Dismissed

Sri H S Yashwanth v. State of Karnataka

Karnataka HC16 Sept 2022CRL.RP/601/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a criminal revision petition filed by an accused seeking discharge from sexual assault charges. The Court held that the trial court correctly rejected the discharge application as there were sufficient materials to proceed to trial, noting that medical evidence alone and variations in victim statements do not preclude a prima facie case.

What did the court decide?

Criminal Revision Petition dismissed as devoid of merit. Charge sheet and case allowed to proceed to trial.

Sri H S Yashwanth Vs State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF SEPTEMBER 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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CRIMINAL REVISION PETITION No.601 OF 2022

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BETWEEN:

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SRI.H.S.YASHWANTH S/O SRI. SHIVARUDRAIAH, AGED ABOUT 31 YEARS, RESIDING AT NO.109, 2^ND MAIN, 2^ND CROSS, BHUVANESHWARI NAGAR, NEAR VIDIA SCHOOL BUS STOP, HESARAGATTA MAIN ROAD, BANGALORE-560059.

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… PETITIONER

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(BY SRI. K.B.NAVEEN KUMAR, ADVOCATE)

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AND:

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STATE OF KARNATAKA, PEENYA POLICE STATION, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560001.

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SMT. J.MANJULA W/O LATE SRI.HOBALESH, AGED ABOUT 30 YEARS, RESIDING AT YASHODAMMA BUILDING, LAKKANNA LAYOUT, NEAR TIPPENAHALLI GOVERNMENT SCHOOL, DODDABIDARAKALLU, NAGASANDRA LAYOUT, BANGALORE-560073.

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… RESPONDENTS (BY SRI. K.NAGESHWARAPPA, HCGP FOR R-1; AND SMT. ARCHANA K.M., AMICUS CURIAE FOR R-2)

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THIS CRIMINAL REVISION PETITION IS FILED U/S.397 R/W 401(5) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 18.02.2022 PASSED BY THE COURT OF HON'BLE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE FTSC-III, AT BANGALORE IN SPL.C.NO.650/2021 ON APPLICATION UNDER SECTION 227 OF CRIMINAL PROCEDURE CODE AND DISCHARGE THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTION 376, 506 OF IPC AND ALSO UNDER SECTION 4 OF POCSO ACT AND ALSO UNDER SECTION 3(2) (V-a), 3(1)(s), 3(1)(r) of PREVENTION OF ATROCITIES ACT, 1989.

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THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present petitioner is the sole accused in

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Spl.C.C.No.650/2021 (Cr.No.81/2021) in the Court of Additional City Civil Court and Sessions Judge – FTSC-III, Bengaluru, (hereinafter for brevity referred to as the ‘Special Court'), for the offences punishable under Sections 376 and 506 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as the 'POCSO Act') and Sections 3(2) (v-a), 3(1)(s), 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter for brevity referred to as the 'SC and ST (POA) Act').

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Crl.R.P.No.601/2022 3

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The summary of the case of the prosecution is

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that the accused who was the friend of mother of the victim girl, and frequently visiting the house of the victim girl and was sleeping along with the victim girl in her house, on the night of 22-02-2021, putting the victim girl to a threat of killing her, subjected her to sexual intercourse and also knowing fully well that she belongs to a Scheduled Caste, has committed the said act and thus has committed the offences punishable under Sections 376 and 506 of IPC and Section 4 of the POCSO Act and Sections 3(2) (v-a), 3(1)(s), 3(1)(r) of the SC and ST (POA) Act. The alleged incident was said to have taken place on 22.02.2021, however, the complaint came to be lodged with respondent No.1-police only on 06.03.2021. After investigation, the respondent-police have filed charge sheet for the above said alleged offences.

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The accused, in the Special Court, filed an application under Section 227 of the Criminal Procedure Code, 1973 (hereinafter for brevity referred to as the

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‘Cr.P.C.') seeking his discharge from the case. The said application, after contest, came to be dismissed as devoid

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of merit by the order of the Special Court dated 18.02.2022. Aggrieved by the said order, the accused has preferred this Criminal Revision Petition.

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Though emergent notice was ordered and the same was served upon respondent No.2, she has remained absent. In view of the fact that since the respondent No.2 was unrepresented, this Court by its reasoned order dated 06.07.2022, appointed learned counsel - Smt.Archana K.M., as Amicus Curiae for respondent No.2 to represent her in this case.

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Learned counsel for the petitioner appeared through video conference, learned High Court Government Pleader for respondent No.1 and Smt. Archana K.M., learned Amicus Curiae for respondent No.2 are present physically in the Court.

