Allowed

The State by Anavatti v. Shankar

Karnataka HC7 Sept 2023CRL.A/503/2017

Case brief

AI extract

What is this about?

High Court allowed State appeal against acquittal of accused for rape and threats to a 15-year-old girl under POCSO Act and IPC. Trial court's reasoning on delay, lack of injuries, and minor discrepancies was rejected. The accused was convicted and sentenced to imprisonment.

What did the court decide?

The accused was convicted under Section 506 IPC and Sections 4, 9(h) read with Section 10 POCSO Act and sentenced to imprisonment: 2 years for IPC offence, 7 years with fine for Section 4, and 5 years

The State by Anavatti Vs Shankar — Child Sexual Offences (POCSO) | Karnataka HC (2023)

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CRL.A No. 503 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE ANIL B KATTI

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CRIMINAL APPEAL NO. 503 OF 2017 (A)

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BETWEEN:

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The State by Anavatti Police, Shivamogga Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001.

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…Appellant

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(By Sri. H.S. Shankar, High Court Govt. Pleader)

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AND:

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Shankar, S/o. Holiyappa, Aged about 29 years, Agriculturist, R/o. Lakkavalli Village, Soraba Taluk, Shivamogga. 577 429.

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…Respondent

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(By Sri. P.B. Umesh for Sri.R.B. Deshpande, Advocate)

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This Criminal Appeal is filed under Section 378(1) and (3) of Code of Criminal Procedure, praying to grant leave to appeal against the impugned judgment and order of acquittal dated

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28.10.2016 passed by the learned I Additional Sessions Judge at Shivamogga in Sessions Case No.214/2013, thereby acquitting the respondent-accused of the offence punishable under Section 506 IPC and under Sections 4, 9(h) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012; set aside the judgment and order of acquittal dated 28.10.2016 passed by the learned I Additional Sessions Judge at Shivamogga in S.C.No.214/2013 for the offences punishable under Sections 506 of the IPC and under Sections 4, 9(h), read with Section 10 of the POCSO Act and convict and sentence the accused for the offences punishable under Sections 506 of IPC and under Sections 4, 9(h) read with Section 10 of the POCSO Act, in the interest of justice and equity.

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This Criminal Appeal having been heard through physical hearing/video conferencing hearing and reserved on 10-08-2023 , coming on for pronouncement of judgment, this day, Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :

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J U D G M E N T

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The State has filed this appeal under Section 378 (1)

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and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), challenging the judgment of acquittal dated 28-10-2016, passed by the learned I Additional Sessions Judge at Shivamogga, (hereinafter for brevity referred to as the

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"Sessions Judge's Court") in Sessions Case No.214/2013, acquitting the accused of the offences punishable under Section 506 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and Sections 4 and 9(h) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as "POCSO Act").

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The summary of the case of the prosecution before the learned Sessions Judge's Court was that, on the date 18-05-2013, when the complainant (victim girl) aged about 15 years was alone at home in Lakkavalli village, Soraba Taluk, within the limits of the complainant Police Station and washing the utensils in the backyard of her house, at about 12:45 p.m., the accused went there from her back side, closed her mouth with his hands, dragged her inside her house and closing the door and giving a life threat by showing a Knife, putting a Towel in her mouth, removed her clothes and also removing his clothes committed an aggravated sexual assault upon her. At about 1:30 p.m. on that day, when the neighbour

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Smt. Lalithamma came and knocked the door, the accused putting on his undergarment and holding his pant, opened the door and went outside. When questioned by the said Lalithamma, he told that he had been there to ask for a drum. Entering inside, Smt. Lalithamma questioned the complainant (victim girl) the reason for her screaming. The victim girl told her that the accused had committed rape upon her. On the same day, at about 6:00 p.m., the parents of the victim girl returned home and Lalithamma and the victim girl told them about the incident. However, the parents of the victim girl fearing that the respect of the family would be spoiled, kept quiet. The victim girl changed her dress and washed them too. However, subsequently, thinking that if they kept quiet like that it would be of no meaning, they got a complaint lodged before the Police through the victim girl on the date 22-05-2013.

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After registering the complaint and conducting

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investigation, the Police filed charge sheet against the

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accused for the offences punishable under Section 506 of

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the IPC and under Sections 4, 9 and 10 of the POCSO Act.

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Since the accused pleaded not guilty, the trial

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was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all eleven (11) witnesses from PW-1 and PW-11, got produced and marked documents from Exs.P-1 to P-14(a) and produced Material Objects from MO-1 to MO-8. From the accused’ side, neither any witness was examined nor any documents were got marked as exhibits.

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After hearing both side, the learned Sessions

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Judge’s Court, by its judgment dated 28-10-2016, acquitted the accused of the offences punishable under Section 506 of the IPC and under Sections 4, 9(h) read with Section 10 of the POCSO Act. Challenging the same, the appellant - State has preferred the present appeal.

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The appellant –State, represented by the learned

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High Court Government Pleader and the respondent/

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accused, represented by his learned counsel are physically appearing before the Court.

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The Sessions Judge’s Court records were called for and the same are placed before this Court.

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Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge’s Court's records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge’s Court.

