MANJU v. WOMEN POLICE STATION

This appeal is filed praying to set aside the judgment of conviction dated 05.02.2019 and order of sentence dated 06.02.2019 passed in S.C. No. 63/2018 by the II Additional District and Sessions Judge and Special Judge, Davanagere.

Appellant - accused has been convicted for offence under Sections 363 and 376 of IPC and Section 6 of the POCSO Act. The appellant - accused has been sentenced to undergo rigorous imprisonment for a period of 5 years and to pay fine of Rs.15,000/- for offence under Section 363 of IPC. The appellant - accused is further sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.20,000/- for offence punishable under Section 6 of the POCSO Act. The learned Special Judge has not passed any separate order of sentence for offence under Section 376 of IPC. The learned Special Judge has ordered all the sentences to run concurrently. - 3 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019

The factual matrix of the prosecution case is that earlier to 07.01.2018 the appellant - accused used to talk with P.W.2 – victim girl saying that he is in love with her and also asked her to fall in love with him. On

07.02.2018, at about 12.30 noon, when P.W.2 was in her house, the appellant - accused came there and asked her to come with him and also threatened her that he will kill her if she does not come with him and kidnapped her without her consent and permission of her parents and took her to the house of his grandfather situated at Balaji Nagara, Bengaluru and during his stay in the said house, the appellant – accused, knowing that P.W.2 is a minor girl, had committed an act of forcible sexual intercourse on her repeatedly. Charge sheet came to be filed against the appellant - accused for offence under Sections 363, 506 and 376 of IPC and Section 6 of the POCSO Act. The Special Court framed charge against appellant - accused for the said offences. In order to prove the charge the prosecution examined P.W.1 to P.W.27 and got marked Ex.P.1 to Ex.P.19 and M.O. 1 to M.O. 13. Statement of the - 4 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 appellant - accused came to recorded under Section 313 of Cr.P.C. The Special Court after hearing arguments on both sides, appreciating the evidence on record, after formulating points for consideration, has convicted the appellant - accused for offence under Sections 363 and 376 of IPC and Section 6 of the POCSO Act and acquitted for offence under Section 506 of IPC. Said judgment of

conviction and order of sentence has been challenged in this appeal.

Heard learned counsel for appellant - accused and learned HCGP for the respondent – State.

Learned counsel for appellant - accused would contend that the age of the victim girl has not been proved and Ex.P.8 – birth certificate issued by P.W.10 will not establish her age. He contended that the Investigating Officer has not collected her school records to corroborate her age as mentioned in her birth certificate. The Investigating Officer has not got conducted the ossification test to ascertain the age of the victim girl. He further contends that on perusal of the evidence of P.W.2 – the - 5 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 victim girl it is clear that she voluntarily went along with the appellant - accused to Balaji Nagar, Bengaluru and insisted him to marry her and after marriage she consented for sexual intercourse. He contends that on considering the evidence of P.W.2 there is no fault of this appellant – accused. He further submits that the appellant - accused has already undergone the sentence and he is in custody for more than 5 years and taking consideration the same and also the evidence of P.W.2 – victim girl he prayed for reducing the sentence for offence under Section 6 of the POCSO Act. He placed reliance on the following decisions: i. Dilip @ Papa and others Vs. State of Karnataka, Crl.A. No. 1895/2018 decided on

15.03.2023 ii. Sk. Hasibul Vs. State of West Bengal, 2022 Crl.L.J. 4056 (Calcutta High Court) iii. Armishal L.Marshillong Vs. State Meghalaya and others 2022 Crl.L.J. 4327 (Meghalaya High Court) - 6 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 iv. Mekala Shiva Vs. State of Telangana 2022, Crl.L.J. 3376 (Telangana High Court). With this he prayed to allow the appeal.

Per contra learned HCGP would argue that the Special Court on proper appreciation of the evidence on record has rightly convicted the appellant - accused. He supports the reasons assigned by the trial Court. He further argued that the DNA report will establish that the appellant - accused is the biological father of the fetus of the victim girl and it proves that he had sexual intercourse with the victim girl. He contends that even though the victim girl has given her consent, as she is aged below 18 years, her consent is no consent in the eye of law. With this he prayed to reject the appeal.

On the grounds made out and arguments advanced, the following points arise for my consideration. i. Whether the trial Court erred in convicting the appellant - accused for offence under - 7 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 Sections 363 and 376 of IPC and Section 6 of the POCSO Act? ii. Whether there are any grounds for reducing the sentence for offence under Section 6 of the POCSO Act?

P.W.2 – victim girl was found missing from her house on 07.01.2018 and her mother – P.W.1 has filed a complaint – Ex.P.1 which came to be registered for offence under Section 363 of IPC arraigning the appellant - accused as accused in the FIR. The appellant - accused and the victim girl were secured. Statement of the victim girl has been recorded by the Investigating Officer and also under Section 164 of Cr.P.C. which is at Ex.P.6. The victim girl in Ex.P.6 has stated that she is pregnant of 4 months. The victim girl has been aborted as per orders of this Court by P.W.27 – Medical Officer of Vanivilasa Hospital. Said fetus, blood samples of appellant - accused and victim girl were sent for DNA test. P.W.26 has issued DNA report which is at Ex.P.17. In Ex.P.17 it is stated that the appellant - accused is the biological father of the fetus - 8 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 removed from the victim girl. P.W.2 – victim girl in her evidence has deposed that her date of birth is 18.10.2002 and she had acquaintance with the appellant - accused and she went along with him on 07.01.2018 to Bengaluru and stayed there for a week and after marriage went to Balaji Nagara, Bengaluru and in the house of grandfather of the appellant - accused they had sexual intercourse with consent and she became pregnant. Even victim girl has admitted of giving her statement under Section 164 of Cr.P.C. as per Ex.P.6. Evidence of victim girl, her statement recorded under Section 164 of Cr.P.C. - Ex.P.6, DNA report will establish that the appellant - accused had sexual intercourse with the victim girl.

