Criminal Appeal No. 1466 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1466 OF 2024 (C) BETWEEN: MR. CHETHAN .D S/O DEVARAJ AGED ABOUT 22 YEARS RESIDING AT NO.54/54A F.F. LAYOUT, LAGGERE BENGALURU - 560 058. PRESENTLY RESIDING AT NO.141, 4TH MAIN, 50TH CROSS CHOWDESHWARINAGAR NEAL POLICE CHOWKI LAGGERE BENGALURU - 560 058 (BY SRI: M.T. NANAIAH, SR. ADVOCATE FOR SRI. PRABHUGOUD .B. TUMBIGI, ADVOCATE) …APPELLANT Digitally signed by NANDINI B G Location: High Court of Karnataka AND: 1. STATE OF KARNATAKA NANDINI LAYOUT POLICE STATION BENGALURU - 560 058. REPRESENTED BY ITS SPP HIGH COURT OF KARNATAKA BANGALORE - 560 001. 2. SMT. BHUVANA W/O HARISH AGED ABOUT 27 YEARS RESIDING AT NO.54/54A F.F. LAYOUT, LAGGERE BENGALURU - 560 058 (BY SMT: RASHMI JADHAV, ADDL. SPP FOR R1 R2 - SD) …RESPONDENTS - 2 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION DATED 01.07.2024 PASSED BY THE LEARNED FTSC-1 ADDL. CITY CIVIL AND SESSION JUDGE, BENGALURU IN SPL.C.C.NO.1364/2021 AND CONSEQUENTLY ACQUIT THE ACCUSED/APPELLANT OF THE CHARGES UNDER SEC.4, 6, 8 OF POCSO ACT; THE ACCUSED IS CONVICTED AND SENTENCED TO UNDERGO IMPRISONMENT FOR 20 YEARS AND SHALL ALSO LIABLE TO PAY FINE OF RS.50,000/- AND IN DEFAULT OF FINE HE SHALL UNDERGO S.I FOR SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 4 OF POCSO ACT; FURTHER THE ACCUSED IS ALSO CONVICTED AND SENTENCED TO UNDERGO R.I FOR 20 YEARS AND SHALL ALSO LIABLE TO PAY FINE OF RS.50,000/- AND IN DEFAULT OF FINE HE SHALL UNDERGO R.I FOR SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 6 OF POCSO ACT; FURTHER THE ACCUSED IS ALSO CONVICTED AND SENTENCED TO UNDERGO IMPRISONMENT FOR 3 YEARS AND SHALL ALSO LIABLE TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO IMPRISONMENT FOR THREE MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 8 OF POCSO ACT; CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE ALL THE SENTENCES SHALL RUN CONCURRENTLY AND THE APPELLANT PRAYS THAT HE BE ACQUITTED. THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT The accused in Special Case No.1364 of 2021 on the file of the learned FTSC-I, Additional City Civil and Sessions Judge, - 3 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR Bengaluru, is impugning the judgment of conviction and order of sentence dated 01.07.2024 convicting the accused for the offences punishable under Sections 4, 6 and 8 of POCSO Act and sentencing to undergo imprisonment for a period of 20 years and to pay fine of Rs.50,000/- each for the offences punishable under Sections 4 and 6 of POCSO Act; to undergo imprisonment for a period of 3 years and to pay fine of Rs.10,000/- for the offence punishable under Section 8 of POCSO Act, with default sentences. 2. Brief facts of the case as made out by the prosecution is that, the accused being the neighbor of victim girl, took the victim aged 3 years to his room on 07.07.2021 at 6.00 p.m. and inserted his finger on her vagina and thereby committed aggravated penetrative sexual assault punishable under Sections 4, 6 and 8 of POCSO Act. The mother of the
Legal Reasoning
victim girl lodged the first information as per Ex.P1. The victim was subjected to examination by the lady doctor - PW9 who gave the medical report as per Ex.P6 suggesting that there was a scratch mark in the vagina of the victim girl suggesting digital interference. Thus, the investigation was completed and the charge sheet came to be filed for the above said offences. - 4 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR 3. The Trial Court took cognizance of the offences and summoned the accused. The accused denied the charges leveled against him and claimed to be tried. The prosecution examined PWs.1 to 10, got marked Exs.P1 to P20 in support of its contention. The accused has denied all the incriminating materials available on record, but has not chosen to lead any evidence in support of his defence. The Trial Court after taking into consideration of all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused for the offences punishable under Sections 4, 6 and 8 of POCSO Act and accordingly, convicted and sentenced him as stated above. Being aggrieved by the same, the accused is before this Court. 4.
