Dismissed

Abdulkhadar S/O Abdulgafar Tapal v. the State of Karnataka

Karnataka HC9 Dec 2021CRL.A/100010/2020

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court of Karnataka examined whether the declaration of unconstitutionality of Section 377 IPC in _Navtej Singh Johar_ bars conviction for non-consensual acts against minors. The Court held that Section 377 continues to govern non-consensual acts and acts against minors. Confirming the trial Court's finding on anal penetration, the appeal was dismissed, and the convic

What did the court decide?

The criminal appeal filed by the accused was dismissed, confirming the conviction and sentence imposed by the trial Court.

Abdulkhadar S/O Abdulgafar Tapal Vs the… — Child Sexual Offences (POCSO) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF DECEMBER, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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AND

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THE HON’BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL APPEAL No.100010/2020

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BETWEEN:

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1 . ABDULKHADAR S/O ABDULGAFAR TAPAL AGE: 29 YEARS, OCC: COOLIE, R/O: SAVANOOR, KARADAGI, TQ and DIST: HAVERI. (NOW UNDERGOING PUNISHMENT)

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... APPELLANT

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(BY SRI.R.H.ANGADI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA (SAVANOOR POLICE STATION), R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA DHARWAD BENCH, DHARWAD. ... RESPONDENT

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(BY SRI.V.M.BANAKAR, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C., PRAYING TO KINDLY ALLOW THE APPEAL AND KINDLY CALL FOR RECORDS AND KINDLY SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION, SENTENCE PASSED IN SPL. SC/ST CASE NO.03/2017, DATED 06/12/2019, PASSED BY THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, HAVERI, FOR THE OFFENCES PUNISHABLE UNDER

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SECTION 377 OF IPC AND SECTIONS 4, 6, 12 OF POCSO ACT AND CONSEQUENTLY ACQUIT THE APPELLANT / ACCUSED.

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THIS APPEAL COMING ON FOR FINAL HEARING ON 18.11.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The accused/appellant is before this court challenging the judgment dated 06.12.2019 passed by the I Additional District and Sessions Judge and Special Judge at Haveri (for brevity ‘the trial Court’) in Spl. SC/ST No.03/2017 under which the accused was convicted for the offences punishable under Section 377 of IPC and Sections, 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for brevity ‘the POCSO Act).

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The case of the prosecution is that on 25.10.2016 at about 10 a.m., PW-1 - complainant had sent her minor son to bring cow dung for the purpose of applying it in the house. When he had

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gone to the Tank Bund in Savanur, the accused is alleged to have dragged him to a place near a Canal which is situated next to the poultry farm of one Pathan, removed the dress of the minor victim and committed anal penetration with the knowledge that the minor victim belonged to scheduled caste. Thus, offences alleged to have been committed under Section 377 of IPC and Sections 4, 6, 12 of the POCSO Act as also Sections 3(1)(i), 3(2)(Va) of SC/ST (Prevention of Atrocities) Act, 1989.

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Upon investigation being completed, the Investigation Officer filed a chargesheet for the offences alleged. The trial Court framed charges, the accused denied the charges and claimed to be

tried.

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The prosecution examined 15 witnesses as PWs -1 to 15, got marked 21 exhibits as Ex.P.1 to Ex.P.21 as also three material objects as M.Os.1 to 3.

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Upon evidence of the prosecution being completed, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied all the allegations made against him but did not lead any evidence.

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After arguments being heard, the trial Court convicted the accused of the offences Section 377 of IPC and Sections 4, 6, 12 of the POCSO Act but acquitted the accused of offences under Sections 3(1)(i), 3(2)(Va) of SC/ST (Prevention of Atrocities) Act, 1989, and sentenced the accused for the offences convicted.

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Shri R.H.Angadi, learned counsel for the

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appellant/accused submits that

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7.1. The trial Court has not appreciated the evidence properly, if the same had been appreciated properly, there could have been no order of conviction or sentence,

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7.2. The identity of the accused is in dispute inasmuch as the victim has only mentioned the name of Munir Golewale and that the victim has not mentioned the name of the accused. It is the said Munir Golewale who ought to have been tried, instead the accused has been tried resulting in grave injustice being caused to the accused.