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Crl.R.P.No.601/2022

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Though this matter is listed for admission, with

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the consent from both parties, the matter was taken up for arguments on main on merits.

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Heard the arguments from both side. Perused the materials placed before this Court.

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For the sake of convenience, the parties would be

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henceforth referred to as per their rankings before the trial Court.

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After hearing the learned counsels from both side,

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the only point that arises for my consideration in this revision petition is:

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"Whether the impugned order passed by the Special Court on the application filed under Section 227 of the Cr.P.C., by the petitioner herein (accused) is perverse and erroneous, warranting interference at the hands of this Court?"

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Learned counsel for the petitioner submitted that the very statement of the alleged victim girl under Section 164 of Cr.P.C. clearly goes to show that the accused has not committed the alleged act. The victim girl has specifically stated that though the accused had slept on the said night however nothing had happened on the said day. The victim girl also has stated before the learned Magistrate that, in order to avoid visiting of the accused to their house, a false complaint has been lodged. Learned counsel further submitted that even the medical opinion given by the Doctor also clearly goes to show that there was no signs of suggestive sexual intercourse. In such a circumstance, when the alleged victim herself has denied the occurrence of the alleged incident and the medical evidence also in no way supports the case of the prosecution, it has to be inferred that no prima facie case is made out against the accused. As such, the accused deserves a clean discharge. However, the Special Court without considering this aspect, has rejected his

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application. Thus the impugned order now warrants interference at the hands of this Court.

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Learned High Court Government Pleader

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appearing for respondent No.1 and learned Amicus Curiae for respondent No.2 in their arguments submitted that the very first statement of the victim girl to be considered by the Court is that her alleged statement under Section 161 Cr.P.C. wherein she has categorically stated that she was subjected to sexual intercourse by none else than the accused himself. The accused undisputedly is a person known to the family of the victim girl and visiting her house regularly. Therefore, when there is an alleged variation in her statement before the learned Magistrate under Section 164 Cr.P.C. the same requires to be tried in a detailed full-fledged trial, and this Court at this stage cannot choose only the statement under Section 164 of Cr.P.C. They further submitted that the medical opinion also is a mere opinion and the same would be always subject to the finding of the Court after a due trial. As such, it

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cannot be held that there are no prima facie case, on the contrary there is sufficient material to proceed with the

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trial. The allegations are very serious in nature and the offence committed is against the victim girl who was minor in her age at the time of incident. As could be gathered at this stage from the charge sheet materials, the accused is alleged to be a married person having children, however, was very close to the mother of the victim girl. According to the said mother of the victim girl, the accused was responding to the good and bad of her family and was taking care of her daughter i.e., victim girl. Thus, according to both the victim girl and her mother, the accused was a known person to them and since more than two years he was visiting their house regularly without any abatement. The mother of the victim is shown to have stated in her statement before the Investigation officer that her alleged friend i.e., accused was now and then sleeping with her daughter i.e., victim girl but no untoward incident had taken place on those occasions. It is also the content of her statement that even on the alleged date of

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incident also the accused was sleeping with her daughter i.e., victim girl in the night. The statement of the alleged

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victim girl both before the police as well as before the learned Magistrate is also that the accused was sleeping with her on the night of the incident. Therefore, to the extent that the accused was a known person to their family, who was visiting the house of the victim girl regularly and also that on the alleged night of the incident he was sleeping with the girl is not seriously disputed at this stage by the parties. It only the incident which is said to have been taken place on that night that the accused who was said to be sleeping with the girl subjected her to rape, is the dispute between the petitioner and the respondent.

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So far as the incident on the night of 22.02.2021 is concerned, the victim girl in her statement before the Investigating officer has clearly and categorically stated that on the night of the incident the accused was sleeping along with her and forcibly committed rape upon her by putting her to life threat. She has given the details as to

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Crl.R.P.No.601/2022 10

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how he behaved on that night and how she was prevented from alarming other persons sleeping in their house. Thus,

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at the very first instance, the victim is shown to have given a detailed account of incident specifically alleging overt act against the accused and the accused alone. Even in her alleged statement under Section 164 Cr.P.C. also she has stated that on the night of the incident the accused was sleeping beside her in their house. Thus, about the accused sleeping along with her in the night, the victim girl has retained consistency both in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. However, under Section 164 Cr.P.C. she has only stated that nothing had happened on that night. On the contrary, in her statement under Section 161 of Cr.P.C., she has given a detailed account about the incident. This statement of the victim girl appears to be variation on two places has to be kept on one side.