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After hearing the learned counsels from both side, the points that arise for our consideration in this appeal

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are:

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[i] Whether the prosecution has proved beyond reasonable doubt that on the date 18-05-2013, at about 12:45 p.m., in the house of the victim girl (PW-1) at Lakkavalli Village, Soraba Taluk, within the limits of the complainant Police Station, the accused gave life threat at the point of

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Knife to the victim girl and thereby committed an offence punishable under Section 506 of the IPC?

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[ii] Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused committed penetrative sexual assault upon the victim girl (PW-1) who was minor in her age and thereby has committed the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012?

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[iii] Whether the prosecution has proved beyond reasonable doubt that, the accused, on the date, time and place mentioned above, showing the deadly weapon i.e. Knife and threatening the victim girl (PW-1) who was minor in her age, committed aggravated sexual assault upon her and thereby has committed the offence punishable under Section 9(h) and Section 10 of the Protection of Children from Sexual Offences Act, 2012?

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[iv] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

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Learned High Court Government Pleader appearing for the appellant-State in his argument submitted that, though the prosecution has placed

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sufficient material to show that the victim girl was minor in her age, however, the Sessions Judge's Court doubted the same. It did not appreciate the prosecution evidence in its proper perspective. The medical evidence placed by the prosecution had fully corroborated the case of the prosecution. However, the Sessions Judge's Court by itself raising some untenable doubts disbelieved the case of the prosecution resulting in acquittal of the accused, as such, the same warrants interference at the hands of this Court.

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Per contra, learned counsel for the respondent/ accused in his arguments submitted that, there is a delay of four days in lodging the complaint by the complainant (victim girl). The prosecution has not shown any reason for the parents of the accused not questioning the accused after the alleged incident till lodging of the complaint. As such, the same creates doubt in the case of the prosecution. He also submitted that PW-2 - Smt. Lalithamma, being a relative of the victim girl is an interested witness. He submitted that the age of the girl was not proved by the prosecution. The non-existence of

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any external injuries upon the body of the victim girl also creates a doubt in the case of the prosecution. He submitted that the non-recording of the statement of the girl under Section 164 of the Code of Criminal Procedure, 1973, (hereinafter for brevity referred to as "the Cr.P.C") further increases the doubt in the case of the prosecution. Finally, stating that there is discrepancy in the evidence of PW-1 and PW-2 about the manner in which the accused was said to have taken his pant with him after the alleged incident, the learned counsel submitted that the impugned judgment warrants no interference at the hands of this Court.

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Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offence punishable under Section 506 of the IPC and Sections 4 and 9(h) read with Section 10 of the POCSO Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as

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innocent in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.

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(a) Our Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

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“ 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

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(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:

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“ 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court’s view can be termed as a possible one,

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particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.

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It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed in this matter.

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According to the prosecution, the complainant (victim girl) was aged fifteen years ten months as on the date of the alleged offence which is dated 18-05-2013.

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The victim girl who was examined as PW-1 (CW-1) in

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her examination-in-chief has stated that, as on the date of the alleged offence, she was aged 15 years. Her said statement regarding her age has not been denied in her cross-examination.

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PW-4 (CW-18) - Dr. Geetha M., Medical Officer

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at the General Hospital at Shikaripura, has stated that, on the date 22-05-2013, she has medically examined the victim girl who was brought to her by the complainant Police with the history of sexual assault. The witness has stated that after examining the victim girl, she has given her report as per Ex.P-4 and her opinion as per Ex.P-5. The contents of Ex.P-4 and Ex.P-5 have not been denied or disputed from the accused' side. Ex.P-4, which is the Wound Certificate and Ex.P-5, which is the medical opinion of the Doctor, both show the age of the victim girl as 15 years. However, neither of these are any medical opinion regarding the age of the victim girl, but while describing the victim girl with her name and the name of her father, her age is shown as 15 years. Still, the said mentioning

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about the age of the victim girl has not been denied in the cross-examination of PW-4.

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PW-5 (CW-15) - Veerappa Daani, Head Master of the Government Girls High School, Anavatti has stated that, as requested for by the complainant Police, he has issued a Certificate, certifying the age of victim girl which was based upon the entries made in the School admission records. The witness, stating that as per the School records, the date of birth of the victim girl is 05-10-1998, has identified the Certificate issued by him at Ex.P-6.

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In his cross-examination, neither the date of birth of the victim girl as stated by this witness nor the correctness of the document at Ex.P-6 was denied.

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PW-10 (CW-5) - Rajendra Swamy, the father of the victim girl has stated in his evidence that, as on the date of the complaint, the victim girl was aged 15 years. His evidence regarding the age of the victim girl has not been denied in his cross-examination from the accused' side.

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Thus, the above evidence would clearly go to

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establish that, as on the date of the alleged offence which is said to have taken place on the date 18-05-2013, the age of the victim girl was fourteen (14) years and seven

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(7) months, as such, she was minor in her age.

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The evidence of PW-1 - the victim girl, PW-7 -

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Smt. Roopa, and PW-10 - Sri. Rajendra Swamy, would go to show that, PW-7 and PW-10 are respectively the mother and father of the victim girl and all of them along with two sisters and one brother and the grandmother of the victim girl were all residing in the same house at a place called Lakkavalli village in Soraba Taluk. The evidence of PW-1 and PW-10 that their family knows the accused who also hails from the same village is not in dispute.

