SRI. SATHISH v. STATE OF KARNATAKA

Judgment

2. STATE OF KARNATAKA BY GUDIBANDE POLICE STATION, CHIKKABALLAPUR DIST-562101, REPT. BY SPP HIGH COURT OF KARNATAKA, BENGALURU-560001. RENUKA W/O. MUNIKRISHNA AGED 29 YEARS, OCC: COOLIE, R/AT: BALENAHALLI VILLAGE, GUDIBANDE TALUK, CHIKKABALLAPURA DISTRICT. (BY SRI.HARISH GANAPATHY, HCGP FOR RESPONDENT No.1. RESPONDENT NO.2 SERVED) …RESPONDENTS THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.PC BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.01.2020 AND SENTENCE DATED 08.01.2020, PASSED BY THE JUDGE, CHIKKABALLAPURA IN SPL.S.C.NO.75/2019 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(3), 506 OF IPC AND SECTION 4 AND 6 OF POCSO ACT AND ETC. I ADDITIONAL DISTRICT AND SESSIONS THIS CRL.A HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.04.2024 AND COMING ON FOR PRONOUNCEMENT JUDGMENT, THIS DAY, THE COURT THROUGH VIDEO OF CONFERENCING AT DHARWAD BENCH DELIVERED THE FOLLOWING: - 2 - CRL.A No.487 of 2020 JUDGMENT

1. This appeal is preferred by the convict against the judgment and order dated 06.01.2020 and 08.01.2020 passed by the Court of I Additional District and Sessions Judge at Chikkaballapur in Spl.S.C. No.75/2019.

2. The learned Sessions Judge vide impugned judgment has convicted the appellant for the offences punishable under Sections 376(3) and 506 of the Indian Penal Code (hereinafter referred to as ‘the IPC’, for short) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’, for short).

3. The learned Sessions Judge has acquitted the appellant of the offence punishable under Section 376(2)(i) of IPC.

I have heard the learned counsel for the appellant and the learned High Court Government Pleader for the respondent/State and perused the evidence and material on record. - 3 - CRL.A No.487 of 2020

5. It is the case of prosecution that, on 31.07.2019 at about 5:30pm, the accused, resident of Balenahalli village of Gudibande taluk, Chikkaballapur district, lured the victim child, aged about 7 years, by offering her food and took her beneath a Honge tree near the land of Ashwathamma, situated behind Government Primary School and removed her clothes and committed aggravated penetrative sexual assault on her. Further, he threatened her saying that he will kill her, if she disclosed the incident to her parents.

6. Charges were framed against the accused for the offences punishable under Sections 376(2)(i), (3) and 506 of IPC and Sections 4 and 6 of POCSO Act.

7. To establish the charges, prosecution in all examined PWs.1 to 12, got marked Exs.P-1 to P-14 and M.Os.1 to 12.

8. The defence of the accused was one of total denial, however, he did not lead any evidence on his behalf. - 4 - CRL.A No.487 of 2020

9. The learned Sessions Judge has held the accused guilty of the offences punishable under Sections 376(3) and 506 of IPC and Sections 4 and 6 of POCSO Act.

10. For the offence punishable under Section 376(3) of IPC, accused was sentenced to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo further simple imprisonment for six months.

11. For the offence punishable under Section 506 of IPC, the accused was sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.5,000/-, in default of payment of fine, to undergo further simple imprisonment for two months.

12. Assailing impugned judgment, learned counsel for the appellant/accused has vehemently contended that the prosecution has failed to establish the charges levelled against the accused beyond reasonable doubt, as there are material discrepancies in the evidence of the prosecution witnesses, which has not been considered in the proper perspective by the learned Sessions Judge. He has - 5 - CRL.A No.487 of 2020 contended there are material omissions and contradictions in the evidence of PW.1-victim child, PW.2 and PW.3-parents of the victim child and the medical evidence adduced by the prosecution. He has contended that the inordinate delay in lodging the complaint was used by the complainant to make false allegations against the accused. It is contended that the medical evidence does not support the case of prosecution and even otherwise the medical evidence is manipulated. He would further contend that the victim child was aged only 7 years according to the prosecution and if the accused has committed any offence as alleged by the prosecution, then there would have been serious injuries on the person of the victim child, on the other hand, the Doctor has stated that hymen is intact. He has, therefore contended that the reasons assigned by the learned Sessions Judge for convicting the accused are not in accordance with law and the same has resulted miscarriage of justice. He has, accordingly, sought to allow the appeal and acquit the accused.

