Partly allowed

Maranna @ Marappa v. the State of Karnataka

Karnataka HC24 May 2023CRL.A/1822/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the criminal appeal in part, modifying the conviction from Section 366A IPC (kidnapping for illicit relation) to Section 366 IPC (kidnapping for marriage/sexual exploitation with self) and reducing the life imprisonment to 12 years rigorous imprisonment.

What did the court decide?

Conviction for Section 366A IPC modified to Section 366 IPC; life imprisonment for Section 376/POCSO reduced to 12 years rigorous imprisonment.

Maranna @ Marappa Vs the State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2023)

¶1

¶2

CRL.A No.1822/2017

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 24^TH DAY OF MAY, 2023

¶5

PRESENT

¶6

THE HON'BLE MRS JUSTICE K.S.MUDAGAL

¶7

AND

¶8

THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO.1822/2017 (C)

¶9

BETWEEN:

¶10

MARANNA @ MARAPPA S/O SHANKARAPPA AGED ABOUT 22 YEARS OCC: PETTY BUSINESS R/AT AMAKUNDI VILLAGE TALUK MOLAKALMURU DISTRICT CHITRADURGA …APPELLANT

¶11

(BY SRI H.S.SURESH, ADVOCATE)

¶12

AND:

¶13

THE STATE OF KARNATAKA BY RAMPUR POLICE

¶14

REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU BENCH

¶15

Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

¶16

SIDDANNA

¶17

S/O LATE HONNURAPPA

¶18

AGED ABOUT 45 YEARS

¶19

R/AT AMAKUNDI VILLAGE

¶20

MOLAKALMURU TALUK

¶21

CHITRADURGA DISTRICT-577 535 …RESPONDENTS

¶22

(BY SMT.RASHMI JADHAV, HCGP FOR R1; R2 SERVED)

¶23

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 01.09.2017 AND SENTENCE ORDER DATED 04.09.2017 PASSED BY SPECIAL II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C.(POCSO).NO.16/2015 CONVICTING THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 354A, 363, 366A, 376, 506 OF IPC AND SECTIONS 4 AND 8 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012.

¶24

¶25

CRL.A No.1822/2017

¶26

THIS CRIMINAL APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

¶27

J U D G M E N T

¶28

Challenging the order of conviction and sentence passed against him for the offences punishable under Sections 354A, 363, 366A, 376, 506 of IPC and under Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) the accused in Spl.C.(POCSO) No.16/2015 on the file of Special II Additional District & Sessions Judge, Chitradurga has preferred the above appeal.

¶29

The appellant was the sole accused before the trial Court. For the purpose of convenience, the parties will be referred to henceforth according to the ranks before the trial Court.

¶30

The case of the prosecution is as follows:

¶31

PWs.8 and 31 were the girls aged below 18 years and they were resident of Amakundi village of Molakalmuru Taluk, Chitradurga District. PW.1 is the mother, PW.2 is the sister and PW.16 is the father of PW.8. PWs.10, 15 and 17 are the mother, father and brother of PW.31. The accused was the

¶32

¶33

CRL.A No.1822/2017

¶34

neighbor of aforesaid witnesses. He was married to a dumb girl and having children.

¶35

The accused with an intention to sexually abuse PWs.8 and 31, on 19.04.2015 at 2.30 a.m. kidnapped them from the lawful custody of their parents from Amakundi village, took them to Nimbalagere Government School in Kudlagi Taluk and held them hostage under criminal intimidation. On 20.04.2015 at 11.00 p.m. he committed penetrative sexual assault on PW.31 under intimidation. Then he took them to a place near Bengaluru, there he kept them hostage for some days. During that period he committed penetrative sexual assault on PW.31 and sexually harassed PW.8 by touching her body parts in lewd manner. Thereby he committed the offences punishable under Section 354A, 363, 366A, 376, 506 of IPC and under Sections 4 and 8 of the POCSO Act.