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About the occurrence of the alleged incident, PW-1 the victim girl in her evidence has stated that on the date of the incident, his father had been to the market at a place called Anavatti and others in the family were not at home. Her mother had been to her relatives' house and grandmother had been to the field for agricultural work. She was alone at home. At about 12:45 in the afternoon,

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while the victim girl was washing the utensils in the backyard of her house, the accused came from behind and closed her mouth with his hand firmly, taking her inside

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her house and closing the door, threatened her of killing her in case if she raised her voice. Since she was at the point of a Knife, she got scared. He put a Towel into her mouth and made her to lay down on the floor on her back. He removed the pant and underwear worn by her so also his pant and underwear. Then he kissed her, hugged her and committed rape upon her. At about 1:30 p.m., one

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Smt. Lalithamma called her and asked her to open the door. At that time, the accused leaving the Knife which was with him there itself, picked up his pant and went outside from the front door. The said Lalithamma asked the accused while he was going out as to why he had been

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there, for which, the accused uttered a lie stating that he had been there to take a drum. The witness (victim girl) stated that the said Lalithamma enquired her also, at which, she stated that the accused has committed rape upon her and had sexual intercourse with her. Pacifying

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her, the said Lalithamma went to her home. The witness further stated that in the evening at about 6:00 p.m., her parents and grandmother returned home, for whom too, she revealed about the incident of the accused subjecting her to rape. Lalithamma also came again and informed them about the matter. The members at home had kept quiet thinking that the reputation of the family would be spoiled. However, after four days, a complaint was given with the complainant Police. Stating so, the witness has identified her complaint at Ex.P-1. She also stated that after she lodged the complaint with the Police, the Police took her to Hospital at Shikaripura. She specifically stated that the incident of rape had taken place on the date 18-05-2013 and the Police complaint was given on the date 22-05-2013. She shown the spot to the Police who

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had visited her house. The Police drew a mahazar and collected her clothes, Towel and Knife which were there in the home. Stating so, the witness has identified the said panchanama at Ex.P-2 and has identified the Knife at MO-1, Towel at MO-2, her dress materials at MO-3, MO-4

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and MO-5 respectively. She further stated that, without knowing, she had washed those clothes and also had taken bath. She also stated the accused had left MO-1 and MO-2 at her home. The witness has identified one T- shirt, one pant and one undergarment as the clothes worn by the accused and they were marked as MO-6, MO-7 and MO-8 respectively.

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In her cross-examination, she has given the details about the location of her house to that of the house of the accused in Lakkavalli village. She further stated that adjoining the house of Lalithamma on the backside of the house of Lalithamma, her house is situated. There is a bifurcating wall between the house of Lalithamma and her house. She has also stated that the house of the accused is approximately at a distance of 50 to 100 sq.ft. from her house. She also stated that at the time of the incident, her elder sisters and younger brother had been to School. The accused had taken her to the kitchen in her house and after making her to lay down on the floor, he had subjected her to rape. She stated that after she revealed

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about the incident to her parents, they did not go to the house of the accused and enquire him. She stated that she did not resist to the accused. She also denied a suggestion that on the date 19-05-2013, she joined by her mother had been to a cradle ceremony in the house of the elder sister of the accused. She denied that the accused did not visit her house on the date of the incident.

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The second witness who has spoken about the incident is PW-2 (CW-2) - Smt. Lalithamma. She too has stated that, the house of the victim girl is adjacent to her house. On the date of the incident, while she was at home, she heard the yelling noise and went to the house of the victim girl and asked her to open the door. She opened the door at which time the accused came out of the house. At her enquiry, the accused told her that he had been there to request for a drum and he was wearing the pant. After going inside the house, she enquired the victim girl, who stated to her that the accused had committed rape upon her after threatening her with a Knife and putting a Towel in her mouth.

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The witness further stated that, in the evening the

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parents of the victim girl returned home, to whom she narrated about the incident, so also the victim girl narrated to them about the incident. Fearing about the spoiling of the reputation of their family, they decided not to lodge a complaint. However, after two or three days, they lodged the complaint with the Police. Stating so, the witness has identified the accused in the Court.

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In her cross-examination, she gave more details about the location of her house with that of the house of the victim girl. She also stated that at the time of the incident, except the victim girl, there were none else in her house. She further stated that, inside the said house, she saw a Knife and a Towel fallen on the ground in the kitchen of the victim girl. She admitted a suggestion as true that, two or three days prior to the victim girl lodging the complaint, there was a cradle ceremony in the house of the elder sister of the accused, to which she did not attend, but the victim girl and her mother had attended.

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She did not admit the denial suggestions about the incident as true.

