Criminal appeal against conviction and sentence for offences under Section 376 IPC and POCSO Act against a father accused of sexual assault on his 13-year-old daughter by way of the appellant himself failed to rebut the presumption under the Act.
Criminal appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.A.No.1831/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY 2022 BEFORE
R
THE HON’BLE MRS JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL No.1831/2016
BETWEEN:
ESHWAR S/O LATE KRISHNAPPA AGED ABOUT 36 YEARS R/AT KERE ROAD, 2ND CROSS NEAR SHANI MAHATMA TEMPLE DEVARA BEESANAHALLI BENGALURU – 560 094 …APPELLANT (BY SRI RAKSHITH JOIS, AMICUS CURIAE)
AND:
STATE BY KARNATAKA THROUGH H.A.L. POLICE REPRESENTED BY S.P.P HIGH COURT CAMPUS BANGALORE – 560 001 …RESPONDENT
(BY SMT.RASHMI JADHAV, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT, ORDER OF CONVICTION AND SENTENCE DATED 21/22.09.2016 PASSED BY LIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY IN SPL.C.C. NO.597/2014 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC AND UNDER SECTION 5(n) READ WITH SECTION 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:
Crl.A.No.1831/2016
2
J U D G M E N T
Heard.
Crl.A.No.1831/2016
3
Crl.A.No.1831/2016
4
the offence punishable under Section 376 of IPC and Section 5(n) read with Section 6 of the Act. Further the trial Court has sentenced the appellant to rigorous imprisonment of 10 years and fine of Rs.2,000/- for the offence punishable under Section 5(n) read with Section 6 of the Act.
Submissions of Sri Rakshith Jois, learned Amicus Curiae assailing the impugned judgment and order:
the complaint. There are lot of contradictions in the complaint, the statement of the victim under Section 164 of Cr.P.C. and the evidence of PWs.1 and 2. The evidence
Crl.A.No.1831/2016
5
of PW.1 shows that she tutored PW.2. The evidence of PW.1, PW.2 and PW.7 the doctor with reference to the injuries on PW.2 was totally inconsistent. PW.2 says that she informed the incident to her grandmother and her mother was also present in the house. The Investigating Officer has not examined the mother and the grandmother. Since there was no cogent and consistent evidence to prove the charge beyond reasonable doubt, the trial Court was not justified in convicting the appellant.
Submissions of Smt.Rashmi Jadhav, learned HCGP supporting the impugned judgment and order:
Crl.A.No.1831/2016
6
complaint. The evidence of PW.2 shows that her mother was not in a position to speak and the grandmother of the victim also died. Therefore non recording the statements
of mother and grandmother is not fatal to the prosecution. PW.2 has no reasons to falsely implicate her father. The appellant has no explanation for the injuries found on his daughter or about the observations in her medical report. Therefore the trial Court has rightly drew presumption under Sections 29 and 30 of the Act. The appellant did not rebut the said presumption. The order of the trial Court does not call for any interference.
and the material on record, the point that arises for consideration is “whether the impugned order of sentence is sustainable in law” ?
Analysis
with Section 6 of the Act, the prosecution has to prove the following:
Crl.A.No.1831/2016
7
(ii) They were living together;
(iii) The appellant has committed penetrative
sexual assault on PW.2.
case that he is the father of PW.2. PW.1 aunt and PW.3 maternal uncle of PW.2 deposed that PW.2 is the daughter of the appellant and Rukkamma. They also deposed that the appellant, Rukkamma and PW.2 were living in their house together. The appellant did not dispute his relationship with PW.2 or PW.1 and PW.3. He also did not dispute that himself, his wife and PW.2 were living together.