¶36

The trial Court on hearing the parties, framed the charges against the accused for the offences punishable under Sections 354A, 363, 366A, 376, 506 IPC and Sections 4 and 8 of the POCSO Act. Since accused denied the charges, the trial was conducted.

¶37

¶38

CRL.A No.1822/2017

¶39

In support of the case of the prosecution PWs.1

¶40

to 32 were examined, Exs.P1 to P34, MOs.1 to 24 were marked. After their examination under Section 313 Cr.P.C, the accused did not lead any defence evidence.

¶41

The trial Court on hearing the parties by the impugned judgment and order convicted the accused for the offences punishable under Sections 354A, 363, 366A, 376, 506 of IPC and under Sections 4 and 8 of the POCSO Act. Further the trial Court imposed the sentence of imprisonment

¶42

and fine for the said offences as per the table below:

¶43

Sl. No.	Offences Punishable under Section	Sentence of imprisonment	Sentence of fine	Default sentence
1	376 of IPC and 4 and 8 of POCSO Act	Life Imprisonment	30,000/-	Simple imprisonment of three years
2	366A of IPC	Ten years	20,000/-	Simple imprisonment of three years
3	354A of IPC	Rigorous imprisonment of three years	10,000/-	Simple imprisonment of three years
4	363 of IPC	Seven years	10,000/-	Simple imprisonment of three years
5	506 of IPC	Two years	5,000/-	Simple imprisonment of three years

¶44

The trial Court held that the charges against the

¶45

accused were proved by the evidence of PWs.8 and 31 the victims and their evidence was corroborated by the evidence

¶46

¶47

CRL.A No.1822/2017

¶48

of PWs.1, 2, 10, 15, 16, 17 and 25 the parents and relatives of the victims. The trial Court further held that their evidence was further corroborated by the evidence of official witnesses. So far as the age of the victims the trial Court relying on the evidence of PW.11 and the school certificate Exs.P11 and 12 held that PW.8 was above 18 years and PW.31 was aged below 18 years. Therefore applied the provisions under Sections 4 and 8 of the POCSO Act, so far as the act of the accused relating to PW.31.

¶49

9. Heard both side.

¶50

Submissions of Sri H.S.Suresh, learned Counsel for the appellant/accused:

¶51

So far as the age of the victim/PW.31 there are material contradictions in the evidence of PWs.31, 10, 15 and PW.11. PWs.31, 10 and 15 stated that they do not know the date of birth of victim/PW.31. Therefore the trial Court was in error in concluding that PW.31 was a minor. The evidence on record shows that PWs.8 and 31 and the accused earlier also used to go Bengaluru. In the same fashion they had gone to Bengaluru for their work. The evidence of PWs.8 and 31 shows that throughout their stay with accused at various

¶52

¶53

CRL.A No.1822/2017

¶54

places and while traveling with him they never raised any alarm. The evidence of PWs.10, 15, 17, 25 and 31 shows that they had pet dog in their house which used to bark and bite, if any stranger comes home. That itself falsifies the prosecution theory that the accused kidnapped PW.31 from her house forcibly. Similarly the evidence of PW.8 who was major shows that all along she accompanied the accused without any resistance. Therefore the conviction for the offence under Section 366, 366A of IPC is unsustainable. So far as the penetrative sexual assault on PW.31, the medical evidence is inconclusive. The evidence of PWs.8 and 31 was also not consistent. PW.31 in her cross-examination stated that the accused did not do anything to her. Despite such admission the trial Court convicted the accused which is erroneous. PW.8 with regard to outraging her modesty was also unreliable. Thus the impugned judgment of conviction and sentence suffer perversity and illegality. Alternatively if at all the conviction has to sustain, lenient view may be taken in imposing sentence as the accused has three children and ailing wife.

