SIDDARAJU @ SIDDANAYAKA v. STATE

This appeal is filed by the sole accused praying to set aside the judgment of conviction and order on sentence dated 04.05.2019 passed in Spl.C. No. 201/2018 by the VI Additional District and Special Judge, Mysuru, whereunder this appellant - accused has been convicted for offence under Section 376(2)(l) read with Section 511 of IPC and Section 5(k) read with Section 18 of the POCSO Act and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.30,000/- for offence under Section 5(k) read with Section 18 of the POCSO Act and no separate sentence has been passed for offence under Section 376(2)(l) read with Section 511 of IPC in view of Section 42 of the POCSO Act.

Factual matrix of the case is, that P.W.1 – uncle

of the victim girl has filed first information stating that on

24.01.2018 when he returned to house, he heard the babbling of his brother’s disabled daughter – victim girl - 3 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 from the backyard of the house. He went there and found that appellant - accused was holding the victim girl from back side and was making attempt to commit sexual act on her. He scolded the appellant - accused and rescued the victim. The victim girl is disabled, dumb and dullard and is not in a position to speak and express any acts. Said complaint filed by P.W.1 came to be registered in crime No. 5/2018 of Heggadadevana Kote Police Station for the aforesaid offences. After investigation, charge sheet has been filed and charge has been framed against the appellant - accused. The prosecution, in order to prove the charge, has examined 5 witnesses as P.W.1 to P.W.5 and got marked Ex.P.1 to Ex.P.15 and M.O.1 and M.O.2. Statement of the appellant - accused came to be recorded under Section 313 of Cr.P.C. The trial Court, after hearing arguments on both sides, formulated points consideration and after appreciating evidence on record has convicted the appellant - accused for the aforesaid offences. Said judgment of conviction and order on - 4 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 sentence has been challenged by the appellant - accused in this appeal.

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

Learned counsel for appellant - accused would contend that the evidence on record is not sufficient to convict the appellant - accused for offence under Section 5(k) read with Section 18 of POCSO Act and 376(2)(l) read with Section 511 of IPC. The alleged recording of the act of appellant - accused by P.W.1 is not in his mobile and copying the said video clip in a CD by P.W.3 is not confronted to P.W.1 with the said M.O.1 – mobile and M.O.2 – CD. There is no certificate issued as required under Section 65-B of the Evidence Act by P.W.3 who is stated to have transferred the video clipping from the mobile (M.O.1) to the CD (M.O.2) and certificate Ex.P.7 – stated to be under Section 65-B of the Evidence Act does not comply with the provisions of Section 65-B of the Evidence Act. The appellant - accused has not been examined to ascertain whether he is having the capacity - 5 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 for sexual intercourse. The Doctor who examined the victim girl, i.e., P.W.5 in report – Ex.P.9 has noted that hymen of the victim girl is intact and there is no evidence suggestive of sexual intercourse. P.W.3 who is stated to have watched the video and transferred the video to CD has identified the victim girl who is not known to her. The Doctor who gave age estimation as per Ex.P.8 has not been examined. P.W.1 who has filed complaint has not stated about he recording the alleged act in his mobile phone in the complaint. Considering the evidence of P.W.1 and on watching the video clipping contained in M.O.2, at the most, offence under Section 9(k) read with Section 10 of the POCSO Act would be attracted and punishment provided for the same is, imprisonment of either description for a term which shall not be less than 5 years but which may extend to 7 years and also fine. He contends that the appellant - accused has already undergone imprisonment for 6 years 6 months and prays for imposing sentence for the said offence to the period of imprisonment already undergone by the appellant - - 6 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 accused. Learned counsel for appellant - accused further submits that M.O.1 – mobile phone does not belong to P.W.1 and it belongs to some other person. With this, he prayed to allow the appeal.

Learned HCGP appearing for respondent – State submits that the trial Court on appreciating the evidence has rightly convicted the appellant - accused for the offences charged against him. Evidence of P.W.1 coupled with the contents of M.O.1 and M.O.2 will establish the charge alleged against him. The victim girl is disabled and is not able to speak and therefore, she has not been examined. There is no necessity of certificate under Section 65-B of the Evidence Act as instrument in which the video is recorded itself is produced as M.O.1 – mobile phone. The contents of mobile phone have been copied by P.W.3 in M.O.2 – CD. Both M.O.1 and M.O.2 are before the Court. He supports the reasons assigned by the trial Court. With this he prayed to dismiss the appeal. - 7 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019

Having heard learned counsel for the parties, on perusal of the grounds urged and points canvassed the following points arise for consideration. i. Whether the trial Court erred in convicting the appellant - accused for offence 376(2)(l) read with Section 511 of IPC and Section 5(k) read with Section 18 of the POCSO Act? ii. Whether the evidence on record will establish that the appellant - accused has committed offence under Section 9(k) read with Section 10 of the POCSO Act and the said offence is a minor offence than the offence charged against him?

My answer to the above questions is in the affirmative for the following issues: The appellant - accused has been charged for commission of offence 376(2)(l) read with Section 511 of IPC and Section 5(k) read with Section 18 of the POCSO Act. Said provisions read thus: “376(2)(l) commits rape on a woman suffering form mental or physical disability; or” - 8 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019

511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.- Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this code for the punishment of such attempt, to punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.