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PW-7 (CW-6) - Smt. Roopa, the mother of the

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victim girl has stated that, after her return in the evening on the date of the incident, her daughter i.e. the victim girl told her that, on the same day afternoon, between the time 12:45 p.m. and 1:30 p.m., the accused dragged her inside the house and after putting a Towel into her mouth and showing the Knife committed rape upon her. At the time when she was revealed about the incident by her daughter, her mother-in-law, her husband and Lalithamma were all there at home. The said Lalithamma also confirmed the incident. Still, thinking that it is a question

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of reputation of the family, they had kept quiet. However, after four days, a complaint was given with the Police by the victim girl. After receiving the complaint, the Police

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took the victim girl to the Hospital. Thereafter, the Police also visited their house and had taken the Towel, Knife and clothes of the victim girl with them which articles the witness has identified at MO-1 to MO-5.

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In her cross-examination from the accused’ side, she stated that Lalithamma is not her relative, but her neighbour. On the date of the incident, her husband had been to the market (‘sante’) and her three children were away from their place. After hearing about the incident from her daughter, they did not go to the house of the accused and enquire him. She also stated that they had kept separately the Towel and the Knife till the Police came and collected them.

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PW-10 (CW-5) - Rajendraswamy, the father of

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the victim girl has stated that, on the date 18-05-2013, in the morning, he had been to market (weekly fair/"¸ÀAvÉ") at

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a place called Anavatti. The victim girl who is his daughter was alone at home. His wife and his mother were also not at home. In the evening after their return, their neighbour one Smt. Lalithamma came to their house. The victim girl stated before them about the accused entering their house in the afternoon of that day and putting a Towel into her mouth and showing a Knife, committing rape upon her.

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When Lalithamma came, she told him that he (accused) had come asking for a drum and had left the place taking his pant with him. The witness stated that even Lalithamma also stated about the incident in the same manner. However, considering that it was a question of reputation of their family, they kept quiet for few days. But later thinking that the similar act may be repeated by the accused, they took the victim girl to the Police Station on the date 22-05-2013 where she gave a complaint to the Police. The witness has stated that, with his consent, after registering the complaint, the Police had taken the victim girl to the Hospital. The Police also had visited their house and had drawn a scene of offence panchanama and at that time, they had taken the Towel, clothes of the victim girl and the Knife. The witness identified those articles at MO-1 to MO-5.

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In his cross-examination, the witness has stated that, after hearing about the incident from his daughter, he did not visit the house of the accused and enquire him about the incident.

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PW-3 (CW-17) - Dr. Govardhan, the then

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Medical Officer of the Government Hospital, Shikaripura, stated in his evidence that, at the request of the Police and

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as produced by them before him on the date 23-05-2013, he examined the accused about the presence of any injuries on his body and also about his capacity to have sexual intercourse. By his examination, he came to an opinion that the accused was capable of having sexual intercourse and that he did not have any injury marks on his body. In that regard, he has issued a Certificate as per Ex.P-3. He also produced the MLC register before the Court and got the relevant pages of the said register marked at Ex.P-3(a). The denial suggestions made to him were not admitted as true by him.

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PW-4 (CW-18) Dr. Geetha M., the lady Medical

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Officer at the Government Hospital, Shikaripura, has stated that, on the date 22-05-2013, she has medically examined the victim girl who was brought by the complainant Police with the history of rape. After her examination, she opined that there were no signs of recent

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sexual intercourse. In that regard, she has issued a Wound Certificate at Ex.P-4 and her opinion at Ex.P-5. She also stated that, at the time of examination of the victim girl, she noticed the absence of hymen in her.

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In her cross-examination, the witness stated that she did not notice any external injuries on the body of the victim girl. She stated that due to excessive physical exercise and sports activity or cycling, the hymen may rupture. She also stated that if a female is subjected for sexual intercourse for the first time, there is possibility of bleeding.

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PW-6 (CW-3) - Sri. Mruthyunjayaswamy has stated that the scene of offence panchanama was drawn in his presence at which time the Material Objects at MO-1 to MO-5 were seized by the Police. The scene of offence panchanama was drawn in the house of the victim girl where the incident of rape was said to have taken place. The witness also stated that, joined by the accused and the Police, he had been to the house of the accused where

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the accused himself produced his three clothes which the Police seized by drawing a seizure panchanama as per Ex.P-7. The witness has identified those clothes as MO-6 to MO-8. The denial suggestions made to him in his crossexamination were not admitted as true by this witness. He further stated that, on the previous date of the victim girl lodging the complaint, they had a talk in the house of the victim girl.

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PW-8 (CW-23) - Smt. Vasantha K.S., the Head Constable of the complainant Police has stated that, on the date 22-05-2023, while she was the Station House Officer, the victim girl appeared before her and lodged a complaint which she registered in their Station Crime No.166/2013 and prepared an FIR as per Ex.P-8. The witness has identified her signature in the complaint at Ex.P-8(a).