¶55

¶56

CRL.A No.1822/2017

¶57

Submissions of Smt. Rashmi Jadhav, learned HCGP for respondent:

¶58

The medical evidence and the evidence of PW.11 show that PW.31 was aged below 18 years. In the crossexamination of PW.11 the entries in the admission register were not disputed. Having regard to the social background of PWs.10, 15, 17, 25, 31, PWs.10, 15 and 31 showing their ignorance about the date of birth of PW.31 cannot be blown out of proportion. Under such circumstances the trial Court was justified in accepting the prosecution contention that PW.31 was minor at the time of incident. So far as criminal intimidation and sexual assault PWs.8 and 31 are the victims which stand on par with the injured eyewitnesses. There was no reason for them to falsely implicate the accused. The evidence of PWs.8 and 31 is further corroborated by the medical evidence. Though the doctor in his report said that the evidence with regard to recent sexual intercourse was inconclusive, his evidence coupled with Exs.P5, 20 to 22 shows that hymen of the victims were absent. The accused had no explanation for the same. By the evidence of PWs.8,

¶59

31 and the other witnesses, the initial burden of the prosecution that the accused kidnapped the victims and

¶60

¶61

CRL.A No.1822/2017

¶62

subjected them to sexual abuse was discharged. Therefore, the presumption under Sections 29 and 30 of the POCSO Act comes into play. The accused failed to rebut that presumption. Therefore the trial Court was justified in convicting and sentencing the accused. The impugned judgment and order of conviction and sentence does not call for any interference.

¶63

Submissions of both side and the material on record are carefully evaluated. On considering the submissions of both side and evaluation of evidence the question that arises for consideration is ‘‘ whether the impugned order of conviction and sentence suffers vice of illegality and perversity? ’’

¶64

Analysis:

¶65

Since the accused was charge sheeted on the allegation that he kidnapped the minor girls PWs.8 and 31 and subjected PW.8 to sexual harassment and PW.31 to penetrative sexual assault, the prosecution was required to establish the following factors:

¶66

i. That PWs.8 and 31 were aged below 18 years;

¶67

¶68

CRL.A No.1822/2017

¶69

ii. He kidnapped them from the lawful custody of their parents; and

¶70

iii. Under criminal intimidation the accused

¶71

committed penetrative sexual assault on PWs.8 and 31.

¶72

Reg. the age of victim:

¶73

The trial Court on evaluating the evidence held that the prosecution has failed to establish that PW.8 was aged below 18 years. The State has not preferred any appeal against the said finding. Therefore that attained finality. Therefore the question whether PW.31 was aged below 18 years alone remains for consideration.

¶74

PWs.10 and 15 are the mother and father of the PW.31. At the initial point of time itself, the complainant in Ex.P15 the complaint asserted that PW.31 at the time of offence was aged 16 years. Of course even in the complaint he did not mention the date of birth of PW.31. There is no dispute that PW.31 studied in Government High School, Nagasamudra. PW.11 the Headmaster of Nagasamudra High School in his evidence deposed that as per the school records the date of birth of PW.31 was 30.12.1998 and on that basis Ex.P11 was issued. In the cross-examination of PW.11 absolutely there was no question with regard to the

¶75

10 -

¶76

CRL.A No.1822/2017

¶77

genuineness of the admission record of PW.31. It was only suggested to him that if the date of birth of the student is not found at the time of admission, they make some assessment using technique of touching the hand of the student to the ear and write the date of birth based on that. The witness says that he does not know such procedure.

¶78

PW.11 was an official witness. There is no reason

¶79

for him to depose falsely against the accused. The evidence with regard to entry in the admission record was not impeached. The Hon’ble Supreme Court in para 12 of the judgment in Mahadeo vs State of Maharashtra and Anr¹ held that in assessing the age of the Juvenile victim the same parameter as contemplated under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 applies. It is further held that if the victim has passed matriculation examination first such document shall be relied. If the same is not available then the next document to be relied is the date of birth certificate issued from the school (other than a play school) where the victim first attended. It was further held that in the absence of aforesaid two documents, birth certificate given by the Corporation or Municipal Authority 1 (2013) 14 SCC 637

¶80

11 -

¶81

CRL.A No.1822/2017

¶82

shall be considered and only in the absence of any of the above three, the Court or Investigating Officer has to obtain the ossification test report. Since PW.31 had not completed S.S.L.C., Ex.P11 was relied.

