Allowed

Mr. Rajesh v. the State of Karnataka

Karnataka HC16 Dec 2021CRL.A/1423/2018

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court set aside the trial court's conviction of the appellant for rape and POCSO. Citing doubts regarding the victim's age due to conflicting evidence and a lack of documentary proof, and noting inconsistencies in her statement, the court applied the benefit of doubt to acquit the appellant.

What did the court decide?

Criminal Appeal allowed. Judgment of conviction and sentence set aside. Appellant acquitted and given liberty.

Mr. Rajesh Vs the State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^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.1423 OF 2018

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BETWEEN:

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MR. RAJESH S/O ERAPPA AGED ABOUT 26 YEARS R/A NARASAPUR VILLAGE KOLAR TALUK & DISTRICT-563 133. … APPELLANT

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[BY SRI. TIGADI VEERANNA GADIGEPPA, ADVOCATE]

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY: PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING BY VEMGAL POLICE KOLAR DISTRICT-563 133. … RESPONDENT

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[BY SMT. LEENA C. SHIVAPURMATH, HCGP]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 04.07.2018 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR IN S.C.NO.67/2017 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR OFFENCE P/U/S 376 OF IPC AND SECTION 4 OF POCSO ACT.

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

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JUDGMENT

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This appeal is preferred by accused No.1 in S.C. No.67/2017 on the file of the Court of II Addl. Sessions Judge at Kolar, convicting and sentencing him for offence punishable under Section 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as ‘POCSO Act’ for short].

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Heard both side and perused the evidence and

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material on record.

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Charges were framed by the trial Court for offence punishable under Section 376 of IPC and Section 4 of the POCSO Act against appellant/accused No.1 and under Sections 323, 324, 504, 506 r/w 34 of IPC against other accused.

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The trial Court by its Judgment and Order dated 04.07.2018 was pleased to acquit accused Nos. 2 to 4 for offence punishable under Sections 323, 324, 504, 506 r/w 34 of IPC and convicted accused No.1 for

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offence punishable under Section 376 of IPC and Section 4 of the POCSO Act, 2012.

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Gist of the prosecution case is that, accused

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No.1 by promising the victim aged less than 18 years that he will marry her, committed rape on her two months prior to the date of lodging of the complaint and thereafter threatened her not to disclose the incident to others. Thereafter, he refused to marry her and all the accused picked up quarrel with the victim, abused her and assaulted her with hands and accused No.3 assaulted with a knife and caused injuries to her head and thereby committed the charged offences.

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To substantiate the charges leveled, prosecution got examined in all 18 witnesses as P.Ws.1 to 18 and got marked Exs.P1 to 24 and M.Os.1 to 10. The defence of the accused was total denial, however no defence evidence was lead.

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The trial Court came to the conclusion that, the evidence of P.Ws.1 and 2 coupled with the medical

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evidence shows that there was rape on the victim and the doctor-P.W.13 has given report that the victim was aged between 17-18 years and if the date of birth of the victim as per Ex.P10 is taken into consideration, the victim was a minor at the time of the incident and the incident has taken place two months prior to lodging of the complaint and therefore the victim’s age will be 16 years 6 months as on the date of the incident. The trial Court has however acquitted accused Nos.2 to 4 holding that the materials available on record are not sufficient

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to say about the assault and involvement of the said accused.

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P.W.1 is the victim girl. The complaint is lodged by her. Her complaint is marked as Ex.P1. P.W.2 is victim’s father.

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P.W.3 is the panchwitness to Exs.P4 and 5 i.e.

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Ex.P4 is the spot where the appellant/accused No.1 is alleged to have committed rape and Ex.P5 is the spot where the accused persons assaulted the victim. He has turned hostile.

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P.Ws.4 and 5 are the witnesses to the

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panchayat said to have been conducted. Both of them have turned hostile and not supported the prosecution.

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P.W.6 is the Assistant Engineer, Health and

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Family Welfare Department, who drew the sketch as per Exs.P2 and 8.

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10. P.W.7 is the Principal of the Government Pre-

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University College, who has issued Ex.P10 i.e., Age Certificate concerning the victim.

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P.W.8 is the PDO, who issued Exs.P11-khata extract.

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P.W.9 is another witness who attended the

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panchayat and he is a panchwitness to Ex.P5. He has not supported the prosecution case.

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P.W.10 is the doctor, who examined the victim [P.W.1] and issued Wound Certificate marked as per Ex.P15.

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P.W.11 is the doctor, who issued Ex.P16 after conducting medical examination of the appellant/accused No.1.

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P.W.12 is the doctor, who has examined the victim [P.W.1] and issued Exs.P17 and 19. Ex.P18 is the FSL Report marked through the said witness.

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P.W.13 is the doctor, who estimated the age

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of the victim as between 17-18 years and issued Ex.P20.

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P.W.14 is the ASI, who has taken the victim

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before the doctor for medical examination as well as produced before the Magistrate for recording her statement under Section 164 of Cr.P.C.

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P.W.15 is the PSI who deputed P.W.16 to record the statement of the victim from the hospital. On receiving the said statement, he registered the case and sent FIR Ex.P22 to the jurisdictional Magistrate.

