mehaboobi is the Doctor who has subjected
the victim girl to medical examination. P.W.5 deposed that
the victim girl was produced by WPC No. 12 of Koppal Rural
Police Station. After physical examination of the victim she
has issued certificate as per Ex.P.5. The Doctor has opined
that no external injuries are found on her person. As the
victim girl was pregnant nothing was collected. On
examination of the victim girl she has referred her for urinary
pregnancy test and obstetric scan for period of gestation.
Accordingly, she issued OPD chit as per Ex.p.6. Urinary
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pregnancy test report is issued as per Ex.P.7. In the cross-
examination she has deposed that, the victim was aged 16
years as stated by her mother, no external injuries were
found on her body, she was habituated for sexual intercourse;
she further deposed that she cannot say as to whether prior
to this pregnancy she had another pregnancy or she had
undergone for abortion. This evidence of the Doctor runs
contrary to the evidence of P.W.7-victim.
8. P.W.8-Shivappa is the father of the victim girl. He has
specifically stated in his evidence that his daughter-victim
had left the school while she was aged 6-7 years because of
small pox. The accused was acquainted with his daughter as
the accused used to go to the land of Mahantesh for attending
the coolie work. His daughter was not seen at 11 pm and
when he asked his wife-P.W.11 she also not found the victim.
Thereafter they have made search of their missing daughter.
A person by name Mukkanna -P.W.12, informed that their
daughter was seen holding a tumbler in her hand. They have
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searched for their daughter for almost four days and
thereafter they filed complaint as per Ex.P.8. Later they came
to know that her daughter was taken by the accused and
abducted for 20 days near Ranebennur. Thereafter they had
been to the Police station and saw the victim and upon
enquiry she revealed that the accused had forcible sexual
intercourse with her on the pretext of marrying her. He has
denied the suggestion that in order to suit the purpose a false
complaint is filed.
9. P.W.15-Chittaranjan is said to be the PSI of T.B. Dam
Police Station who received the complaint and proceeded with
the case for investigation, visited the scene of crime shown by
the complainant. Accordingly, he drawn the panchanama as
per Ex.P.2 and also drew map of scene of offence as per
Ex.P.16, recorded the statements of C.Ws.5 to 8. He deposed
that on 24.08.2015 the victim was produced by C.W.15-
Woman Police Constable, to the Government Hospital,
Koppal, sent the accused to the Government hospital for
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medical examination and thereafter he has handed over the
entire investigation to C.W.18-CPI. In the cross examination
he deposed that, Ex.P.2 is the panchanama drawn by him,
the said place is in Jinnapur tanda, he secured panchas -
C.Ws.2 and 3 being the panch witnesses but he did not give
any notice to them to secure the panch witnesses as per
Ex.P.2. He has denied the suggestion that Ex.P.2 is drawn by
him at the scene of crime itself. He has denied the suggestion
that he is deposing falsely.
10. P.W.16-P. Mohan Prasad is the Investigating Officer who
laid the charge sheet against the accused, wherein the victim
who has shown the scene of crime and accordingly in the
presence of C.Ws.2 and 3, he drew the spot mahazar as per
Ex.P.3 and also drew map of scene of crime as per Ex.P.18.
Subsequently, he recorded voluntarily statement of C.Ws.1
and 5 to 8. Ex.P.4 and P.5 are said to be the medical
certificates of the victim as well as the accused. In the cross-
examination he has specifically stated that on 25.08.2015 he
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visited Jinnapur Thanda but he cannot remember the
distance between Koppal and Jinnapur Thanda but the victim
who has shown the scene of crime and he had drawn the
sketch in the presence of panch witnesses and also drew map
of scene of crime as per Ex.P.8. He has denied the suggestion
that he has laid the charge sheet to suit the purpose to help
the complainant.
11. This is the evidence which is laid by the prosecution in
order to prove the guilt of the accused. But the evidence of
P.W.1 as contemplated the statement u/S 164 of Cr.P.C.
which runs contrary to the evidence of P.W.7 wherein she was
produced before P.W.1. Ex.P.4 is the medical certificate
pertaining to accused and Ex.P.5 is the medical certificates
pertaining to the victim girl. In Ex.P.5 there is no inflicting of
external injuries found on her as well as genital area.
Therefore the evidence of P.Ws.4 and 5 run contrary to the
evidence of P.Ws.7, 8 and 11.
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12. P.W.8 and 11 have been subjected to examination for
the prosecution and at length cross-examined, but nothing
worthwhile has been elicited in their evidence for the
prosecution in order to prove the guilt of the accused coupled
with the evidence of P.W.7 said to be the victim and also
voluntarily accompanying with the accused and also stayed
for a period of 20 days with the victim in Ranebennur. The
allegation made against the accused is that he has forcible
intercourse. There are no external injuries found on her
person as well as genital area having habitual activities done
by the victim. The same is reflected in the certificate.