“5. Aggravated penetrative sexual assault (k) Whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child; or”

18. Punishment for attempt to commit an offence. Whoever attempts commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, - 9 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.

The charge against appellant - accused attempted to commit penetrative sexual assault on a child who is mentally and physically disabled. Considering the points urged, the points that arises for consideration is, whether the appellant - accused has attempted to commit penetrative sexual assault on the child who is mentally and physically disabled?

Penetrative sexual assault has been defined under Section 3 of the POCSO Act which reads thus:

3. Penetrative sexual assault A person is said to commit "penetrative sexual assault" if-- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or - 10 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

Rape has been defined under Section 375 of IPC which reads thus: “375. Rape.-- A man is said to commit "rape" if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; (b) inserts, to any extent, any object or a part of - 11 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man - 12 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, is unable understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under eighteen years of age. Seventhly.- When she is unable to communicate consent.

Attempt to commit an offence under Section 377b(2)(l) of IPC and Section 9(k) of POCSO Act is made out by the evidence of prosecution is required to be considered. For considering the said aspect evidence of P.W.1 coupled with evidence of P.W.5 – the Doctor who examined the victim girl requires consideration.

P.W.1 is the uncle of the victim girl. In his evidence P.W.1 has deposed that he witnessed the - 13 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 incident by peeping into a window where he saw the appellant - accused hugging the victim girl from behind and attempted to commit sexual intercourse. He further deposed that at that time with a mobile phone he has recorded the said act of the appellant - accused. Said mobile phone is seized under mahazar – Ex.P.1 by P.W.4. The contents of the said mobile containing the video clip was copied by P.W.3 – Police Constable into a CD and the said CD is at M.O.2. Even though Ex.P.7 – certificate does not comply with the provisions of Section 65-B of the Evidence Act, the mobile phone itself is on record at M.O.1. P.W.3 is stated to have copied the said video clipping from M.O.1 – mobile phone to CD which is at M.O.2. Said video clipping contained in the mobile – M.O.1 is a primary evidence and for that evidence, there is no need of certificate under Section 65-B of the Evidence Act. The contents of video clipping contained in M.O.1 – mobile phone and M.O.2 – CD will corroborate the testimony of P.W.1 with regard to appellant - accused hugging the victim girl from her back side. Whether the said act of - 14 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 hugging the victim girl from her back side amounts to attempting to commit offence under Section 376(2)(l) of IPC and Section 5(k) of the POCSO Act?

This Court has also secured M.O.1 – mobile phone and M.O.2 – CD and also watched the contents of M.O.2 – CD. The victim girl was wearing clothes and so also the appellant - accused at the time of the incident. The video clipping also show that this appellant - accused hugged the victim girl from behind and at that time also the victim girl was wearing her clothes so also the appellant - accused. Said aspect itself clearly goes to show that the appellant - accused has not attempted to commit penetrative sexual assault as defined under Section 3 of POCSO Act and Section 375 of IPC. Said act of the appellant - accused amounts to sexual assault as defined under Section 7 of the POCSO Act. Section 7 of the POCSO Act reads thus:

Section 7. sexual assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the - 15 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 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 to commit sexual assault.

The appellant – accused, with sexual intent, hugged the victim girl from behind and that involved physical contact without penetration. Said act of the appellant – accused, i.e., sexual assault is aggravated sexual assault as the victim girl is having physical and mental disability.

Ex.P.13 is a certificate issued by the Tahsildar, Heggadadevanakote wherein it is certified that the victim girl has been granted disability pension as she is suffering from physical and mental disability.

Ex.P.8 is the age estimation certificate wherein the Doctor who examined the victim girl has certified that her age is between 16 to 17 years.

The Doctor who examined the victim girl, i.e, P.W.5 in her report – Ex.P.9 has noted that hymen of the victim girl is intact and in her final opinion has opined that - 16 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 there is no evidence suggestive of sexual intercourse. In Ex.P.4 – FSL certificate, after examining the vaginal swab, vaginal smear, pubic hair, kurta top, leggings of the victim girl and underwear and baniyan of the appellant - accused, it is opined that seminal stains were not detected in those articles and spermatozoa was not detected in article 2 – i.e., vaginal smear. Considering the said reports it cannot be said that the appellant - accused has attempted to commit offence under Section 5(k) of the POCSO Act and Section 376(2)(l) of IPC. The trial Court has erred in convicting the appellant - accused for offence under Section 5(k) read with Section 18 of the POCSO Act and Section 376(2)(l) read with Section 511 of IPC. Evidence on record will attract offence under Section 9 read with Section 10 of POCSO Act which is a minor offence to the offence charged against the appellant - accused i.e., Section 5(k) read with Section 18 of the POCSO Act and Section 376(2)(l) read with Section 511 of IPC. Therefore, in the absence of charge for the said offence under Section 9 read with Section 10 of POCSO Act, the appellant - - 17 - NC: 2024:KHC:28391 CRL.A No. 1382 of 2019 accused can be convicted for the said offence in view of Section 222 of Cr.P.C. Punishment provided for offence under Section 10 of the POCSO Act is imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. The appellant - accused has already undergone sentence for 6 years 6 months. Therefore, he is liable to be sentenced for the period of imprisonment already undergone by him for offence under Section 9(k) read with Section 10 of the POCSO Act.

In view of the above, the points are answered accordingly.

In the result, the following;