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P.W.16 is the panchwitness to Exs.P4 and 5.

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P.W.17 is the Investigation Officer, who has

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completed investigation and filed the charge-sheet.

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P.W.18 is the CPI who conducted part of the investigation.

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The specific case of the prosecution is that the victim is a minor, aged below 18 years. Accused No.1 by inducing her and on a false pretext of marriage, committed rape on her two months prior to the date of lodging the complaint and thereafter, he threatened her with dire consequence and refused to marry. Further, he along with other accused persons picked up quarrel with her and when she requested accused No.1 to marry her, all of them abused and assaulted her and accused No.3 caused injury to her head with a knife.

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As already noted, the trial Court has come to the conclusion that the charges leveled against accused Nos.2 to 4 are not proved by the prosecution. The Judgment of acquittal in respect of the said accused has become final.

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To establish that the victim was a minor at the time of incident in question, the prosecution has placed reliance on the evidence of P.Ws.1 and 2 and the Certificate issued by P.W.7-Principal of the Government Pre-University College, wherein the victim was studying as well as Age Certificate-Ex.P20 issued by P.W.13.

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It is the contention of the learned counsel for the appellant that the prosecution has failed to establish victim’s correct age, by adducing reliable evidence. He would contend that Ex.P10 issued by P.W.7 is based on the register maintained in the College. The prosecution has not produced the said register and therefore, merely on the basis of Ex.P10 it cannot be said that the date of birth mentioned in the said Certificate is the correct date of birth of the victim. It is his further contention that according to P.W.13, X-ray examination was conducted and the age of the victim was estimated as 17-18 years. However, the prosecution has not produced any X-ray to establish that in fact, the victim was subjected to such an examination.

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The learned counsel for the appellant would also contend that in Ex.P1, the age of the victim is shown as 18 years and even in the statement recorded under Section 164 of Cr.P.C., her age is shown as 18 years and therefore benefit of doubt has to be given to the appellant/accused No.1.

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Per contra, the learned High Court Government Pleader has contended that there is nothing to disbelieve the evidence of P.Ws.7 and 12 and the certificates issued by them. The victim was studying in II PUC at the time of incident and P.W.7 after verifying the documents, has issued Ex.P10, wherein the date of birth of the victim is shown as 09.08.1998. She therefore contends that the prosecution has established that the victim was a minor at the time of commission of the offence.

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It is useful to refer to the relevant portion of the Judgment of the Hon’ble Apex Court in the case of Jarnail Singh Vs. State of Haryana , reported in

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(2013)7 Supreme Court Cases 263 . Para 22 of the

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said Judgment is extracted hereunder:

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“22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as “the 2007 Rules”). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:

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“12. Procedure to be followed in determination of age.- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

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(2) x x x x x

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(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining –

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(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

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(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

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(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

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and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

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(4) x x x x x

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(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

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(6) x x x x x .”

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At para 23 of the said Judgment, the Hon’ble Apex Court has held that even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law,

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the aforesaid statutory provision should be the basis for determining the age, even of a child who is a victim of crime.

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In the case on hand, it is not in dispute that the victim was studying in II PUC at the time of incident in question. As per Ex.P10 issued by P.W.7, the victim was studying in I PUC and II PUC during the academic year 2014-15 and 2015-16 respectively. It is mentioned therein that as per the entry made during 2014-15, the date of birth of the victim is 09.08.1998. If the said date of birth is taken into consideration, the victim was aged below 18 years at the time of incident.

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It is relevant to see that in the present case, the prosecution has not placed Certificate from the school first attended or the Date of Birth Certificate given by the Municipality/Corporation. It is not the case of the prosecution that matriculation or equivalent certificate was not available. However, such certificate is also not produced. According to P.W.7, based on the entry made

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in the registry, he has issued Ex.P10 mentioning the Date of Birth as 09.08.1998. However, no such register has been placed on record to show that in fact in the said register, the date of birth of the victim is mentioned as 09.08.1998.

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In the cross-examination, P.W.7 has stated that based on the Transfer Certificate, he has mentioned the date of birth of the victim. However, the said Transfer Certificate has not been produced and marked. As rightly contended by the learned counsel for the appellant, even though Ex.P20 has been issued by P.W.13 estimating the age of the victim as 17-18 years, the prosecution has failed to place any material to show that the victim was subjected to examination such as Radiological/Ossification Test to estimate her age. It is pertinent to refer to the cross-examination of P.W.13, wherein he has stated that in the Scanning Report the age of the victim is mentioned as 18 years.

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In the complaint at Ex.P1 lodged by the victim, she has mentioned her age as 18 years and even in the statement recorded under Section 164 of Cr.P.C., her age is shown as 18 years. Hence, reasonable doubt arises in the mind of the Court about the exact age of the victim. Hence, it cannot be said that the prosecution has established that the victim was a minor, aged below 18 years at the time of incident.