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On the other hand, the mother of the alleged victim girl has categorically both in her statement and further

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statement before the Investigating Officer has maintained the allegation against the accused that the accused had subjected her daughter to rape by putting her life threat. In her further statement she has only made a variation withdrawing the statement against the accused of the alleged offence under SC and ST (POA) Act. However, with respect to the allegations which may attract the offences punishable under Sections 376 of IPC and 506 IPC as well as Section 4 of the POCSO Act, she has adhered to her previous statement without any variation.

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Furthermore, it is her specific contention that her daughter i.e. victim girl did not reveal about the incident to her immediately but after noticing that from 23.02.2021 onwards i.e., from the very next day morning of the alleged incident, her daughter (victim) having found to be in depression, the mother asked her about the reason, it is only then her daughter (victim) proceeded to reveal about the incident. Thus, according to the prosecution as well the complainant the reason for delay in

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filing of the complaint is also non-revelation of the incident by the daughter till her mother suspected looking at depressed mood of her daughter and elicited the details. In such an event, the mother who has stated that it was on her enquiry, the daughter revealed the incident has throughout retained the consistency about the alleged incident. As such, merely because the victim girl who undisputedly was aged 16 years 1 month 7 days as on the date of the alleged incident, as such, the minor in her age, revealed the incident with some delay would not be fatal to the case of the prosecution to take up the matter to the stage of trial.

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Secondly, the petitioner also relied upon the alleged medical report said to have been given by the Doctor who examined the alleged victim girl. No doubt, the Doctor in his opinion after examination of the victim girl has opined that there were no signs of suggestive sexual intercourse. It is heavily relying upon the medical opinion, learned counsel for the petitioner also vehemently submitted that

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without there being any supportive medical evidence, the Special Court does not get a ground to proceed with framing of charge.

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The said argument of the learned counsel for the petitioner also is not acceptable for the reason that admittedly there was a delay of merely 12 days between the date of the incident and the date of medical examination. The very doctor in the very same medical opinion has also mentioned about the history, which history the Doctor has collected from none else than the victim who has stated before the Doctor that she was subjected to sexual assault and rape by the accused, giving the details, timings and the place of the incident. Thus, even before the Doctor, the victim girl has shown to have given the details as per her statement under Section 161 of Cr.P.C. It is only thereafter she has given a different version before the learned Magistrate under Section 164 Cr.P.C. Thus, after several days of the incident, even up to the stage of she being medically examined, the victim

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girl repeatedly contended that she was subjected to rape and sexual assault by the accused on the alleged date of

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incident. This statement cannot be neglected.

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Moreover, the medical doctor has searched for signs of suggestive sexual intercourse nearer to the time of the medical examination. The document which is part of the charge sheet as a medical opinion nowhere mentions as to for what period the signs pertaining to the alleged sexual intercourse was searched for by the Doctor. Nowhere the opinion says that the medical tests were conducted to find out as to whether at any point of time the victim girl was subjected to any sexual assault or sexual intercourse. As such, the medical opinion would be generally depicts only recent sexual intercourse where in the instant case the incident was older of twelve days, as such also, the medical opinion which says that at the time of examination there were no signs of suggestive sexual intercourse, cannot be taken as a final conclusion

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that there was no such sexual intercourse or rape practiced upon the victim on the alleged date of incident. As such also the medical evidence cannot be taken as a sole basis to pronounce the order of discharge of the accused.

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Thus, since there are sufficient materials to proceed further in the matter by the Special Court and considering this aspect, the Special Court has rightly rejected the application filed under Section 227 of Cr.P.C., I do not find any reason to admit this matter for its hearing.

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Accordingly, I proceed to pass the following:

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ORDER

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The Criminal Revision Petition is dismissed as devoid

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of merits for its admission.

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In view of disposal of the main petition, I.A.1/2022 does not survive for consideration.

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Since the offences alleged against the accused includes the offences punishable under Section 376 IPC as well as the offence punishable under the POCSO Act, it is

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needless to emphasise that the Special Court where the Special Case is pending will expedite the matter for its disposal at the earliest.

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The Court, while acknowledging the services rendered by the learned Amicus Curiae for the revision petitioner - Smt. K.M.Archana, recommends an honorarium of a sum of not less than `4,000/- in the case payable to her by the Registry.

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Registry to transmit a copy of this order to the Special Court immediately.

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Sd/JUDGE

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Sri H S Yashwanth v. State of Karnataka

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Sri H S Yashwanth v. State of Karnataka

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