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7.3. There is no evidence on record to indicate

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that the accused has committed any offence much less the ones alleged against him.

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7.4. There is no test identification parade which

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has been carried out and the question of implicating the accused in the crime would not arise at all without a test identification parade. The victim not having identified the accused, no investigation could have been carried out and/or the charge sheet laid against the accused.

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7.5. There is no medical evidence as regards any offence committed under Section 377 of IPC and the medical evidence does not indicate or establish any penetrative sexual assault.

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7.6. That the Apex Court has held the provisions of Section 377 IPC to be unconstitutional in the case of NAVTESH SINGH JOHAR AND

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OTHERS VS. UNION OF INDIA reported in (2018) 10 SCC 1 and as such upon such

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judgment having been passed by the Apex Court, no offence can be said to have occurred under Section 377 IPC nor any prosecution be initiated under that provision.

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7.7. It is in the above background, he submits that the order of conviction and sentence is required to be set aside.

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Per contra, Shri V.M. Banakar, learned Additional Public Prosecutor would submit that:

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8.1. Munir Golewale and the accused are different

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persons. The victim was only aware of Munir Golewale and hence, he has mentioned his name referring to the accused Abdul Khadar as a person who was known to Munir Golewale and there is no identity dispute. The victim has identified the accused at the police station. The identification was complete and

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there was no dispute as regards any other person having been involved. Hence, conducting TI parade was not required.

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8.2. The medical evidence on record clearly indicates that the offence has been committed.

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8.3. On that basis, he submits that the order of conviction passed by the trial Court as also the sentence imposed is proper and correct and does not require interference.

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It is in the above background that this Court has been called upon to render its finding on the correctness or otherwise of the conviction and order of sentence passed by the trial Court in Spl. SC/ST Case No.03/2017.

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Since the offence alleged is under POCSO Act relating to a minor victim, all the witnesses have

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been referred to by their numbers and not named so that the victim is not capable of being identified.

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PW – 1, the mother has lodged a complaint on 26.10.2016 at 17.15 hours which came to be registered as Cr.No.168/2016 for the aforesaid offences, which has been marked as Ex.P1, alleging that her minor son aged about 13 years was sent by her to fetch cow dung at 9.00 a.m. in the morning. Her son came back at 11 a.m. crying and he had informed her that when he went near the Savanur tank bund, Munir Golewale was attending to his nature call. At that time, another person known to Munir Golewale who is aged about 30 to 35 years came to the spot. After Munir Golewale left the spot, this person dragged the victim to a place next to the drainage canal and poultry farm belonging to Pathan at 10.30 a.m., removed his clothes and had anal sexual

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intercourse with him. The victim also complained about pain in anal region. It is in that background that she came to the police station and submitted the above complaint which has been reduced to writing by PW - 10.

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She has stated that the victim was rolling on the floor from pain in the anal region and when she checked his anal region, she found it to be bleeding. She has again reiterated the statement made in her complaint about the victim having informed her about the incident, how when he was defecating the accused had called him but the victim did not go near the accused and started running towards his home, the accused thereafter followed the victim, caught him, held his mouth tightly to prevent him from screaming, took him to the spot and performed anal sex; she has also

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stated about taking the victim to

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Savanur Government Hospital for treatment.

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She has deposed about her taking the police to the spot where the incident had taken place, the spot mahazar having been drawn as per Ex.P.2 and the sketch having been drawn as per Ex.P.3. She stated about PW -3’s clothes being taken away by the police which had been identified as M.Os.1 and

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During cross-examination, she has stated that she did not know the accused and had not seen him till he was produced in the Court. Apart from this, nothing else has been elicited during her cross-examination.

