Dismissed

Mr.Muneendra v. State of Karnataka

Karnataka HC5 Jan 2022CRL.A/204/2016

Case brief

AI extract

What is this about?

This criminal appeal against conviction and sentence for POCSO and IPC offences was dismissed. The High Court upheld the trial court‚ formation that the prosecution evidence was credible and the presumptions under POCSO were not rebutted, concluding the appellant had already served the sentence.

What did the court decide?

The appeal was held to have no merit and was dismissed accordingly.

Mr.Muneendra Vs State of Karnataka — Child Custody and Guardianship | Karnataka HC (2022)

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Crl.A.No.204/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 05^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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CRIMINAL APPEAL No.204/2016

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BETWEEN: MR.MUNEENDRA AGED ABOUT 24 YEARS S/O.NARAYANASWAMY R/AT NO.10, 1^ST CROSS NEAR MASJID, BASAWESHWARA LAYOUT NAGASHETTY HALLI SANJAYNAGAR BANGALORE- 560 094 …APPELLANT

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(BY SRI M.NARAYANA REDDY, AMICUS CURIAE)

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AND:

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STATE OF KARNATAKA REP. BY THE INSPECTOR SANJAYNAGAR POLICE STATION SANJAYNAGAR BANGALORE- 560 094 …RESPONDENT

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(BY SRI H.S.SHANKAR, 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 OF SENTENCE DATED 27.01.2016 PASSED BY LIV ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY IN SPL.C.C.NO.576/2014.

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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

Crl.A.No.204/2016

J U D G M E N T

Aggrieved by his conviction and sentence for the offences punishable under Sections 354 and 506 of IPC, Section 9(m) read with Section 10, Section 11 read with Sections 12 and 18 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short), the accused in Spl.C.C.No.576/2014 has preferred the above appeal.

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The appellant was prosecuted in

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Spl.C.C.No.576/2014 on the file of LIV Additional City Civil & Sessions Judge, Special Court for the aforesaid charges on the basis of the charge sheet filed by Sanjaynagar police in Crime No.223/2014 of their police station.

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The case of the prosecution in brief is as

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follows:

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(i) PWs.1 and 2 are the mother and father of PW.3 the victim girl aged 8 years. The house of the appellant situated after crossing two houses from the

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house of PW.3. The sister of the appellant was conducting tuitions for the children living around her house.

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(ii) On 01.10.2014 at 2.00 p.m., the appellant

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called the victim to his house in the guise of fetching him some nippattu from the shop. He paid some money. She brought nippattu from the shop and gave that to him. When she was about to return to her house, the appellant gripped her, closed the doors, shut her mouth and pressed the breast. Further he forced her to place his penis in her mouth. The victim resisted. He threatened her of her life if she reveals the incident to others and left her.

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(iii) On reaching the home, the wailing victim informed PW.1 about the incident. PW.5 runs a shop near the house of the victim and the appellant. He found panic PWs.1 and 3. They revealed the incident to him. He took them to the police station.

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(iv) PW.1 filed the complaint before PW.10 the

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Sub-Inspector of Police of Sanjaynagar police station as per Ex.P1. On the basis of such complaint, he registered the first information report as per Ex.P10, arrested the

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appellant and recorded his voluntary statement on the same day.

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(v) PW10 sent the victim to PW.9 the Medical

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Officer of Dr.Ambedkar Medical College and Hospital for medical examination. The doctor examined the victim and gave his certificate as per Ex.P8.

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(vi) On 02.10.2014, PW.10 conducted the spot mahazar as per Ex.P2 in the presence of CWs.10 and 11. The victim showed the spot to the Investigating Officer. The Investigating Officer recorded the statements of the witnesses, collected the medical examination report.

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(vii) On the requisition of the Investigating Officer, the victim was examined by the Judicial Magistrate under Section 164 of Cr.P.C and on completing the investigation, he filed the charge sheet.

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On hearing both side, the trial Court framed the charges for the offences punishable under Sections 354 and 506 of IPC, Section 9(m) read with Section 10, Section 11 read with Sections 12 and 18 of

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POCSO Act. Since the appellant denied the charges,

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the trial was conducted. In support of it’s case, the prosecution examined PWs.1 to 11 and got marked Exs.P1 to P12. The trial Court examined the appellant with reference to the incriminating material. He did not lead any evidence.