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PW-11 (CW-25) – Sri. Balachandra Lakkam, the then Circle Inspector of Police of Soraba Circle has stated that after taking up further investigation in this matter from PW-8, he conducted investigation in this matter,

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during which period, he visited the house of the victim girl and drew a scene of offence panchanama as per Ex.P-2 and from the spot seized MO-1 to MO-5. He also prepared

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a rough sketch of the spot as per Ex.P-11, recorded the statement of several of the witnesses and got the victim girl medically examined by the Doctor and so also the accused. He recorded the voluntary statement of the accused, which this witness has identified at Ex.P-12 and the relevant portion of which was marked as Ex.P-12. Based upon the voluntary statement of the accused, he summoned two panchas to whom all, the accused led to his house at Lakkavalli Village and showing his house, he produced his clothes before them which he (this witness) seized by drawing a seizure panchanama at Ex.P-7 and identified the articles seized there under at MO-6 to MO-8. The witness has further stated that he requested

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the Head Master of the School where the victim girl had studied for issue of a date of birth certificate in which regard the date of birth certificate as per Ex.P-6 was issued to him. He seized the articles belonging to the girl

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produced before him by his staff under panchanama at Ex.P-14 and sent the same to the Regional Forensic Science Laboratory (RFSL), Davanagere, for their chemical examination. Due to his transfer, he handed over the further investigation to CW-26. The denial suggestions made to him in his cross-examination were not admitted as true by this witness.

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PW-9 (CW-26) - Sri. Lingadaal, the then Circle Inspector of Police, Soraba Circle stated that after taking up the further investigation in this case from CW-25 (PW-11) on the date 15-07-2013, he had received the FSL report as per Ex.P-10, collected the house tax demand extract of the house of the victim girl as per Ex.P-9, received the Medical Officer's opinion and completing the investigation, had filed charge sheet against the accused. Thereafter, he collected the medical report about the accused as per Ex.P-3 and submitted it to the Court. The denial suggestions made to him were not admitted as true by this witness.

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From the above evidence, it can be seen that PW-1, PW-2, PW-7 and PW-10 have uniformly stated about the occurrence of the alleged incident, however, the evidence of PW-7 and PW-10 is purely a hear-say evidence based upon what they claimed to have heard from their daughter i.e. PW-1 and their neighbour Smt. Lalithamma (PW-2). Even PW-2 is also not an eye witness to the incident, however, she claims that immediately after the incident, before the accused could leave the house of the victim girl, she went to the house of the victim girl and saw the accused leaving her house and enquired him about the reason for his presence in the said house. Immediately after the accused is said to have left that place, she entered inside the house of the victim girl and by enquiring her, came to know about the entire incident which is about the accused committing rape upon the victim girl by putting her under life threat showing a Knife to her. Even though in the cross-examination of PW-10, it

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was revealed that PW-2 is aunty of PW-10, however, merely by that relationship, it cannot be said that she

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is an interested witness. As such, the argument of the learned counsel for the respondent/accused that the evidence of PW-2 is not believable since she is a relative of

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the victim girl, is not acceptable. There is nothing on record to show that PW-2 had any interest in ensuring the conviction of the accused. However, an entire reading of her (PW-2's) evidence would go to show that, as a normal witness and also as a neighbour, being an aged lady, she had visited the house of the victim girl after she is claimed to have heard the yelling noise from the house of the victim girl.

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No doubt, PW-1 the alleged victim girl in her evidence has not stated about she yelling at the alleged act of the accused. On the other hand, she has stated that the accused had threatened her that she should not

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yell and that if she yells, he would kill her with Knife. However, by that itself, it cannot be inferred that the victim girl had not cried or yelled or screamed at which PW-2 could go over there and knock the door of the house of the victim girl.

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PW-1 the victim girl has categorically stated that

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after taking her inside her house and laying her down on the floor in the kitchen, the accused undressed her and also undressed himself by removing the pant and inner garments worn by both of them and subjected her to rape. She specifically stated that before committing the rape upon her, the accused had threatened her showing the Knife to her and warned her not to raise alarm. Seeing the Knife in his hand, she got scared and then he put a Towel into her mouth and proceeded with the act of subjecting her to rape. PW-1 has also stated that she did not resist the act of the accused. This evidence of PW-1 that she was laid down on the floor by the accused before committing rape upon her and that she did not resist the act of the accused is the reason for the lady Doctor (PW-4) not finding any external injuries on the body of PW-1 the victim girl. Probably it is also for the reason that by the time the lady Doctor examined the victim girl, four days' time had already elapsed. Thus, when the accused was a known person to the family of the victim girl and also

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probably the victim girl might not be disliking the accused,

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she might not have resisted rigorously the act of the accused. As such, though the act of the victim girl may not be considered as not with serious resistance, however, by that itself, it cannot be considered that it was an act with consent. The evidence of PW-1 victim girl about the incident would go to show that it was an unexpected sudden act by a known person, that too, with the threat of a Knife, as such, she could not resist the act of the accused. However, the Sessions Judge's Court, observing the absence of any external injury on the private part of the victim girl raised a suspicion about the occurrence of the alleged incident.

¶190

The Sessions Judge’s Court also suspected that, when PW-2 claims to have heard the yelling noise of the victim girl, but the said victim girl (PW-1) has not stated about she making any such noise. The said reasoning is also not convincing for the reason that, in the circumstance when an adolescent girl is subjected to sexual intercourse by a known person and whose act the

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girl would not resist, unknowingly some screaming or murmuring, may be some time in a higher pitch or tone may come out from the mouth of the parties to the act, more particularly, from the girl. As such, it is not expected that the girl should remember as to whether she had yelled or screamed and specifically mentioned it in her evidence. PW-1 nowhere has stated that she did not yell. Merely because she did not say about she yelling or screaming, which was stated by PW-2, it cannot be concluded that, PW-1 did not yell or scream. Further, the house of PW-2 - Lalithamma being adjoining the house of the victim girl is bifurcated with a wall and moreover PW-2 being an aged lady and the alleged younger grand mother to the victim girl, the said witness (PW-2) hearing any noise from the house of her grand daughter and

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rushing to that house if she hears something unusual is not uncommon. Therefore, there is no reason to disbelieve the evidence of PW-2.