13. The learned High Court Government Pleader has contended that the evidence of the victim child and her - 6 - CRL.A No.487 of 2020 parents, corroborated by the medical evidence clearly establish the heinous act committed by the accused. He contended that, the delay in lodging the complaint, itself, is not a ground to disbelieve the prosecution case and the complainant had no reason to file a false case against the accused. He contended that the learned Sessions Judge having appreciated the entire evidence and material on record has rightly convicted and sentenced the accused in accordance with law. He has, therefore, sought to dismiss the appeal.

14. The victim child, in this case, is aged about 7 years. She is the daughter of PWs.2 and 3. The complaint is lodged by victim’s mother-PW.2, marked as Ex.P-3. The incident is alleged to have taken place on 31.07.2019 at about 5:30pm. In Ex.P-3 it is stated that, victim child is studying in 2nd standard. On 31.07.2019, the complainant noticed injuries on her private part and therefore, she took her to a private hospital at Bagepalli and gave treatment. On

14.08.2019 at about 6:00pm, when the complainant returned to her house after coolie work, she noticed that her daughter was weeping and when she enquired with her, she - 7 - CRL.A No.487 of 2020 informed her that the accused was calling her to go along with him by offering food and similarly he had taken her behind the Government school about 15 days prior, disrobed her and committed forcible sexual intercourse and threatened her with dire consequences if she disclosed the incident to her parents. In Ex.P-3 it is stated that when the accused was taking the victim child, one Papamma wife of Narayanappa had seen them.

15. The complaint is lodged on 15.08.2019. PW.12- Police Inspector of Gudibande Police Station received the written complaint from PW.2 at about 9:00am and registered a case against the accused and issued FIR-Ex.P-11 to the Court. The victim child was sent for medical examination. On the same day, the accused was arrested and his medical examination was conducted.

16. PW.7 is the Doctor, who examined the victim child on 15.08.2019 at about 11:30am. He has deposed that, on general physical examination of the victim child, there were no external injuries, secondary sexual characters were not developed. On genital examination, abrasions of - 8 - CRL.A No.487 of 2020

0.2x0.3cms with oozing of blood at labia majora right side. Hymen was intact. The report given by PW.7 is marked as Ex.P-6. He collected the scalp hair, nail clippings, valval swabs, vaginal swabs, vaginal smear marked as M.Os.1 to 8 for FSL examination. He has stated that, as per FSL report, there is no sexual intercourse.

17. It is the specific case of the prosecution that the victim child was aged about 7 years at the time of the incident. On 31.07.2019, the accused lured her by offering food and took her behind the Government Primary School, beneath a tree situated near the land of one Ashwatamma and committed aggravated penetrative sexual assault on her and then threatened to kill her, if she disclosed the incident to her parents.

18. The defence has not seriously disputed the age of the victim child. The prosecution has examined PW.9 working as a teacher at Government Higher Primary School, Balenahalli, who has issued Ex.P-10-School admission certificate pertaining to the victim child. The date of birth of the victim child is mentioned as 11.02.2012. The said - 9 - CRL.A No.487 of 2020 certificate has been issued by PW.9 based on the School Admission Register. The victim child having been admitted to the said school for her primary education, there is no room to entertain any doubt regarding the age of the victim child. Besides, the prosecution has got marked Ex.P-12-age confirmation letter and Ex.P-13-radiology report, which confirm that the victim child was aged between 6-7 years.

19. The victim child is examined as PW.1. The learned Sessions Judge while appreciating her evidence has relied on the decision of the Hon’ble Apex Court in Dattu Ramarao Sakhare v. State of Maharashtra reported in 1997 (5) SCC 341, wherein it is held that, a child witness if found competent to depose to the facts which is reliable on such evidence, could be the basis for conviction. In other words, even in absence of oath, the evidence of a child witness can be considered under Section 118 of the Indian Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof.

20. The learned Sessions Judge has relied on a decision of the Hon’ble Apex Court in Panchi v. State of UP - 10 - CRL.A No.487 of 2020 reported in AIR 1999 SC 2726 wherein it is held that, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that, evidence of child witness must be evaluated more carefully and with greater circumspection because a child susceptible to be swayed by what others tell them and thus child witness is an easy prey to tutoring.

21. The learned Sessions Judge has also taken into consideration the provisions under Sections 29 and 30 of POCSO Act and held that in the instant case, the evidence of child witness is trustworthy and her evidence is supported by the medical evidence. There is no contrary material to disbelieve the version of the prosecution and the victim’s evidence. There is no probable material placed by the accused to show that there was a civil dispute between the accused and the family of the victim child, for which, a false complaint was filed. It is further observed that, no parents would go to the extent of ruining the life of their children for the said reasons. The learned Sessions Judge has observed that the evidence of PWs.1 to 3 are consistent, corroborative and reliable. - 11 - CRL.A No.487 of 2020

22. Insofar as the delay in lodging the complaint is concerned, the learned Sessions Judge has observed that on noticing the injury on the private part of her daughter on

31.07.2019, PW.2 kept quite thinking that something is happened. Again on 14.08.2019, when the accused called the victim child, which was informed by her to her mother, she realized that the injury on the private part of the victim child was due to penetrative sexual assault by the accused and thereafter complaint was filed. Further, the victim child has stated that the accused threatened her that, if the incident is disclosed to her parents, he would kill them. The learned Sessions Judge, has, therefore, come to the conclusion that under the circumstances, delay does not create any doubt in the case of the prosecution.