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The trial Court on appreciating the evidence on record by the impugned judgment and order convicted the appellant for the charges and sentenced him as follows:

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Sl. No.	Conviction for offence U/Sec.	Sentence	Fine in Rs.	Default sentence
1	9(m) r/w Section 10 of POCSO Act	Rigorous imprisonment of five years	30,000/-	Simple imprisonment of six months
2	Section 11 r/w Sections 12 & 18 of POCSO Act	Rigorous imprisonment of one and half years	10,000/-	Simple imprisonment of four months
3	506 of IPC	Rigorous imprisonment of one year	10,000/-	Simple imprisonment of three months

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The trial Court holds that the charges were proved by the testimony of PW.3 the victim girl and the same is corroborated by the evidence of her parents PWs.1 and 2, and the Investigating Officer PW.10.

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Submissions of the learned Amicus Curiae:

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There are material contradictions in the evidence of PWs.1 and 2 regarding the place from where PW.3 was picked up. Similarly there are material contradictions in the evidence of PWs.1 and 3 and the first information report regarding the time of the offence. PWs.1 and 10 depose that PW.5 informed the police about the incident, therefore the complaint Ex.P1 was hit by Section 162 of Cr.P.C. PW.3 is not sterling witness. Therefore the benefit of all such contradictions and inconsistency shall go to the accused.

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Submission of the learned High Court Government Pleader:

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As per the prosecution, the appellant with culpable intention to commit the offence started to spot PW.3 from 9 a.m. However, he could not succeed in the first attempt. Ultimately took her at 2 pm. Therefore there is no material contradictions in the evidence with regard to the time and place of the offence. The evidence of PW.3 is not discredited. What is required to be

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registered under Section 154 of Cr.P.C. is concrete information about the commission of the cognizable offence. Even according to PWs.1 and 10, PW.5 only informed the police that some untoward incident has happened. That cannot be called as the information under Section 154 of Cr.P.C. The presumption under Sections 29 and 30 of the POCSO Act were not rebutted. The appellant has already served the sentence and he is released on 23.10.2019. Therefore nothing survives for consideration in this appeal.

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Having regard to the rival contentions, the

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point that arises for consideration is:

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“ Whether the impugned order of

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conviction and sentence recorded by the trial Court is sustainable in law?’ ’.

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The appellant was tried for the charges for the offences punishable under Sections 354 and 506 of IPC, Section 9(m) read with Section 10, Section 11 read with Sections 12 and 18 of the POCSO Act and ultimately

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convicted for the said offences. Section 9(m) of the

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POCSO Act reads as follows:

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“ 9. Aggravated Sexual Assault. -

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(m) whoever commits sexual assault on

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a child below twelve years ; or”

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is said to commit aggravated sexual assault.

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The term ‘sexual assault’ is defined under

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Section 7 of the POCSO Act which reads as follows:

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“7. Sexual Assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

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Section 6 of the POCSO Act as it stood as on

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the date of offence provided for punishment for

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aggravated penetrative sexual assault as follows:

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“6. Punishment for aggravated penetrative sexual assault. - (1) Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.”

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Section 11 of the POCSO Act deals with definition of sexual harassment and Section 12 of the POCSO Act makes the offence under Section 11 of the POCSO Act punishable. For the purpose of this case, Section 11(1) of the POCSO Act is relevant which reads as follows:

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“ 11. Sexual harassment. - A person is said to commit sexual harassment upon a child when such persons with sexual intent .-

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(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child ;”

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The penal provision of Section 12 of the

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POCSO Act reads as follows:

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“12. Punishment for sexual harassment.- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.”

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The allegation of the prosecution is that the appellant with sexual intent pressed the breast of PW.3 and attempted to put his penis in her mouth which would attract Sections 7 and 9(m) of the POCSO Act. It is

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further alleged that he exhibited his private part to the child with object that PW.3 shall see that. Thereby he committed the offences punishable under Sections 10 and 12 of the POCSO Act. By such act he outraged her modesty which is punishable under Section 354 of IPC and he threatened PW.3 of her life if she reveals the incident to anybody, thereby he committed the offence punishable under Section 506 of IPC.

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In prosecution for the offence under POCSO Act Sections 29 and 30 of the POCSO Act confer the presumption in favour of the commission of the offence and the culpable mental state of the accused. Sections 29 and 30 of the POCSO Act read as follows:

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“29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

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30. Presumption of culpable mental state.- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such

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mental state with respect to the act charged as an offence in that prosecution.

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(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

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Explanation.-In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.”

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The evidence has to be appreciated in the light of Sections 29 and 30 of the POCSO Act. The evidence on record shows that the appellant did not dispute that his house and house of PWs.1 to 3 situated close to each other in the same vicinity. The suggestions made to the witnesses themselves show that the appellant admitted that the families of the appellant and PWs.1 to 3 were known to each other. It was also not disputed that at the time of the incident the victim was aged 8 years. The only defence of the appellant is that he has some rivalry with PW.5 Suresh Tent House Owner and at his behest he is falsely implicated in the case.