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The evidence of PW-1 that she was alone in the

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house at the time of the incident is further corroborated by

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the evidence of PW-2, PW-7 and PW-10. She has given a detailed account as to how after closing her mouth with his hands, the accused took her inside her house, threatened

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her at the point of Knife saying not to raise any alarm and proceeded with his act of commission of rape upon her. Once again her acquaintance with the accused would come in the way of she probably not exhibiting a serious resistance to the act of the accused resulting in she not sustaining any external injuries on her body. By that itself, the evidence of PW-1 victim girl cannot be disbelieved. However, the Sessions Judge's Court, without appreciating the evidence of PW-1 victim girl and PW-2 Lalithamma on the main part of the alleged act of sexual assault upon PW-1 and threat to her life by accused had taken shelter under some alleged discrepancies and magnified them to disbelieve the case of the prosecution. One such point was the absence of any external injury on the private part of PW-1. However, as observed above, the said reasoning given by the Sessions Judge's Court is not convincing.

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Apart from the above, the Sessions Judge's

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Court observed that the absence of any seminal stains on the clothes of both the accused and the victim girl is also

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a factor which creates doubt in the case of the prosecution.

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No doubt the RFSL report at Ex.P-10 which shows to have examined the dress materials of the victim girl and also of the accused at MO-3 to MO-8 and also public hairs, fingers nails, vaginal swab and cervical swab, public materials of the victim girl, has failed to detect the seminal stains in them. However, as stated by PW-1 herself, before giving those clothes to the Police, she had already washed them and had also taken bath. Admittedly, there was a time gap of not less than four days from the date of the alleged act to the date of lodging the complainant. PW-1 has categorically stated that in the meantime, she had not only taken bath but also had washed those clothes. The clothes of the accused were also shown to have been produced by the accused from a barbed wire

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fencing in his house. Thus, those clothes also must have

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been dried after washing. Further, according to the victim girl (PW-1), at the time of the commission of the act of sexual intercourse, there were no pants and undergarments on the person of both the victim girl and the accused. In such an event, it is quite but natural of not detecting any seminal stains on those clothes. However, the Sessions Judge's Court did not consider the said aspect in its proper perspective while analysing the evidence placed before it.

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The Sessions Judge's Court also created a doubt with respect to the ownership of the Towel at MO-2. It observed that, PW-1 in her evidence has specifically stated that the said Towel does not belong to them, whereas PW-10 has stated that the said Towel belongs to them. The said discrepancy is too minor to affect the case of the prosecution in any manner.

¶212

Our Hon'ble Apex Court in the case of VIJAY ALIAS CHINEE V. STATE OF MADHYA PRADESH reported in (2010) 8 Supreme Court Cases 191, after referring to several of its previous judgments, reiterated the principle of appreciating the evidence, where the evidence is said to be with some contradictions, improvements or

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discrepancies etc. Paragraph 23 of the said judgment reads as under:

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"23. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth from untruth, exaggeration and improvements, the Court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses."

¶217

Our Hon'ble Apex Court in the case of PHOOL SINGH VS. STATE OF MADHYA PRADESH reported in (2022) 2 Supreme Court Cases 74, has summarised the principles as to when the sole testimony of the victim/prosecutrix be taken as a basis for conviction even in the absence of corroboration. The Hon'ble Apex Court relying upon its

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previous judgment in the case of STATE OF PUNJAB VS. GURMIT SINGH AND OTHERS (1996) 2 Supreme Court Cases 384 and analysing the facts before it, has observed

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that the prosecutrix in the case before it had fully supported the case of the prosecution and she had been consistent right from the very beginning, nothing had been specifically pointed out as to why the sole testimony of the prosecutrix should not be believed. The Court further observed that in the case before it, even after thorough cross-examination, she had withstood by what she had stated and had fully supported the case of the prosecution. With this the Hon'ble Apex Court observed that they see no reason to doubt the credibility and/or the trustworthiness of the prosecutrix.

¶222

In Gurmit Singh's case (supra), the Hon'ble Apex

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Court was pleased to observe in paragraph 8 of its judgment as below:

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" ….. ….The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her

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statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix

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is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."

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In Moti Lal vs. State of Madhya Pradesh reported in (2008) 11 Supreme Court Cases 20 , which was a case involving offences punishable under Sections 375, 376 and 450 of the IPC, the question of conviction on the sole testimony of prosecutrix for the alleged offences was involved. The medical evidence was not helpful to the prosecution. The Hon'ble Apex Court in paragraph 12 of its judgment reiterated its observation made in its previous

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judgment in the case of Om Prakash vs. State of Uttar

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Pradesh reported in (2006) 9 Supreme Court Cases 787, wherein it was observed that it is a settled law that the victim of sexual assault is not treated as accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of the Doctor. In a given case, even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of prosecutrix. In a normal course, a victim of sexual assault does not like to disclose such offence even before her family members, much less before the public or before the Police. The Indian women have a tendency to conceal such offence because it involves her prestige as well as the prestige of her family.

