Dismissed

Abdul Riyaz @ Riyaz Pasha v. the State of Karnataka

Karnataka HC14 Dec 2021CRL.A/1193/2016

Case brief

AI extract

What is this about?

In a criminal appeal challenging a conviction for penetrative sexual assault under POCSO and IPC, the High Court of Karnataka upheld the trial court's finding of guilt supported by DNA evidence but found no error in the concurrent sentences for the overlapping offenses.

What did the court decide?

Criminal Appeal dismissed; conviction and sentence of the trial court upheld.

Abdul Riyaz @ Riyaz Pasha Vs the State of Karnataka — Narcotics (NDPS) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2021

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BEFORE:

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL No.1193 OF 2016

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BETWEEN:

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ABDUL RIYAZ @ RIYAZ PASHA S/O ABDUL MAZEED AGED ABOUT 38 YEARS AUTO DRIVER R/O CHATIPURA VILLAGE CHAMARAJANAGAR-571 121. ... APPELLANT

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[BY SRI. PARAMESHWARAPPA.C, ADVOCATE]

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AND:

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THE STATE OF KARNATAKA THROUGH CHAMARAJNAGAR RURAL POLICE STATION CHAMRAJNAGAR – 571 121 REPRESENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU–01. ... RESPONDENT

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[BY SMT. LEENA C. SHIVAPURMATH, HCGP]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 09/10.06.2016 PASSED BY THE PRL. DIST. AND S.J., CHAMARAJANAGAR IN SPL.C. NO.80/2014 – CONVICTING THE APPELLANT/ACCUSED FOR OFFENCE P/U/S 376(2)(j)(n), 420 AND 506 OF IPC AND SEC.5(j)(ii) AND (l) R/W 6 OF POCSO ACT.

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THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The Judgment and Order dated 09/10.06.2016

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passed by the Court of Principal District and Sessions Judge at Chamarajanagar, in Special Case No.80/2014 is under challenge in this appeal, preferred by the accused.

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By the impugned Judgment, the learned Sessions Judge has convicted and sentenced the accused/appellant for offence punishable under Sections 5(j)(ii) and (l) r/w 6 of the Protection of Children from

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Sexual Offences Act, 2012 [hereinafter referred to as ‘POCSO Act’ for short] and Section 376(2)(j) and (n), 420 and 506 of IPC.

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Heard the learned counsel for appellant and the learned HCGP for respondent State and perused the evidence and material on record.

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At the outset, it is relevant to mention that the trial Court has passed sentence against the accused

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under the POCSO Act as well as under Section 376(2)(j)

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and (n) of IPC. In view of Section 42 of the POCSO Act, if the offender is found guilty of an offence under the said Act or under the Indian Penal Code as mentioned in the said provision, he shall be liable to punishment for any of the offence as provides for punishment which is greater in degree. Hence, passing sentence for both the offences under Section 376(2)(j) and (n) of IPC as well as under the POCSO Act is not proper.

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The case of the prosecution is that, since 9 months prior to 28.05.2014, the accused was in love with the victim girl, a minor aged about 16 years and while she was going to the house of one Mohammed Yusuf for rolling beedi, by alluring and promising that he will marry her, committed penetrative sexual assault on her repeatedly, on account of which she became pregnant and delivered a baby girl on 24.05.2014. Further, the accused committed sexual act by alluring that he will marry only her and then cheated her and

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also intimidated her by threatening to kill her if she cause any alarm and disclose the incident to others.

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Complaint is lodged by the father of the victim girl who is examined as P.W.2. In his complaint lodged as per Ex.P4, he has stated that he is a resident of Chatipura village, Chamarajanagar and he is working as an auto driver in Mysuru. He has 4 daughters and 3 sons. The victim girl is his third daughter and she is aged about 16 years. She is residing along with her mother in Chatipura village. About 5 days back, when he was in Mysuru, his daughter was brought to K.R.Hospital by his sister [P.W.3] and on enquiry, his daughter revealed that the accused with a promise of marriage committed forcible sexual intercourse on her since 9 months, due to which she has become pregnant and that he threatened her with dire consequence not to disclose the incident to others.

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In order to prove the guilt of the accused, the prosecution has got examined in all 25 witnesses and got

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marked Ex.P1 to 26. The accused got himself examined as D.W.1.