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The case of the prosecution was based on the evidence of:

(i) PW.3 the victim;

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(ii) PWs.1 and 2 the parents of the victim;

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(iii) PW.5 who allegedly found PWs.1 and 3 in a

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panic state and guided them to go to the police station;

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(iv) PW.4 the sister of the appellant;

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(v) PW.6 the landlord of house of PWs.1 to 3;

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(vi) PWs.7, 8 and 11 neighbours who were

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res gestae witnesses;

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(vii) PW.9 the medical officer who examined PW.3

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the victim;

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(viii) PW.10 the Investigating Officer.

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PWs.4 to 8 and 11 did not support the case of the prosecution. PWs.4 to 8 and 11 only state that they came to know about occurrence of the incident when the police visited the spot, but they do not have any direct knowledge of the incident.

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So far as the medical evidence, PW.9 the doctor and Ex.P8 the medical examination report of the victim PW.3 state that there were no external injuries or indication of any recent sexual activities on the body of the victim. Therefore the entire case of the prosecution

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rests on the evidence of PW.3 the victim and PWs.1 and 2 her parents.

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The complaint was submitted by PW.1 based on the revelation of the incident by PW.3. In her complaint she said that initially the appellant once approached PW.3 and sent her for fetching ‘nippattu’ at 9 a.m. Again for the second time in the afternoon he called her for fetching ‘nippattu’ at 4 p.m. PW.3 came home crying and revealed the incident to her.

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It is true that PWs 1 to 3 in their evidence did not depose about the 9.00 a.m. incident. Since there was no assault on the victim when she was taken home for the first time, the omission in the deposition about the incident at 9 a.m. does not demolish the entire prosecution case.

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The evidence of PW.3 about the appellant taking her at about 2 pm to her house in the guise of fetching ‘nippattu’ for him and then advancing towards her exhibiting private part and insisting her to insert his private part in her mouth is cogent and consistent. She

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has also deposed about he pressing her breast and threatening her of her life if she reveals the incident. The same is not discredited in her cross-examination. She said that she went home crying and revealed the incident.

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PW.1 deposed in tune with the evidence of PW.3. Except for the suggestion that PW5 due to some rivalry against the accused, in collusion with PWs.1 and 2 has falsely implicated him, nothing is elicited to disbelieve the evidence of PWs.1 and 3. PW.2 was only hearsay witness. He says that he came home and learnt about the incident. His evidence is not much material.

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Though it is suggested to PW.1 that she falsely implicated the appellant at the behest of PW.5 due to ill-will between him and PW.5, no such suggestion is made in the evidence of PW.5 himself. Therefore the defence with regard to the false implication at the behest of PW.5 is rightly rejected by the trial Court.

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So far as the contention that Ex.P1 is hit by Section 162 of Cr.P.C, the First Information Report

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contemplated under Section 154 of Cr.P.C is a concrete information about the commission of cognizable offences. No doubt PWs.1 and 3 deposed that they informed the incident to the tent house owner PW.5 and he informed the police. PW.3 said that PW.5 informed the police. PW.1 has not stated how he informed the police. PW.1 states that she filed the complaint Ex.P1. In the crossexamination of PW.5 no suggestion was made to show that he went to police and lodged the complaint. Mere flash telephonic information to the police does not fall under the information of the cognizable offence as required under Section 154 of Cr.P.C. Therefore the contention that Ex.P1 was hit by Section 162 of Cr.P.C also cannot be countenanced.

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The accused did not state the particulars of the alleged rivalry between him and PW.5 either in the examination of the prosecution witnesses or in his examination under Section 313 of Cr.P.C. The presumption under Sections 29 and 30 of the POCSO Act was not rebutted. Considering all such aspects the trial

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court rightly convicted the appellant. Therefore the order of the conviction does not call for any interference.

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Learned Amicus Curiae submits that having regard

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to the age of the appellant, lenient view may be taken while imposing the sentence.

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Since the appellant has already served the sentence, the question of taking lenient view of the sentence does not survive for consideration. Therefore

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the appeal deserves no merit and dismissed accordingly.

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The Court places on record the appreciation for able assistance rendered by Sri M.Narayana Reddy, learned Amicus Curiae . Registry shall pay him the remuneration of Rs.15,000/-.

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Sd/JUDGE

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KSR/PKN

Mr.Muneendra v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr.Muneendra v. State of Karnataka

Case brief

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What did the court decide?

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