¶236

The Sessions Judges Court also disbelieved the seizure of MO-1 and MO-2 observing that, it is highly unbelievable that the Knife and the Towel said to be belonging to the accused were in the house of the complainant for about five days. However, in the said process, the Sessions Judges Court failed to notice that

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PW-1 has stated that when PW-2 - Lalithamma came to their house, the accused in a hurried manner left the place by holding his pant with him and in the said process, he had left the Knife and the Towel in the spot itself. The Knife and Towel were kept in their house till the Police came and seized them under a mahazar.

¶240

PW-2 - Lalithamma has stated that after hearing the yelling noise of PW-1 when she went to the house of PW-1 victim girl and entered the house, she saw a Knife and a Towel fallen on the ground in the kitchen of the house of the victim girl. Thus, immediately after the incident, PW-2 has seen the Knife and the Towel in the place of the incident.

¶241

PW-7 and PW-10 the parents of the victim girl have stated that the Police after visiting their house took the said Knife and the Towel with them. In the circumstances, when an untoward incident has happened and the family of the victim girl has not yet decided whether or not to lodge a complaint, it cannot be expected that invariably they should throw away the articles pertaining to the

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incident, that too, the articles like a Knife and the Towel. Therefore, there is all the reason to believe the evidence of PW-1 victim girl that they had kept these two articles in their house till the Police came and collected them.

¶245

PW-7 the mother of the victim girl has categorically stated in her cross-examination that they had kept the Knife and the Towel separately after the incident, as such, they were in their house only till the Police came and collected them.

¶246

Therefore the evidence of PW-1 and P-7 shows the reason for MO-1 (Knife) and MO-2 (Towel) being got in the house of the victim girl till the Police came and collected them under a panchanama at Ex.P-2. This aspect the Sessions Judge's Court did not notice and appreciate in its proper perspective.

¶247

The Sessions Judge's Court raised one more doubt on the alleged act of the parents of the victim girl in not enquiring the accused about the alleged incident.

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No doubt, generally, when such an incident happens,

¶251

the parents of the victim girl would enquire with the accused who is alleged to have committed such an act with his parents. However, it is not that in every circumstance of the case, such an enquiry must necessarily be made. In the instant case, PW-1, PW-2, PW-7 and PW-10 have all stated that fearing that the reputation of their family would be spoiled, the parents of the victim girl decided not to give a complaint initially. Thus, they did not want to make the incident a big issue. As such, nothing unusual can be detected in the evidence of PW-7 and PW-10 in not enquiring the accused about the incident. As such, the said doubt expressed by the Sessions Judge's Court is not acceptable.

¶252

Learned counsel for the respondent (accused) also contended that there is a delay of four days in lodging the complaint. No doubt there is such a delay in lodging the complaint, however, PW-1, PW-2, PW-7 and PW-10 have explained the reason for the said delay. They have stated in clear terms that the parents of the victim girl

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feared that the reputation of their family would be spoiled, as such, they did not proceed to lodge a complaint immediately after hearing about the said incident from their daughter and also PW-2. However, PW-10 has further stated that, after four days, he thought that in case if the complaint is not filed, then the accused may proceed to repeat the similar act. Thus they decided to lodge the Police complaint. The said explanation for the delay caused in filing the FIR cannot be suspected or doubted.

¶256

The Hon'ble Apex Court, after referring to several of its previous judgments reiterated that, in rape cases, the family of a victim girl is not expected to run immediately after the incident to the Police Station to lodge an FIR. It is quite but natural for the family members to discuss and decide as to whether the complaint is required to be lodged or not, taking into consideration the reputation of the family.

¶257

(a) In the case of Satyapal Vs. State of Haryana reported in AIR 2009 SUPREME COURT 2190 , the Hon'ble

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Apex Court while dealing with the aspect of delay in lodging the FIR by the family of a rape victim, has observed at paragraph 20 as below:

¶261

"20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon…..."

¶262

(b) In the case of Vidyadharan Vs. State of Kerala reported in 2004 CRL. L. J. 605 (SUPREME COURT), our Hon'ble Apex Court while dealing with the delay in lodging the FIR with respect to an offence of outraging the modesty of a woman has observed at paragraph 9 as below:

¶263

"9. We shall first deal with the plea about false implication. It is seen that though there were some delay in lodging the FIR, it is but natural in a traditional bound society to avoid embarrassment which is inevitable when reputation of a woman is concerned. Delay in every case cannot be a ground to arouse suspicion. It can only be so when the delay is unexplained..."

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Thus, in the instant case also, PW-1, PW-7 and PW-10 have explained the reason for the delay which cannot be held as uncommon or unnatural. On the other hand, the delay having been convincingly explained by the said witness, the same is not fatal to the case of the prosecution. As such, the argument of the learned counsel for the respondent/accused on the said point is not acceptable.