¶83

As per Ex.P11 the date of birth of PW.31 was 30.12.1998. The date of offence is 19.04.2015. Therefore as on the date of commission of the offence she was aged 16 years. It is material to note that PWs.10 and 15 the parents of PW.31 had no permanent employment. The evidence on record shows that PW.15 was working as mason and migrating from his native village Amagundi to Bengaluru, seasonally for masonry work. Ex.P15 the complaint shows that he was illiterate. Considering the economic and social background of PWs.10, 15 and 31 and they pleading their ignorance about the date of birth does not overshadow the evidence of PW.11 and Ex.P11 to the effect that date of birth of PW.31 as 30.12.1998. Such evidence was further corroborated by the evidence of PW.4 the Radiologist and his report Ex.P1 (Radiology report) that PW.31 was aged 16-17 years.

¶84

12 -

¶85

CRL.A No.1822/2017

¶86

Though PWs.31, 10 and 15 were not able to give the date of birth of PW.31, they consistently deposed that at the time of incident the victim was aged 16 years. The trial Court on sound evaluation of the aforesaid evidence has rightly concluded that PW.31 was aged 16 years at the time of incident and PW.8 was above 18 years. That finding does not warrant interference of this Court.

¶87

Reg. Kidnapping:

¶88

According to the prosecution the accused kidnapped PWs.8 and 31 from their village on 19.04.2015 at 2.30 p.m. forcibly. The evidence of the victims as well as their parents and relatives show that they went missing from their house on 19.04.2015 at early hours and they were traced only on 08.05.2015. It is already held that PW.31 was a minor. Having regard to the said fact, even if she did not resist the accused in taking her away from her parents, he had the duty to inform them, if at all he has to take her from the custody of her parents. The accused himself in the crossexamination of PWs.8 and 31 suggests that they did not raise any resistance or alarm when they were traveling with him. Only an attempt was made to say that the travel history given by PWs.8 and 31 was not consistent with each other

¶89

13 -

¶90

CRL.A No.1822/2017

¶91

and with other evidence on record. In the cross-examination of PW.8, the accused himself suggests that victim woke up after she reaching Nimbalagere village. He further suggested that in Maramma Temple of Ganagatte Village where they stayed there was rush of people, she could have escaped or resisted the accused. He himself suggests that they had stayed together in that Temple during that night. He also suggested that during traveling from Kotturu to Bengalure the accused fetched breakfast for them.

¶92

Similar suggestions were made in the crossexamination of PW.31 also. The evidence of PWs.8 and 31 shows that the accused luring PW.31 a minor took her away from her parental house. Similarly he lured PW.8 also. Thus if not the criminal intimidation, the evidence on record clearly shows that the accused enticed PWs.8 and 31 took them away from the custody of their parents. Since PW.31 was a minor her consent for such taking was no consent in the eye of law. Therefore, the trial Court has rightly held that such act of the accused so far as it relates of PW.31 is an act of kidnapping.

¶93

14 -

¶94

CRL.A No.1822/2017

¶95

Reg. Penetrative sexual assault on PW.31:

¶96

PW.31 in her statement before Investigating

¶97

Officer, Magistrate as well as before the Court stated that the accused subjected her to penetrative sexual assault. PW.8 also deposed that the accused subjected PW.31 to sexual assault and PW.31 divulged the same to her. The evidence on record shows that the accused on taking PWs.8 and 31 had lodged them in one room in a place near Bengaluru and as well as near school at Nimbalagere, Kodlagi Taluk.