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PW - 2 is a Panch witness to the spot mahazar and the sketch. He has stated that he knows PW - 1 and her children including PW -3. He had further stated about having met PWs – 1 and 3 while they

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were going to the hospital at 11 a.m. on 25.10.2016, at which time PW - 3 was crying and complained of pain, on enquiry, PW - 1 had informed him about the incident, thereafter he accompanied them to the hospital and later on visited the spot along with PW -1, identified the spot and acted as a Panch witness. Though he was cross-examined, he stood the test of crossexamination, supported the case of prosecution and nothing to the contrary has been elicited during his cross-examination.

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PW - 3 is the victim. The trial Judge after ascertaining that he was capable of deposing in the matter took on record his deposition, PW - 3 also described the incident, he has stated that PW - 4 - Munir Golewale and the accused knew each other. PW - 4 had invited the accused to his house for lunch, the accused had informed him that he would

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come later and PW - 4 had left the spot. He has further stated that the accused had called PW - 3 but PW - 3 refused to go to him and started running towards his home and how at that time, the accused followed PW – 3, caught hold of him, took him to the spot next to the drain and Pathan’s poultry farm, removed his clothes and forcibly performed anal sex. He has identified his statement given before the Magistrate under Section 164 of Cr.P.C. He has stated about the excruciating pain suffered for a whole month and the treatment had. He withstood the crossexamination, stuck to the allegations made by him. The only aspect of relevance brought out during the course of cross-examination is that there was no test identification parade conducted and/or that the accused was not shown to him for identification.

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PW - 4 on examination did not support the case of the prosecution. He was treated hostile by the Public Prosecutor. Nothing much was elicited during the course of cross-examination.

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PW - 5 is the brother of PW -1 and uncle of PW -3. He has deposed that he has seen the accused in the police station and had visited PW - 3 at the hospital, noticed the bleeding in his anus and the pain undergone by PW3, he has supported the case of the prosecution and nothing much was elicited during the course of his cross-examination.

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PW - 6 who is the doctor at KIMS Hospital, Hubballi, has deposed that he has treated the victim. He has stated about PW - 3 having informed him about the incident on 27.10.2016; PW - 3 being hospitalized and treated at KIMS Hospital till 04.11.2016. He has also supported the

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case of the prosecution as regards anal intercourse and has stood the test of cross-examination.

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PW – 7, Tahsildar has produced the caste

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certificate of the victim PW - 3 as also that of the accused.

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PW - 8 the Head Master of the Savanur Government Primary School where the victim was studying has deposed about the age of the victim and produced Ex.P.11 based on the registration of PW - 3 in the said school as a student, wherein it was indicated that PW - 3 was born on 22.01.2003. He has also withstood the test of crossexamination and nothing contrary was elicited during the course of cross-examination.

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PW - 9 a panch witness to the seizure of clothes

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Exs.P.12 and 13 has confirmed the seizure and identified the said clothes as M.Os.1 and 2. He has

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also supported the case of the prosecution and nothing much has been elicited during the course of cross-examination.

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PW -10, the Sub Inspector of Police, Savanur police station has deposed that on 26.10.2016 at 5.15 p.m., PW - 1 filed a complaint at Ex.P1 as regards the sexual assault on the minor victim PW -3. He has also deposed as regards the formalities

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and procedure followed in the recording of the complaint, registration thereof and forwarding to the jurisdictional Magistrate. He has also stood the test of cross-examination and nothing contrary has been elicited from him during the course of crossexamination.

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PW - 11 is another doctor at KIMS Hospital who has examined the victim PW – 3. He has categorically stated that the victim had undergone

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anal penetration. He has stated that on the basis of his examination, he has given his report which has been marked as Ex.P.15. He has categorically stated about the injuries to the anal area of PW – 3, the anal tear and the bleeding therein. During the course of cross-examination, he has supported the case of the prosecution. He has denied that the injuries sustained by the victim could have been so sustained other than due to anal penetration. He has categorically stated that all the injuries were only possible on account of anal penetration and for no other reason.

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PW - 12 is another doctor who performed surgery on the victim PW - 3 and the anal region to stop the bleeding and to stitch the anal tear. He has confirmed the said surgery, the fissure having been developed due to anal tear and he has also

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stated that the same could also be caused for reasons other than anal penetration.