13. The author of Ex.P.4 certificate has been subjected to
cross examination only relating to victim. But there is no
conclusion for the prosecution to prove Exs.P.4 and Ex.P.5.
The cross-examination of P.Ws.7, 8 and 11 relating to the
incident as narrated in the complaint at Ex.P.8 and also her
statement as Ex.P.1 said to be recorded by P.W.1, who is a
responsible judicial officer. The trial Court has misdirected
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itself and misread the evidence of P.Ws.7, 8 and 11 coupled
with Exs.P.15 and 16 relating to the averments made in the
complaint Ex.P.8 as well as the medical certificate as per
Ex.P.5 said to be issued by P.W.5 relating to the victim said to
be that the accused had forcible sexual intercourse and made
her to become pregnant.
14. Therefore, upon appreciation of the entire averments,
the trial Court has erroneously come to the conclusion that
the prosecution has proved the guilt of the accused u/S 376
of IPC and erroneously held conviction for the offence u/S 6
of POCSO Act r/w Sec. 376 of IPC. Therefore, the said
judgment requires to be re-appreciated with the entire
evidence on record wherein the prosecution did not place
cogent, corroborative and acceptable evidence to hold that the
accused had sexual intercourse with her and made her to
become pregnant as narrated in the complaint as well as the
theory projected by the prosecution.
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15. Learned Govt. Pleader for the State supporting the
impugned judgment of conviction held by the Court below for
the offence u/S 6 of the POCSO Act r/w Sec. 376 of IPC as
wherein the accused who abducted the victim and made to
live with him in a room for 20 days and during that period he
had forcible sexual intercourse with her. The same has been
established in the evidence of P.Ws.7, 8 and 11, they have
stated in consonance with the statement of victim as recorded
u/S 164 of Cr.P.C. and also evidence of P.W.1, being the
responsible judicial officer, who recorded the statement of the
victim u/S 164 of Cr.P.C. which is marked as Ex.P.1.
16. P.W.16 is the D.S.P, who laid the charge sheet, he
visited the spot shown by the victim and drawn the sketch as
per Ex.P.3. P.W.15 is the PSI has taken up investigation from
P.w.16 and conducted the spot mahazaras per Ex.P.2. the
trial Court has appreciated all these materials and rightly
come to the conclusion that the prosecution has proved guilt
against the accused u/S 6 of the POCSO Act r/w Sec. 376 of
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IPC. Therefore, learned Govt. Pleader submits that there is
no interference called for in this appeal and sought to dismiss
the appeal.
17. There is no dispute that P.W.7 is less than 18 years of
age. The prosecution has projected the theory that the
accused abducted the victim from the custody of her parents
from 02.08.2015 and the victim was taken to a village nearby
Ranebennur wherein she was made to live with him for 20
days and during that period he had forcible sexual
intercourse with her. P.W.5 is the Doctor who has subjected
the victim for physical examination and issued certificate as
per Ex.P.5 wherein she had reported that there are no
external injuries on the body and genital area. Ex.P.4 is the
medical certificate issued by P.W.4, a Doctor, who has
subjected the accused for physical examination and issued
certificate as per Ex.P.4. Taking into consideration the
evidence of P.W.8 and 11 it cannot be said that the
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prosecution has proved guilt of the accused beyond all
reasonable doubt.
18. The prosecution has projected its theory that on
02.08.2015 the accused with an intention to have marriage
with the victim girl, has abducted her and took her to
Kunchur village situate at Halagoli cross, Ranebennur and
made her to confine in a room situated near the house of one
Somappa Babujan and subsequently he got married with her
in Chowdamma temple. Later they lived for 20 days in the
garden land of one Mahantesh until they are taken by Koppal
Police.
19. The prosecution has not established the guilt against
the accused relating to abduction of victim on 02.08.2015
and also made her to live in a room. P.W.7-victim said to
have been accompanied with her mother-P.W.1 wherein she
was attending the coolie work in the garden land of
Mahantesh but the victim did not attend the coolie work.
Therefore, the victim was acquainted with the accused. But,
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P.W.8 has to be stated, the father of the victim who has
specifically stated in his cross examination that his another
daughter was given in marriage to one Suresh as he being his
brother in law and also stated to be the brother of P.W.11. As
that Suresh was also residing in their house as he was
residing in the same Thanda. P.W.7-the victim who had gone
to the house of grandparents as wherein her maternal uncle
namely Suresh is also well acquainted to her. This evidence
finds place for prosecution as wherein P.W.7, 8 and 11 said to
be examined by the prosecution in order to establish the guilt
of the accused that the accused said to be abducted the
victim and also had forcible sexual intercourse with her.