P.W.2 – victim girl has deposed that her date of birth is 18.10.2002. Ex.P.8 is the birth certificate issued by P.W.10 who is the Registrar of Births and Deaths, Davanagere. In Ex.P.8 – birth certificate the date of birth of the victim girl is mentioned as 18.10.2002. The place of birth of victim girl as mentioned in Ex.P.8 is CG Hospital, Davanagere. P.W.1 – mother of the victim girl has - 9 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 deposed that her daughter – victim girl was born in CG Hosiptal, Davanagere. The evidence of victim girl that her date of birth is 18.10.2002 has not been denied in the cross-examination. The Registrar of Births and Deaths is a competent authority to record and maintain the date of birth and issue birth certificate. The aforesaid evidence will establish that the date of birth of victim girl is 18.10.2002 and she is aged below 18 years as on the date of offence.

Even though P.W.2 in her evidence has stated that she on her on went along with the appellant - accused and gave consent for sexual intercourse, it cannot taken into consideration since the victim girl is under the age of 18 years. Therefore, the evidence on record will establish that the appellant - accused has committed an offence under Section 6 of the POCSO Act.

Learned counsel for appellant – accused, placing reliance on the judgment of a coordinate Bench of this Court rendered in the case Dilip @ Papa and others Vs. State of Karnataka, Crl.A. No. 1895/2018 decided on 15.03.2023, would contend that the Court has - 10 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 reduced the sentence from 10 years to 7 years for offence under Section 376 of IPC and Section 6 of the POCSO Act.

The offence for which the appellant - accused is convicted and sentenced is under Section 6 of the POCSO Act wherein the minimum sentence is imprisonment for 10 years. Therefore, the said judgment is not of much avail to the appellant - accused.

Learned counsel for appellant - accused placing reliance on the decision of the Calcutta High Court in the case of Sk. Hasibul Vs. State of West Bengal, 2022 Crl.L.J. 4056 would contend that if the victim girl has given consent, then the appellant - accused is not liable for offence under Section 376 of IPC. In the said case the victim girl was not a minor (not under the age of 18 years). Therefore, the said decision will not apply to the facts of the present case.

Learned counsel for appellant - accused placing reliance on the judgment of Meghalaya High Court in the case of Armishal L.Marshillong Vs. State of Meghalaya and others reported in 2022 Crl.L.J. 4327 - 11 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 contended that the Court has reduced the sentence from 20 years to 15 years for offence under Section 376(2) of IPC.

The minimum sentence for offence under Section 376(2) of IPC is 10 years and therefore, in the aforesaid case the High Court, exercising discretion has reduced the sentence which is not below the minimum sentence. In the case on hand the sentence imposed on the appellant - accused for offence under Section 6 of POCSO Act is minimum sentence, i.e., imprisonment for 10 years.

Learned counsel for appellant - accused placing reliance on the decision of the Telangana High Court in the case of Mekala Shiva Vs. State of Telangana, reported in 2022 Crl.L.J. 3376 contended that the prosecution has failed to prove that the victim girl is below the age of 18 years as no ossification test is conducted.

In the said case there was no hospital record or municipal record and therefore, ossification test was conducted and the High court giving margin of error of two - 12 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 years for the age estimation in ossification test has held that the prosecution has failed to prove that the victim girl was aged less than 18 years. In the case on hand, age of the victim girl has been proved by producing birth certificate issued by the Registrar of Births and Deaths, Davanagere which is at Ex.P.8. Said document – Ex.P.8 is a conclusive proof of the age of the victim girl.

The minimum sentence provided for offence under Section 6 of the POCSO Act is 10 years as on the date of the offence, i.e., 07.01.2018, i.e., prior to the Amendment Act No. 25/2019. When the minimum sentence is fixed for an offence the Courts have no discretion to award sentence lesser than the minimum sentence even though there are grounds to take a lenient view in the matter. The Special Court/trial Court has imposed only the minimum sentence, i.e., imprisonment for a period of 10 years for offence under Section 6 of the POCSO Act.

The appellant - accused has also been convicted for offence under Section 363 of IPC. As per Ex.P.8 the - 13 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 date of birth of the victim girl is 18.10.2002. As on the date of offence, i.e., 07.01.2018 she is aged less than 18 years.

Section 361 of IPC defines offence of kidnapping from lawful guardianship and Section 363 of IPC provides for punishment for kidnapping. Section 361 of IPC reads thus:

Kidnapping lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

The victim girl is under the age of 18 years and a female. Even though she has stated that she on her own went with this appellant – accused it will not absolve the appellant - accused from offence under Section 361 of IPC punishable under Section 363 of IPC. The appellant - - 14 - NC: 2024:KHC:2061 CRL.A No. 375 of 2019 accused has taken the victim girl out of the keeping of the lawful guardian without the consent of such guardian. Therefore, the said act of the appellant - accused amounts to kidnapping such a minor from lawful guardianship. Considering the said aspect, the Special Court/trial Court is right in convicting the appellant - accused for offence under Section 363 of IPC. Considering all these aspects there are no grounds for setting aside the judgment of conviction and order of sentence passed by the Special Court/trial Court. Hence, the Court answers point Nos.1 and 2 accordingly and passes the following;

O R D E R Appeal is dismissed. In view of dismissal of the appeal, I.A. No. 2/2023 filed seeking suspension of sentence does not survive for consideration and accordingly, it is dismissed. LRS List No.: 1 Sl No.: 38 Sd/- JUDGE