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PW -13 who was the first doctor who had examined PW - 3 when he was brought to the Savanur Taluk hospital and upon noticing the nature of injuries had referred him to KIMS Hospital for further treatment. He has given his opinion at Ex.P.18 wherein he has opined that PW - 3 had been sexually assaulted. He has identified Ex.P.19 to be a letter sent to him by the police seeking for his opinion. During the course of crossexamination, he has admitted that the bleeding could have been caused if a person is suffering from piles.

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PW - 14 is another doctor who has deposed that PW - 12 and a team of doctors had treated PW -3 from 27.10.2016 to 04.11.2016.

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PW - 15 is the Deputy Superintendent of Police, Shiggaon, who has stated about him being the Investigating Officer having conducted the investigation, spot mahazar, drawn up the sketch of the spot in the presence of witnesses, recorded the statement of witnesses, arrested and produced the accused before the Court, drawn the seizure panchnama, obtained the Caste Certificate and age certificate of the victim etc., During the course of cross-examination, he submits that the accused was identified through Munir Golewale and further identified by the victim and as such, there was no need for test identification parade to be conducted.

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The above being the deposition of various witnesses, Ex.P.1 is the complaint which has been referred to above. Ex.P.1(a) is the signature of the complainant in Ex.P.1, Ex.P.1(b) is the

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endorsement and signature of PW – 10, Ex.P.2 is the spot panchanama wherein place has been identified. Ex.2 (a) and (b) are the signatures of the witnesses PWs - 1 and 15. Ex.P.3 is the rough of hand sketch of the place of offences which bear the signatures of PWs - 1 and 15 as Ex.P.3(a) and Ex.P.3(b). Ex.P.4 is the photograph of the spot which indicates that the same is in between bushes.

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Ex.P.5 is the statement of the victim recorded before the jurisdictional Magistrate First Class, Savanur, under Sec.164 CrPC, which bears the signature of the said Magistrate. A perusal of the said statement supports the case of the

prosecution.

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Ex.P.7 is the statement of PW – 4, only a portion of

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the same has been marked relating to the incident on account of PW - 4 having turned hostile,

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Ex.P.8 is the Medical Certificate issued by PW - 6 indicating the date of admission being 27.10.2016 and date of discharge being 04.11.2016. Ex.P.9 is the case sheet of the victim in the hospital wherein it is stated that the victim had undergone sexual assault on 25.10.2016 at about 10.30 a.m. injuries found were pain and tenderness around anal region and the victim having been referred to surgery.

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Ex.P.10 is the Caste Certificate issued by the Tahsildar indicating that the victim belonged to the Scheduled Caste community and the accused is a Muslim by religion. Ex.P.11 is the study certificate issued by PW-8 indicating the date of

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birth of the victim to be 22.01.2003 bearing the signature of PW-8.

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Ex.P.12 is the cloth seizure panchnama of the accused bearing the signature of PW - 9 at Ex.P.12 (a) and CW - 4 at Ex.P.12 (b) and PW -15 at Ex.P.12 (c). Ex.P.13 is the clothes seizure panchnama of the victim bearing signature of PW - 9 at Ex.P.13 (a), signature of CW – 4 at Ex.P.13 (b) and signature of PW - 15 at Ex.P.13 (c). Ex.P.14 is the FIR.