Legal Reasoning
Heard Sri M T Nanaiah, learned senior advocate for Sri Prabhugoud B Tumbigi, learned counsel for the appellant and Smt Rashmi Jadhav, learned Additional SPP for the respondent - State. Perused the materials including the Trial Court records. 5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: - 5 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR "Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court and to acquit him for the charges leveled against him?" My answer to the above point is 'partly in the affirmative' for the following: REASONS 6. It is the contention of the prosecution that the accused was neighbor of PW1-the mother of the victim girl. This fact is not in dispute. It is further contention of the prosecution that the accused taking advantage of his position as a neighbor took the little girl aged 3 years to his room and inserted his finger into her vagina. The child came crying and on enquiry by PW1 - the mother, the child has stated that she is experiencing burning sensation inside the vagina. The mother took her to local doctor who ignored this fact by stating that she must have experiencing irritation due to heat in the body. While the child persistently stated that she is experiencing irritation due to the act of the accused, the informant lodged the first information as per Ex.P1. The FIR came to be registered and the child was subjected to medical - 6 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR examination by PW9 who on examination, found the scratch mark in the vagina and issued certificate as per Ex.P6 stating that the findings are consistent with digital interference. 7. PW9 is examined before the Trial Court and she stated that she had examined the victim girl on 11.07.2021 at 2.00 p.m. with a history of sexual assault, given by the mother of the victim girl. She examined her and has given report as per Ex.P6. As per Ex.P6 there was redness in genital area and linear scratch present in inner part of right labia, which was consistent with the findings of digital interference. The witness explained that the digital interference means insertion of finger. The witness was cross examined by the learned counsel for the accused, where it is elicited that the incident was said to have been occurred on 07.07.2021. It is suggested to the witness that the scratch marks found inside the vagina must have been as a result of victim herself scratching her private part. This suggestion is denied by the witness and stated that the victim was not having nails to cause scratch marks and on examination, she confirmed that such scratch mark was as a result of insertion of finger by an adult person. Nothing has been elicited from this witness to disbelieve her version. - 7 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR 8. PW1 is the mother of the victim. She stated in detail that her daughter is aged about 3 years. Her date of birth is 04.06.2018. Accused was her neighbor and they were in cordial relationship. On 08.07.2021 the accused came and took the girl with him and after a while, the child came back weeping, she had high temperature and on enquiry, the victim narrated that accused had touched her private part and she is experiencing irritation. Thereafter, she has given the complaint to the police, upon which, the victim was examined by the doctor at M S Ramaiah Hospital. She speaks about drawing of mahazar and identifying the accused as the assailant. Witness was treated as partially hostile to the prosecution and during cross examination, she admitted the suggestion that the victim is persistently complaining that she is experiencing irritation in the private part and in that regard, she has filed complaint on 11.07.2021 and the child was having high fever and therefore, there was delay in filing the first information. 9. During cross examination, it is suggested to the witness that she had requested the mother of the accused for grant of loan during COVID and since loan was not given, she has filed the false complaint implicating the accused. It is also - 8 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR suggested that the complainant demanded Rs.9 to 10 lakhs to withdraw the false complaint. These suggestions are flatly denied by the witness. The tenor of cross examination discloses that few days earlier to the incident, the birthday party was arranged in the house of PW1 on the occasion of birthday of her eldest daughter and the accused and his family have in fact attended the function, which suggests that the family members of the accused and PW1 were in cordial relationship and there was no reason for PW1 to falsely implicate the accused. In the lengthy cross examination, nothing has been suggested to disbelieve the version of PW1. 