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It is the contention of the learned counsel for the appellant that there is material discrepancy in the evidence of the victim and she has improved her case from stage to stage and there are material improvements. He would contend that even according to the victim, there was a love affair. He submits that according to the victim, appellant/accused No.1 committed sexual intercourse with her when she was alone in the house. He contends that according to the complaint, the appellant has only on one occasion committed sexual intercourse, however, in the history

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given before the doctor-P.W.12, she has alleged that on several occasions the appellant has committed sexual intercourse. He has pointed out that the averments in the complaint are contrary to the statement-Ex.P3 recorded under Section 164 of Cr.P.C. He therefore contends that the victim is not a trustworthy witness and the allegation that the appellant with a false promise of marriage has committed rape on her cannot be believed.

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The learned High Court Government Pleader has contended that the evidence of the victim is corroborated by the evidence of P.W.2, her father as well as medical evidence. There is nothing to disbelieve their evidence and therefore the trial Court has rightly come to the conclusion that the appellant has committed the charged offence.

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The perusal of Ex.P1, the complaint lodged by the victim go to show that both the victim and the appellant were in love with each other. About two months prior, when she was alone in the house, the

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appellant committed sexual intercourse with her with a promise of marriage. She did not inform the incident to others since the appellant had promised that he will marry her. About one week prior to lodging of the complaint, the appellant refused to marry. Hence, a panchayat was conducted on 28.03.2016 and in the said panchayat he agreed to marry. However, again on 02.04.2016, the appellant refused to marry and when she questioned, all the accused picked up quarrel with her and abused and also assaulted her etc.

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Ex.P3 is the statement of the victim recorded under Section 164 of Cr.P.C. The said statement was recorded on 05.04.2016. In the said statement, it is stated that the appellant is her uncle and they were in love with each other. On 28.03.2016, in the panchayat conducted, he had agreed for marriage and later, on 28.04.2016, he refused to marry. According to her, she was abused and assaulted by the accused persons on 02.04.2016 and about 7 days prior to the said incident,

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appellant had committed forcible sexual intercourse on her when there was no one in her house. The statement given by the victim in Ex.P3 is contrary to the evidence before the Court. She has specifically stated that about two months prior to the date of lodging of the complaint, appellant committed forcible sexual intercourse with her. However, in Ex.P3 she has alleged that about 7 days prior to the assault, the appellant committed forcible sexual intercourse with her. It is relevant to note that on the very next date of the alleged assault by the accused persons, she has lodged the complaint.

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The independent witnesses viz. P.Ws.4, 5 and 9 to the panchayat said to have been held have not supported the case of prosecution and they have turned hostile.

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According to P.W.2-victim’s father, his daughter as well as the appellant were in love with each other. On seeing her daughter crying, he enquired with her and at that time she informed him that the appellant

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by promising that he will marry, committed rape on her and thereafter the appellant refused to marry. In the cross-examination, he has stated that he does not remember as to when his daughter informed him about the rape committed on her by the appellant. P.W.12 is the doctor who conducted medical examination on the victim. She has deposed that the victim gave history that about two months prior, on three occasions, the appellant committed rape on her and 7 days prior to conducting the medical examination, the appellant committed rape on her. She has issued Exs.P17 and 19 opining that there are no signs of recent injuries, no signs of recent penetration and findings are consistent with vaginal penetration in the past. As per the FSL Report-Ex.P18, the seminal/spermatozoa was not detected in the article sent for examination.

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From the above evidence on record, it is seen

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that the victim has taken different stands at different stages. She has alleged in Ex.P1 that two months prior,

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when she was alone in the house, the appellant by promising that he will marry, committed forcible sexual intercourse on her, whereas in the statement recorded under Section 164 of Cr.P.C. marked as Ex.P3, she has stated that about 7 days prior, the appellant committed forcible sexual intercourse on her. According to P.W.12doctor, history given by the victim is that on three occasions the appellant committed sexual intercourse on her. P.W.1 is not consistent about the alleged rape committed on her by the appellant. Hence, a reasonable doubt arises in the mind of the Court about the veracity of the allegations made against the appellant. According to P.W.13, the victim was subjected to scanning and it was found that she was not pregnant. He has issued a report as per Ex.P21. P.W.12 in her evidence has stated that there was no injuries and no signs of recent sexual intercourse. Hence, it cannot be said that the prosecution has been able to establish the charges levelled against the appellant/accused No.1 beyond all reasonable doubt. The reasons assigned by the learned

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Sessions Judge for convicting the appellant/accused No.1 is therefore not in accordance with law. The appellant/accused No.1 is entitled to benefit of doubt. Accordingly, the following:

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ORDER

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Criminal Appeal is allowed.

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The Judgment and Order dated 04.07.2018 passed in S.C. No.67/2017 on the file of the Court of II Addl. Sessions Judge, Kolar, convicting and sentencing the appellant/accused No.1 for offence under Section 376 of IPC and Section 4 of the POCSO Act is hereby set aside. The appellant/accused No.1 is acquitted of the offences for which he has been convicted and sentenced by the trial Court. He shall be set at liberty, if not required in

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any other case.

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Sd/JUDGE

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Ksm*

Mr. Rajesh v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Rajesh v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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