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Ex.P.15 is the Medical Certificate issued by PW – 11. In the said report, it is clearly stated that the victim suffered from severe pain during defecation, with blood smeared stool and unable to walk and sit due to pain, the gait of the victim is painful and walks with wide separation of legs, that a fissure was noticed at 6 o'clock position. Since

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examination could not be done due to pain and spasm, anesthesia was administered and examination was conducted when it was found that there was a tear measuring 2 cm X 0.7 CM near the anal verge at 6 o'clock position which had rash and was bleeding and an opinion has been tendered indicating that there was a recent anal penetration. Ex.P.16 is the case file and history of PW-3 wherein the treatment that was given to the victim has been detailed. Ex.P.17 is the final opinion of the doctor indicating that there was sexual assault. Ex.P.18 is the Medical Certificate issued in this regard. Ex.P.19 is the Medical Certificate of the accused indicating that he was capable of performing of sexual activity. Ex.P.21 is the certificate issued by the regional Forensic Science Laboratory indicating that the laboratory received the clothes of the victim on

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18.01.2017 where it is indicated that no seminal stains were detected. The incident having occurred on 27.10.2016, it is rather shocking that the sample was received by FSL on 18.01.2017, after a period of nearly 3 months, such a delay is impermissible. It is required that all samples which are collected are immediately sent to the FSL for necessary examination. Be that as it may in the present case, the same does not have any material impact.

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The evidence of all the witnesses as stated above except PW - 4 who is stated to be friend of the accused have supported the case of the prosecution. It is established that the victim was a minor in terms of the Study Certificate which indicated his date of birth to be 22.01.2003. The incident having occurred on 25.10.2016, he was

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aged about 13 years of age as on the date of the incident.

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The statement made by PWs -1 to 3 and of the doctors is supported by the medical evidence on record which in clear and categorical terms establishes anal penetration. The victim has given

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his statement before the Magistrate as per Ex.P 5, the victim has also identified the accused. There is no allegation made as regards any enmity or otherwise between the victim’s family and that of the accused. In that background, we are of the considered opinion that there is no other reason for

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the victim to have identified the accused as the perpetrator of the crime. As regards the test identification period, the victim having already identified the accused and there being no dispute

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as regards any other person being accused and/or there being any issue relating to identity, we are of

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the considered opinion that there was no

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requirement for conducting a test identification parade in the present matter.

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The age of the victim having been established and the offence of Anal penetration also having been established, there is a presumption in terms of Section 29 of the POSCO Act, as regards the offence having been committed, more so, when there is no evidence to the contra led by the accused.

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In the above circumstances, we are of the considered opinion that all the evidence on record proves the complicity of the accused in offence under Section 377 IPC read with Sections 4, 6 and 12 of the POCSO Act.

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The contention of Shri R.H.Angadi, learned counsel for the accused is that in view of the decision of

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the Apex Court in NAVTESH SINGH JOHAR ’s case, Section 377 of the IPC has been declared as unconstitutional.

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Section 377 of the IPC reads as under:

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“ Unnatural offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term, which may extend to ten years, and shall also be liable to fine.”

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The decision of the Apex Court in NAVTESH SINGH JOHAR’ s case was rendered on account of a challenge made to the constitutional validity of Section 377 of IPC whereunder it was contended that when two consenting adults belonging to the same gender involve themselves in a sexual activity, it cannot be said to be unnatural on account of the same being consensual. It is in that background that the Apex Court has held that there was a freedom of choice and as such, a

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consensual sexual activity between two women or between two men or persons of same gender cannot be termed as an offence under Section 377 of the IPC.

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The said decision does not in any manner help the case of the accused in the present case. Firstly, in the present case, the sexual act is not consensual, secondly, the sexual act has been committed on a minor who could never have given his consent. Thirdly, apart from being on account of lack of consent the sexual offence alleged is one which is forcibly committed. In the background of the above circumstances, we are of the considered opinion that the decision of the Apex Court in NAVTESH SINGH JOHAR’ s case is not applicable. In fact, the Apex Court at paragraph 645 has held as under:

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“645.1 In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.

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645.2 The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.

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645.3 The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality. (Emphasis supplied by us)

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In the above circumstances, the victim being the eye-witness has deposed and stood the test of cross-examination, thus upon re-examination and appreciation of the evidence on record, we find no infirmity in the judgment of the Trial Court. We confirm the conviction of the accused of offences punishable under Section 377 of the IPC and

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Sections 4, 6 and 12 of the POCSO Act as also the

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order of sentence. Hence, we pass the following

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Order

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The appeal filed by the Accused is dismissed.

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