¶98

The evidence of PWs.8, 31, PW.7 the women PC, PW.21 the PSI and the victims’ parents shows that PWs.8 & 31 were finally traced at Nimbalagere village, the accused was apprehended in Nimbalagere bus stand and PWs.8 and 31 were rescued from the said place. That goes to show that the accused held the victims as hostage from 19.04.2015 to 08.05.2015 i.e. for more than 18 days. PW.31 is the victim of penetrative sexual assault. She stands on par with the injured witnesses. In her statement before the Investigating Officer, learned Magistrate and the Court, she unequivocally states that the accused committed penetrative sexual assault on her.

¶99

15 -

¶100

CRL.A No.1822/2017

¶101

Pointing to PW.31’s statement in chief-

¶102

examination that the accused did not do anything to her in Nimbalagere it was contended that the same falsified the contention of sexual assault. PW.31 again in her chiefexamination contended that the accused committed penetrative sexual assault in a small room near Nimbalagere School. The evidence discloses that initially the accused had taken the victims to Nimbalagere School a public place and there they stayed for sometime till they searched for the room near the school. Therefore PW.31 says that he had not committed any misconduct in school premises. But stated clearly about he committing penetrative sexual assault in the room near the school.

¶103

PW.31’s evidence shows that accused took her and PW.8 in auto-rickshaw from Ganagatte Maramma temple. Then they went to Bangalore. From Bangalore they returned again to Nimbalagere. She says that he committed penetrative sexual assault on her at that time in a room near school. Therefore there is no merit in the contention that there is clear admission on the part of PW.31 that the accused did not commit sexual assault on her.

¶104

16 -

¶105

CRL.A No.1822/2017

¶106

PW.31’s evidence was further corroborated by the evidence of PW.6 the doctor who examined PWs.8 and 31 and issued Ex.P20 to Ex.P22 the preliminary examination reports of PW.8 and PW.31 respectively. In Ex.P21 it is clearly recorded that the hymen of PW.31 was absent totally. The evidence of PW.6 and the medical reports further show that PW.31 gave history that the accused kidnapped her with promise to marry and committed rape on her.

¶107

Similarly, the preliminary medical examination report Ex.P5 pertaining to PW.8 shows that PW.8 gave history that the accused kidnapped her with promise to marry her and committed rape on her. Ex.P5 shows that hymen of PW.8 was totally absent. This medical evidence corroborates the evidence of PWs.8 and 31 that they were subjected to sexual abuse by the accused. The medical reports coupled with the evidence of PW.6 and history given before him show that the accused kidnapped them luring them of love and marriage.

¶108

So far as PW.31 she was aged below 18 years. By the evidence of PWs.8, 31 and 6, the prosecution discharged its initial burden that PW.31 was kidnapped from the lawful

¶109

17 -

¶110

CRL.A No.1822/2017

¶111

custody of her parents with intention to sexually abuse her.

¶112

Therefore presumption under Sections 29 and 30 of the POCSO Act that the accused committed the offences and he had culpable mental state in commission of such offences arises. Therefore it was for him to rebut the said presumption. Though the accused suggested to PW.8 and PW.31 in their cross-examination that they travelled and stayed with him at several places, they did not raise any resistance or alarm, in his examination under Section 313 of Cr.P.C. he did not give any such explanation and he did not lead any defence evidence. The evidence of PWs.1, 16 and 2 the parents and the sister of PW.8, PWs.10, 15 and 17 the parents and brother of PW.31 and the evidence of PW.25 shows that victims gave same version before them also after they were traced and rescued from Nimbalagere bus stand.