23. In the case on hand, the material witness is PW.1, the victim child. It is well settled that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to tutoring. The evidence of a child witness and credibility, - 12 - CRL.A No.487 of 2020 therefore, would depend upon the circumstances of each case.

24. The incident in question is alleged to have taken place on 31.07.2019 at about 5:30pm. As per Ex.P-3, the victim sustained injuries on her private part and she was taken to a private hospital at Bagepalli and given treatment. It is clearly stated in Ex.P-3 that the wound was healed completely. Though PW.1 in her deposition has stated that her mother took her to the hospital and she was given treatment, PW.2-complainant in her evidence has not stated that the victim was taken to the hospital for treating the injuries sustained on her private part. In the cross- examination, PW.2 has admitted that she has not given any document to the police regarding the treatment provided to her daughter. PW.3-father of the victim admitted in the cross-examination that he was informed by PW.2 on

31.07.2019 that their daughter had sustained injuries on her private part and therefore, she took her to a private hospital at Bagepalli. He has admitted in the cross-examination that the wound was completely healed. - 13 - CRL.A No.487 of 2020

25. PW.1 has deposed that the accused by offering her food, took her behind the Government School and then removed her clothes and slept on her. He threatened her stating that if she disclosed the incident to her mother, she will be killed. She has stated that she sustained injury on her private part. Her mother took her to the hospital and given treatment. The Doctor gave ointment and the wound was healed.

26. In Ex.P-3-complaint, is stated that one Papamma wife of Narayanappa saw the accused taking the victim child. It is stated that said Papamma informed the complainant-PW.2 about the accused taking the victim child. In the cross-examination of PW.2, she has denied the suggestion made by the defense that Papamma has not informed her about the same but she admitted that they did not lodge any complaint immediately after the same was disclosed by Papamma. It is, therefore, contended by the learned counsel for the accused that if any such incident as alleged was committed and if it was disclosed to PW.2 by Papamma, then complaint would have been lodged immediately. He contended that Papamma, who is examined - 14 - CRL.A No.487 of 2020 as PW.4, has denied having seen the accused taking the victim behind the school. Therefore, it is contended that the entire allegations are false and the evidence of the prosecution witnesses are not trustworthy.

27. Papamma wife of Narayanappa, examined as PW.4, has not supported the case of prosecution. However, the entire case of the prosecution cannot be disbelieved merely because PW.4 has turned hostile. It is necessary to evaluate the evidence of PW.1 and her parents examined as PWs.2 and 3 carefully to unearth as to what extent their evidence could be believed to bring home the guilt of the accused. The duty of the Court is to elicit the truth by appreciating the entire evidence and material in the right perspective.

28. The defence has not proved that there was any enmity for the complainant or her family members to falsely implicate the accused. The delay in setting the law into motion is also not a ground to disbelieve the entire case of the prosecution, in a case of this nature. - 15 - CRL.A No.487 of 2020

29. It is relevant to see that, according to the prosecution, due to the sexual assault committed by the accused, the victim child sustained certain injuries and she was taken to a private hospital for treatment. However, there is no medical records forthcoming to show as to what was the injury sustained and what was the treatment given to the victim child. No medical documents are produced. The Doctor, who examined and treated the victim child on

31.07.2019 is also not examined.

30. PW-7 is the Medical Officer, who examined the victim child on 15.08.2019, which is after 15 days from the date of incident. He has stated that the victim child was brought with a history of sexual assault. On general physical examination, he found there were no external injuries. On genital examination, abrasion of 0.2x0.3cms with oozing of blood at labia majora right side. He has stated that the history was given by the mother stating that ‘the accused has raped the victim child on 31.07.2019. The victim child was playing in the school, accused went there and took her to the land behind the school and sexually assaulted her and threatened to kill her if same is disclosed to anybody.’ - 16 - CRL.A No.487 of 2020

31. Ex.P-3 is the written complaint lodged by PW.2. The victim child is stated to have disclosed the incident which took place on 31.07.2019 to her on 14.08.2019. In her deposition, PW.2 has stated that, the accused took her daughter behind the school, removed her clothes and slept on her. She has further deposed that Papamma (PW.4) saw the accused taking the victim child behind the school and after she returned from work, when she enquired with the victim, she informed her that the accused took her and removed clothes. She has not stated about the accused committing penetrative sexual assault on the victim child. According to PW.2, after Papamma informed her about the incident she kept quiet.