10. The prosecution examined other witnesses who are all circumstantial witnesses. On considering the evidence of PWs.1 and 9, they consistently state that the victim girl aged 3 years was taken by the accused to his room and inserted finger into her vagina, as a result of which, scratch was found therein on examination by the doctor. 11. PW3 is the victim girl child aged 4 years 7 months at the time of examination. The child is of tender age and she could not answer any question put by the Court and when she was questioned by the Prosecutor, she shown her lips, chest - 9 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR and the private part. However, during cross examination, it was suggested that the accused has done anything to her, she admitted the same by nodding her head. By looking at the evidence of PW3, it is clear that she has not uttered even a word, but was expressing something by nodding her head and the same was recorded by the Court. 12. There is nothing inconsistent to suggest from the evidence of PWs.1 and 3. On the other hand, the expression of victim recorded by the Trial Court probablises the version of PW1 who clearly stated about the act committed by the accused. Even though PW1 is not the eye witness to the incident, she categorically stated that on the date of incident, the accused had taken the victim girl to his room and immediately thereafter, the child came crying back to the house and started complaining irritation in the vaginal part and also she had fever. This was probabalized by Ex.P6 - the medical certificate issued by PW9, wherein she has clearly stated that the scratch marks on vagina was due to digital interference by an adult person. 13. Once the prosecution is successful in proving these facts, the presumption under Section 30 of POCSO Act, comes - 10 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR into operation to presume about culpable mental state on the part of the accused, unless the same is disproved by the accused by raising probable defence. In the present case, no such probable defence was raised by the accused. Under such circumstances, he is liable for conviction. 14. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The Trial Court proceeded to form an opinion that the prosecution is successful in proving the guilt of the accused for the offences under Sections 4, 6 and 8 of POCSO Act and accordingly sentenced him. When the accused is found to be guilty under Section 6 of POCSO Act for having committed aggravated penetrative sexual assault on the child below the age of 12 years, the Trial Court could not have convicted for the offence under Section 4 of POCSO Act i.e., punishment for penetrative sexual assault and under Section 8 of POCSO Act i.e., punishment for sexual assault. I do not find any reason for the Trial Court to invoke Sections 4 or 6 of POCSO Act. 15. The materials placed before the Court suggest that the accused had committed sexual assault as defined under Section 7 of POCSO Act by touching the vagina of the child with - 11 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR sexual intent involving physical contact without penetration and the same is punishable under Section 8 of POCSO Act. Therefore, I am of the opinion that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 8 of POCSO Act and not either under Section 4 or Section 6 of POCSO Act. Accordingly, he has to be sentenced.
Decision
In view of the above, the impugned judgment of conviction and order of sentence passed by the Trial Court is required to be interfered with. Accordingly, I answer the above point partly in the affirmative and proceed to pass the following: ORDER (i) Appeal is allowed in part. (ii) The judgment of conviction and order of sentence dated 01.07.2024 passed in Special Case No.1364 of 2021 on the file of the learned FTSC-I, Additional City Civil and Sessions Judge, Bengaluru, for the offence under Sections 4 and 6 of POCSO Act is hereby set aside. (iii) The judgment of conviction and order of sentence passed by the Trial Court for the offence under Section 8 of POCSO Act is hereby confirmed. - 12 - NC: 2025:KHC:22749 CRL.A No. 1466 of 2024 HC-KAR (iv) The direction given by the Trial Court to pay fine of Rs.1,00,000/- to the victim girl as compensation is upheld. Registry is directed to send back the Trial Court records along with copy of this judgment for information and needful action i.e., to issue conviction warrant, if not already issued. Sd/- (M G UMA) JUDGE *bgn/- CT:VS List No.: 1 Sl No.: 18