¶113

Reg: Section 354 A of IPC

¶114

PW.8 in her deposition stated that the accused was touching her chest, private part and other parts of the body in a lewd manner despite her resistance. She also says that once when PW.31 was unwell, he committed penetrative sexual assault on her also. The trial Court considering overall evidence on record held that the offence of penetrative

¶115

18 -

¶116

CRL.A No.1822/2017

¶117

sexual assault on PW.31 after kidnapping her and eloping with PW.8 from her village was established by cogent and consistent evidence. So far as PW.8, the trial Court held that

¶118

the accused tried to outrage her modesty by touching her body parts in a lewd manner. On over all assessment of the evidence on record and the reasons supplied by the trial Court, it cannot be said that except for the offence under Section 363 of IPC, the impugned judgment and order of conviction suffers any infirmity.

¶119

So far as the conviction under Section 363 of IPC, the trial Court had charged the accused for the offences punishable under Sections 363, 366A of IPC both. The offence under Section 366A of IPC applies where the victim is kidnapped with an intention to force her to have illicit sexual relationship with another person. If the victim is kidnapped to force her to have sexual relationship with the kidnapper himself, Section 366 of IPC applies. Therefore the conviction should have been for the offence under Section 366 of IPC and not for Section 366A of IPC. Since the offence under Section 366 of IPC is a major offence, the charge under Section 363 of IPC merges with the same more particularly

¶120

19 -

¶121

CRL.A No.1822/2017

¶122

when PW.8 being minor was not proved. Therefore the order of conviction so far it relates to Section 363 of IPC needs to be set aside and the conviction for the offence punishable under Section 366A of IPC needs to be modified to Section 366 of IPC.

¶123

Reg: Sentence

¶124

So far as the order of sentence, learned Counsel for the accused/appellant seeks indulgence of this Court on the ground that the accused has repented for his acts and has dependant wife and children. It is also submitted that his wife is admittedly dumb and now she is suffering from some ailments. Further the accused has no other criminal antecedents.

¶125

As per the charge sheet records, at the time of the offence, the accused was aged 22 years. He has already undergone detention of 8 years. The evidence on record shows that PW.8 though major under the inducement accompanied him. PW.31 under the inducement of love and marriage came in his clutches.

¶126

Considering over all facts and circumstances of the case and the detention already undergone by the

¶127

20 -

¶128

CRL.A No.1822/2017

¶129

accused, imprisonment for life is disproportionate. Under the circumstances, the sentence of imprisonment imposed by the trial Court has to be modified. The appeal deserves to be allowed in part. Hence the following:

¶130

ORDER

¶131

The appeal is partly allowed.

¶132

The order of conviction is modified as follows:

¶133

The appellant/accused is convicted for the offences punishable under Sections 354A, 366, 376 and 506 of IPC and Sections 4 and 8 of the POCSO Act.

¶134

The impugned order of sentence for the offences punishable under Sections 354A and 506 of IPC is hereby confirmed.

¶135

For the offence under Section 366 of IPC, the appellant/accused is sentenced to rigorous imprisonment of ten years and fine of Rs.10,000/-. In default to pay the fine amount, he shall undergo simple imprisonment for six months.

¶136

For the offence under Section 376 of IPC and Sections 4 and 8 of the POCSO Act, the appellant/accused is sentenced to rigorous imprisonment of 12 years and fine of

¶137

21 -

¶138

CRL.A No.1822/2017

¶139

Rs.30,000/-. In default to pay the fine amount, he shall undergo simple imprisonment for six months.

¶140

The order of the trial Court with regard to disposal of the properties and reference of the matter to the District Legal Services Authority for payment of compensation to the victims and concurrent running of the sentence is maintained.

¶141

The trial Court shall issue modified conviction warrant accordingly.

Sd/JUDGE

Sd/-

JUDGE

PKN,KSR List No.: 1 Sl No.: 4

Maranna @ Marappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Maranna @ Marappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Krishnappa @ Kittappa Vs State of Karnataka

The State of Karnataka Vs Muniyappa

Sri Syed Ali Vs State of Karnataka

Basavaraju Vs the State

Smt Lakshmamma Vs the State of Karnataka

Nagaraju Vs State of Karnataka by