32. The victim is aged only 7 years. If there was any penetrative sexual assault on her, there would have been serious injuries on her private part. There is no material, except the oral evidence, to show that on 31.07.2019, the victim child was provided any treatment by a private doctor for the injuries sustained on her private part. Be that as it may, both PWs.1 and 3 have stated that, after their daughter - 17 - CRL.A No.487 of 2020 was treated, the wound was healed. Hence, the evidence of PW.7 who has stated that, ‘on genital examination, he noticed abrasion of 0.2x0.3 cms with oozing of blood on labia majora right side’ gives rise to a doubt in the mind of the Court, as to whether the said injury was on account of penetrative sexual assault committed on the victim child on

31.07.2019. In his report-Ex.P-6, PW.7 has stated that hymen was intact. In the alleged history mentioned in Ex.P- 6, it is clearly stated that the mother gives history of noticing wound (UÀļÉî) i.e. boils in the genital area on 31.07.2019 and got it treated in a private hospital at Bagepalli.

33. Ex.P-7 is the FSL report, as per which seminal stains and spermatozoa were not detected in the articles sent for examination. PW.7 has stated that as per FSL report, there is no sexual intercourse. Hence, the FSL report is not helpful to the prosecution.

34. PWs.5 and 6 are the panchas to the spot mahazar-Ex.P-4. They have turned hostile and not supported the case of the prosecution. PW.8 is the Doctor who examined the accused and issued potency certificates-Exs.P- - 18 - CRL.A No.487 of 2020 8 and 9. PWs.10 and 11 are the police witnesses who assisted PW.12 in the investigation.

35. On a careful examination of the entire evidence and material on record, this Court is of the considered view that the prosecution has not established beyond reasonable the accused has committed aggravated penetrative sexual assault or rape on the victim child. The evidence and material on record fall short of the ingredients to be established to convict the accused for the offences punishable under Sections 4 and 6 or Section 376(3) of IPC. However, from the evidence of PW.1, there is no hesitation to hold that, the accused committed an act which involves physical contact with her, without penetration and therefore, committed sexual assault as defined under Section 7 of the POCSO Act, 2012. The victim child being aged below 12 years, the accused has committed aggravated sexual assault, in view of Section 9(m) of the said Act. The prosecution has therefore, established that the accused has committed aggravated sexual assault on the victim child and criminally intimidated her by giving threat to cause death, if the matter was disclosed to her parents. - 19 - CRL.A No.487 of 2020

36. The punishment provided under Section 10 for committing an offence under Section 9 of POCSO Act is imprisonment of either description for a term which shall not be less than 5 years but which may extend to 7 years and shall also liable to fine.

37. In the case of State of Madhya Pradesh v. Babulal reported in AIR 2008 SC 582, the Hon’ble Apex Court keeping in mind the interest of the victim of the crime and the impact on the society, has held that, “In justice delivery system, sentencing is indeed a difficult and complex question. Every Court must be conscious and mindful of proportion between an offence committed and penalty imposed as also its impact on the society in general and the victim of the crime in particular.”

38. In State of Madhya Pradesh v. Najab Khan and others reported in 2013(9) SCC 509 it is held that, the punishment should meet the gravity of the offence committed by the accused and Court should not show undue sympathy with the accused person. - 20 - CRL.A No.487 of 2020

39. In the case on hand, accused is under incarceration from the date of his arrest, i.e., 16.08.2019. Keeping in view the age of the victim, the sentence of 7 years imprisonment would serve the ends of justice for the offence under Section 9 punishable under Section 10 of the POCSO Act.

40. For the foregoing reasons, I proceed to pass the following : ORDER The appeal is allowed in part. The judgment and order dated 06.01.2020 and

08.01.2020 passed by the Court of I Additional District and Sessions Judge, Chikkaballapur in Spl.SC No.75/2019 convicting and sentencing the appellant/accused for the offence punishable under Section 376(3) and Sections 4 and 6 of the POCSO Act is set aside. The accused/appellant is convicted for the offence under Section 9 read with Section 10 of the POCSO Act. He is sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.10,000/- for - 21 - CRL.A No.487 of 2020 the offence under Section 9 read with Section 10 of the POCSO Act, in default of payment of fine, shall undergo simple imprisonment for a period of six months. The conviction and sentence imposed on appellant/accused for the offence punishable under Section 506 of IPC is confirmed. The rest of the order passed by the learned Sessions Judge including that of awarding compensation to the victim shall be intact. Sd/- JUDGE ct:vh