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The defence taken by the accused is that, P.W.3 viz., Raheebabanu, first informant’s sister had married his brother by name Ilyas Pasha on 19.08.1989. However, they got separated since she was ill-treating his brother. Therefore, P.Ws.2 and 3 were nurturing illwill against him. It is stated that P.W.3 was not in good terms with her husband and they were waiting for an opportunity to drive him out of the village and therefore a false case was foisted against the accused.

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The first informant has been examined as P.W.2. He has re-iterated the averments made in the complaint. In the cross-examination, though he has denied that his sister i.e., P.W.3 married the brother of the accused, however, P.W.3 has admitted in her crossexamination that she had earlier married the brother of accused. She has stated that a week after the marriage she left her husband because she was not willing to stay

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with him. However, she has denied that there was any ill-will against the family of her husband.

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The victim girl has been examined as P.W.1.

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She has supported the prosecution. She has deposed that she was going to the house of C.W.8 [P.W.7]Mohammed Yusuf for rolling beedi. At that time, the accused used to sit beside her and tell her that he will marry her. About 9 months prior to 03.05.2014, he committed rape on her and threatened her not to disclose the incident to others and therefore, she did not inform to any one about the incident. Later, as she was not keeping well, her aunt-P.W.3 took her to Cheluvamba Hospital, wherein it was informed that she is pregnant. Thereafter, she informed the accused that he is responsible for her pregnancy. She has further deposed that on 24.05.2014, she gave birth to a baby girl and her father lodged the complaint on 28.05.2014. The Police came to the hospital on 30.05.2014 and recorded her statement as per Ex.P1. She has also

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stated that she has shown the house of C.W.8 [P.W.7] where the accused committed the offence. The spotmahazar is marked as Ex.P2. She has stated that the accused is already married and having two c hildren.

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In the cross-examination of P.W.1, it is elicited that her aunt i.e., P.W.3 had married the brother of the accused and later she deserted him and married another. She has stated that P.W.3 did not like the accused as well as his brother and therefore the brother of the accused left Chatipura village and started residing in Bengaluru.

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It is the contention of the learned counsel for the appellant that as admitted by both P.Ws.1 and 3, all was not well between the family of the accused and the victim. P.W.3 is none other than the aunt of the victim. She married the brother of the accused and thereafter deserted him and therefore there was ill-will between the two families. He therefore contends that P.W.3 while admitting the victim girl in the hospital has falsely

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alleged that the accused is responsible for victim’s pregnancy. It is his further contention that the complaint is lodged after a delay of 6 days and it is admitted by P.W.2 in the cross-examination that the complaint was prepared by an Advocate. Therefore, he contends that the complaint is tutored and filed after deliberation.

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The learned High Court Government Pleader has contended that there is scientific evidence in the form of DNA Profile Report which clearly establishes that the accused is the biological father of the child given birth by the victim and therefore there is conclusive evidence to show that the accused has committed the offence charged against him. She contends that the victim’s evidence is corroborated by medical evidence as well as other material on record.

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It is well-settled that the evidence of the

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prosecutrix if inspires confidence of the Court, can be accepted without there being any corroboration. In the

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instant case, the victim who is examined as P.W.1 has categorically stated that it is the accused/appellant who committed sexual intercourse on her and cause for her pregnancy.

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Admittedly the victim delivered a baby on 24.05.2014 at Cheluvamba Hospital, Mysuru. P.W.23 is the Forensic Expert, examined by the prosecution. He has stated that he collected the blood samples of the child, accused as well as the victim in the presence of the learned Judge. The same is marked as Exs.P24 to 26.

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P.W.19 has stated that he has taken 3 samples to FSL., Bengaluru and received acknowledgement as per Ex.P19 and handed it over to C.W.25 [P.W.24] viz., Investigation Officer. Assistant Director, Forensic Science Laboratory, Bengaluru, has been examined as P.W.23. He has stated that on 04.09.2014, he has received the sealed articles which were brought by Mahadevaswamy i.e., P.W.19, which was sealed and the said articles are as under:

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“1. One sealed cloth packet containing two vacutainers said to contain sample blood collected from female individual by name Ms. Adila Banu @ Saira Banu, d/o. Sri. Aejas Pasha.

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One sealed cloth packet containing a piece of bandage cloth said to contain sample blood collected from baby of Ms. Adila Banu @ Saira Banu.