20. The ingredients relating to the offence u/S 6 of the
POCSO Act and also offence u/S 376 of IPC has not been
established by the prosecution by placing cogent and
corroborative evidence. The same has been seen in the
evidence of the aforesaid P.Ws.7, 8 and 11, their evidence
which contradicted the evidence of P.Ws.15 and 16 as
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wherein P.W.16 said to be the Investigating Officer who laid
the charge sheet against the accused by conducting spot
panchanama as per Ex.P.3 which bears the signature of
P.W.2 and P.W.3.
21. P.W.15 said to be conducted spot panchanama as per
Ex.P.2, which bears the signature of P.Ws.2 and 3. But the
evidence of P.W.7 runs contrary to the evidence of P.Ws.4 and
5, said to be the Doctors who have subjected the accused the
victim for medical examination. Ex.P.5 is the medical
certificate of the victim said to be issued by P.W.5. But their
evidence which contradicts the evidence of P.W.7 said to be a
vital witness for the prosecution to prove the guilt of the
accused, that the accused had forcible sexual intercourse
with the victim-P.W.7 and made her to abduction and kept
her in the room of one Somappa situated at Kunchur village
near Ranebennur.
22. At a cursory glance of the evidence of P.W.7 relating to
abducting her by the accused on 02.08.2015 at about 11 p.m.
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and so also she has given her statement as contemplated u/S
164 of Cr.P.C. which is recorded by P.W.1 said to be the Civil
Judge & JMFC, Koppal. But the same has been contradicted
to each other. Therefore, the evidence of P.Ws.7, 8 and 11 for
the prosecution appears to be camouflage in order to prove
the guilt of the accused.
23. In totality of the circumstances of the case relating to
the abduction of the victim by the accused on 02.08.2015 at
about 11 pm, the same has not been established by the
prosecution by placing cogent and reliable evidence.
Therefore, it appears to be clouds of doubt on the theory of
the prosecution.
24. It is submitted by the learned counsel for the appellant
that the accused is in custody for a period of nearly two years
and five months. However, the same is to be termed as
service of sentence and to meet the ends of justice. The
prosecution did not place cogent, corroborative and
consistent evidence to prove that the accused had abducted
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the victim and had sexual intercourse for 20 days. P.W.7-
victim, who is a minor, her evidence runs contrary to the
evidence P.W.1.
25. Though the trial Court has acquitted the accused for the
offence u/S 363 of IPC wherein the accused was said to have
abducted the victim and also made out to confine in a room of
the garden land of one Mahantesh but held that the
prosecution has proved guilt against the accused for the
offence u/S 376 of IPC, though P.Ws.7, 8 and 11 have not
stated in their evidence confirming with the statement said to
be recorded by P.W.1, being the responsible judicial officer as
per Ex.P.1 relating to the incident as narrated by the victim.
26. Sec. 6 of the POCSO Act is a punishment clause relating
to the sexual assault but the trial Court has come to the
conclusion that the prosecution has proved guilt of the
accused u/S 376 of IPC. Therefore, it is held that the
conviction u/S 6 of the POCSO Act r/w Sec. 376 of IPC for a
period of ten years and also sentenced to fine, which is
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incorporated in the operative portion of the judgment,
Therefore, the sentence which is held against the accused is
required to be interfered in this appeal.
27. On entire reappreciation of the evidence on record, i.e.,
the evidence of the victim, evidence of P.W.1, evidence of
P.Ws.4 and 5 – Doctors and the Police Officials coupled with
the documents, i.e., medical certificates vide Exs.P.4 and P.5,
mahazars, spot panchanama, etc. do not repose confidence in
the mind of the Court in order to prove the guilt of the
accused beyond reasonable doubt. Hence, I find that the
prosecution has failed to bring home the guilt of the accused
for the offences for which he is charged beyond reasonable
doubt. The evidence of the witnesses including the victim,
creates clouds of doubt in the mind of Court to record
conviction said to be confirmed. In view of the same, the
appeal deserves to be allowed and the order passed by the
learned Sessions Judge requires to be interfered. Hence, I
proceed to pass the following order.
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ORDER
Appeal filed by the appellant-accused Somappa @
Swami u/S 374(2) of Cr.P.C. is allowed. Consequently, the
judgment passed by the learned District & Sessions Judge,
Koppal, in Spl. POCSO (S.C.) No. 35/2015 dated 14.02.2017/
15.02.2017 convicting him for the offences punishable u/S
376 of IPC and u/S 5(1) r/w Sec. 6 of POCSO Act, and
sentencing for the offence punishable u/S 6 of the POCSO Act
r/w Sec. 376 of IPC is hereby set aside. He is set at liberty
forthwith, if not required in any other case.
Fine amount, if any, paid by the appellant-accused,
shall be refunded to him on proper identification.
Registry is directed to communicate the concerned jail
authorities, as where the accused is lodging, the operative
portion of the order, for compliance.
SD/- JUDGE
bvv