PW.1 and appellant were in close proximity was also not disputed. He did not even dispute that his wife as on the date of the alleged offence was bedridden due to her
Crl.A.No.1831/2016
8
medical condition. PW.1 in her deposition states that his sister Rukkamma was suffering from tuberculosis and she died on the ninth day of filing of the complaint. PW.2 in her chief examination deposed that at the time of incident her mother was bedridden and in vegetative state. Even that fact was not disputed in her crossexamination.
that the victim was aged 13 years. To prove that fact, the prosecution relied on the evidence of PWs.1 and 2, PW.4
Crl.A.No.1831/2016
9
Head Mistress and PW.7 the doctor, Ex.P4 the school certificate. As per the evidence of PW.4, the date of birth of PW.2 as per the school records is 06.12.2000. The date
of offence is the intervening night of 27.09.2014/28.09.2014. She was not cross-examined. PW.7 the doctor deposed that the victim was aged 13 years. Accused did not dispute the evidence of prosecution witness that the victim was aged 13 years. Therefore the fact of the age of the victim was also proved beyond reasonable doubt.
18. The next question is whether the appellant
committed aggravated sexual assault on PW.2. To prove that fact, the prosecution relies on the evidence of PWs.1 and 2 the complainant and the victim, the evidence of PW.7 the doctor who examined the victim and the police officer. The prosecution further relied on Ex.P3 the statement of PW.2 recorded by Magistrate under Section 164 of Cr.P.C. and the medical report Ex.P5.
PW.2 revealed to her that during the intervening night of
Crl.A.No.1831/2016
10
27.09.2014 and 28.09.2014, when PW.2 was sleeping in her parental house, the appellant sexually assaulted her. She has further stated in the complaint that on 28.09.2014 in the morning the appellant came to her house, made galata insisting PW.1 to send back PW.2 to his house. Apprehending some untoward incident, she did not send PW.2 to her house. She further states that after discussing with her sister, mother and others, she decided to file the complaint. That was first version of sexual assault.
20. The first information report Ex.P8 is said to be
registered on 29.09.2014 at 3.00 p.m. It is no doubt true that PW.1 once states she filed complaint at 10.30 a.m., but reference to filing of the complaint in the first information report is at 3.00 p.m. However, that itself does not give rise to any doubt unless the evidence of the victim itself creates doubt or uncorroborated by other evidence.
victim on 29.09.2014 at 6.30 p.m. and issued medical
Crl.A.No.1831/2016
11
report as per Ex.P5. He also reported the history of sexual assault by the appellant on 28.09.2014 at 1.00 a.m. in his house and that the appellant was under the influence of alcohol at the time of incident, following that she came to the house of PW.1 informed her grandmother about the incident.
Crl.A.No.1831/2016
12
Crl.A.No.1831/2016
13
30 of the Act imputes presumption of culpable mental state of the offence to the accused. Therefore if there is evidence to raise such presumption and the burden shifts to the accused to rebut the presumption, by evidence of PWs.2, 7 and the medical report, the prosecution discharged its initial burden to raise the presumption under Sections 29 and 30 of the Act.
Crl.A.No.1831/2016
14
Thereby the appellant failed to rebut the presumption by leading any contrary evidence as contemplated under Sections 29 and 30 of the Act.
has held that the offence of rape casts shame and humiliation on the victim and her family members, there will be hesitation for the family members to take the matter to the police station. Therefore it was held that delay in filing the complaint in such cases should not be blown out of proportion.
Crl.A.No.1831/2016
15
the predator. Under the circumstances, the delay in filing the complaint itself does not demolish the case of prosecution.
Crl.A.No.1831/2016
16
This Court places on record the able assistance
rendered by Sri Rakshith Jois, learned Amicus Curiae. Registry shall pay him remuneration of Rs.15,000/-.
Sd/JUDGE
KSR
3 issues framed by the court
Whether the presumption under Sections 29 and 30 of the POCSO Act vests in the accused as the father of the victim.
Whether the delay in filing the complaint and discrepancies in evidence are fatal to sustain the prosecution case.
Whether the conviction under Section 376 IPC and POCSO Act is sustainable in law.
4 provisions across 2 enactments
ESHWAR S/O LATE KRISHNAPPA
STATE REPRESENTED BY KARNATAKA THROUGH H.A.L. POLICE
K.S. MUDAGAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