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One sealed cloth packet containing two vacationers said to contain sample blood collected from male individual by name Mr. Abdul Riaz @ Riaz Pasha, s/o. Sri. Abdul Majeed.”

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P.W.23 has given his opinion as under:

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The DNA profile results of the blood samples sent in

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item Nos.1, 2, and 3 found that;

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“(1) The DNA profile of the sample blood sent in Item No.2, baby of x x x x x is consistent with having come from the offspring of Mr. Abdul Riaz @ Riaz Pasha, s/o. Sri. Abdul Majeed and matching with the DNA Profile of the sample blood in Item No.3.’

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Exs.P22 to P26 are marked through P.W.23

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i.e., Ex.P22 is the DNA Report, Ex.P23 is the Introduction Statement and Method of Observation and

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his Opinion and Ex.P.24 to 26 are Identification Forms of Accused. He has stated that the sample blood sent in Item No.3 is the biological father and source of DNA of the baby of x x x x x, sample blood sent in item No.2.

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There is nothing to disbelieve the DNA Report submitted by P.W.23. From the evidence of P.W.1-victim girl and the DNA Report-Ex.P22, the prosecution has established its case beyond all reasonable doubt.

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The prosecution has also got marked the statement of the victim recorded under Section 164 of Cr.P.C. as per Ex.P3 and the victim has stated that she has given the said statement before the Court.

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The learned counsel for the appellant has contended that the prosecution has not established that the victim was a minor at the time of incident by producing any authenticated document. It is his contention that as per Ex.P12 issued by doctor-P.W.14 of Cheluvamba Hospital, Mysuru, the age of the victim girl

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is mentioned as 19 years. Therefore, he contends that

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the victim was a major and the said fact has been suppressed by the prosecution. It is his contention that even if it is to be accepted that the accused is the biological father of the child born to the victim, then it cannot be said that there was forcible sexual intercourse committed against the victim as the material on record would clearly disclose that it was a consensual act, wherein the victim being a major, has given her consent and therefore, it cannot be said that the accused has committed the charged offence. It is his contention that the victim’s name is stated differently in Ex.P23 and therefore the school document produced and marked by the prosecution cannot be accepted as the document pertaining to the victim.

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In Ex.P12, though the name of the victim is mentioned differently, it is pertinent to see that in the complaint itself her second name is mentioned in the bracket. In the complaint at Ex.P4, the age of the

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victim is shown as 16 years. Further, the prosecution has got marked Exs.P14 and 15 through the Head Mistress [P.W.16] of the Government Urdu Higher Primary School, Chatipur, Chamarajanagar where the victim studied. From the evidence of P.W.16, it can be seen that the victim girl joined I Standard in the said school, in the year 2003 and passed VII Standard in April, 2010. Ex.P14 is the Transfer Certificate and Ex.P15 is the Admission Register Extract. In the said documents, the date of birth of the victim is mentioned as 10.04.1997. There is nothing to disbelieve the said documents, wherein the date of birth was mentioned at the time of admission of the victim to the I Standard, in the year 2003.

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It is the contention of the learned counsel for

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the appellant that both P.W.7-owner of the house where the incident is alleged to have taken place and his wife P.W.8 have turned hostile and therefore the case of the prosecution that the victim was going to the house of

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P.Ws.7 and 8 to role beedi and at that time the accused committed rape, is not established. The said contention cannot be accepted for the reason that the victim has duly supported the case of prosecution and her evidence is corroborated by medical evidence.

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Having re-appreciated the entire evidence on record, this Court is of the considered view that the prosecution has established the guilt of the accused beyond reasonable doubt. The trial Court after considering the oral and documentary evidence and after giving reasons, has convicted and sentenced the accused for the charged offences.

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As already discussed, the sentence imposed against the accused for both the offences under the POCSO Act as well as under Section 376(2)(j) and (n) of IPC may not be proper. However, for both the said offences, the trial Court has sentenced the accused to undergo rigorous imprisonment for 10 years and to pay fine of `1,000/- and in default of payment of fine, to

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undergo simple imprisonment for 3 months. The substantive sentences has been ordered to run concurrently, observing that the ingredients of the offences are one and the same. Hence, no interference is called for. Accordingly, the following:

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ORDER

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Criminal Appeal is dismissed.

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Sd/JUDGE

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Ksm*

Abdul Riyaz @ Riyaz Pasha v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Abdul Riyaz @ Riyaz Pasha v. the State of Karnataka

Case brief

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