¶267

Learned counsel for the respondent/accused also

¶268

submitted that, the Investigating Officer has not got the statement of the victim girl recorded before a Magistrate, which is fatal to the case of the prosecution.

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In the instant case, no doubt, the Investigating Officer has not taken steps to get the statement of the victim girl recorded by a Magistrate, however, the said act of not getting the statement of the victim girl recorded by a Magistrate, by that itself, the case of the prosecution cannot be disbelieved or suspected since the prosecution has placed relevant and enough material evidence to

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prove its case by examining PW-1, PW-2, PW-7 and PW-10.

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It was also contended from the respondent's

¶274

side in their argument that, PW-1 in her evidence has stated that when PW-2 - Lalithamma came to the door of the house of PW-1, the accused took up his pant and left the house, whereas PW-2 - Lalithamma in her evidence has stated that the accused had worn the pant while going.

¶275

PW-1 victim girl has stated that the accused committed the sexual assault upon her after making her to lay down in the kitchen of her house, from 12:45 p.m. upto 1:30 p.m. Upon knocking of the door by PW-2 - Lalithamma, the accused moved towards the door and ran away from the said door. However, she has not stated that she was watching the accused till he crossed PW-2 Lalithamma after responding to her query. As such, she (PW-1) might not have noticed whether the accused was

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wearing the pant before crossing the door of her house.

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PW-2 - Lalithamma also has stated that after she

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knocked the door of the house of PW-1 victim girl, it was not opened for some time. Thus in the said process, the accused might have worn the pant. Still, even if the evidence of PW-1 and PW-2 is taken at their face value with respect to the accused wearing the pant, the same would not be a major variation affecting the case of the prosecution. While going out from the door of the house of PW-1, whether the accused was wearing the pant or not would not be a material aspect to assess the veracity or otherwise of the evidence given by PW-1 and PW-2. As such, the said argument on the said point by the learned counsel for respondent/accused is not acceptable.

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Lastly, the defence of the accused was that, there was a dispute between the accused and the family of the victim girl with respect to money transaction. However, a suggestion made to that effect was denied by PW-1, PW-2, PW-7 and PW-10. Further it was also

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suggested to PW-1 in her cross-examination that there was a dispute with respect to land between the accused and their family and some monetary transaction between the accused and her uncle Sri. Bangaraswamy, in which connection a false case has been filed against the accused. However, PW-1 denied the said suggestion so also PW-10 to whom the said suggestion was repeated.

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It was also attempted to show from the accused' side that, on the date 19-05-2013, there was a cradle ceremony in the house of the elder sister of the accused for which the victim girl and her mother had attended. PW-1 and PW-7 denied the suggestion made to them in that regard, whereas PW-2 admitted the said suggestion as true. It is not known how come PW-2 who is not a family member of PW-1 and PW-7 would come to know about the same, particularly, when PW-2 herself has stated that she did not attend the said function. In spite of the same, even if it is assumed that PW-1 and PW-7 had attended the said function, nothing unusual can be noticed in that for the reason that even according to accused, the said function was in the house of

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the elder sister of the accused. Further the family of the victim girl, at that point of time, wanted not to disclose to anyone about the alleged incident fearing the spoiling of the reputation of their family. Thus, the defence taken up by the accused on all these counts, would not, in any manner, succeed in creating any doubt in the case of the prosecution. On the other hand, the cogent evidence led by the prosecution proves beyond reasonable doubt that, the accused has committed the alleged offence of putting PW-1 under threat at the point of Knife and subjected her to sexual assault while the victim girl was minor in her age.

¶289

Thus the impugned judgment of acquittal passed by the Sessions Judge's Court which has not properly appreciated the evidence placed before it in its proper perspective leading it to pronounce the judgment of acquittal deserves to be set aside, as such, the same warrants interference at the hands of this Court.

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Accordingly, we proceed to pass the following:

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O R D E R

¶294

[i] The present Criminal Appeal

¶295

No.503/2017 stands allowed ;

¶296

[ii] The judgment in Sessions Case

¶297

No.214/2013 dated 28-10-2016 passed by the I

¶298

Additional Sessions Judge at Shivamogga, acquitting the accused of the offences

¶299

punishable under Section 506 of the Indian Penal Code, 1860 and under Sections 4, 9(h) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012, stands set aside ;

¶300

[iii] The Accused Shankar, S/o. Holiyappa, Aged about 29 years, Agriculturist, R/o. Lakkavalli Village, Soraba Taluk, Shivamogga 577429, is convicted for the offences punishable under Section 506 of the Indian Penal Code, 1860 and under Sections 4,

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9(h) read with Section 10 of the Protection of

¶304

Children from Sexual Offences Act, 2012;

¶305

To hear on sentence, call on 11.09.2023, as prayed.

Sd/JUDGE

Sd/JUDGE

BMV*

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Dr.HBPSJ & ABKJ: 11.09.2023

¶312

HEARING ON SENTENCE

¶313

Heard the submission of learned counsel for the accused/respondent and the learned Additional State Public Prosecutor on the quantum of sentence.

¶314

Learned counsel for the respondent/accused submitted that the accused is the only male member in his family upon whom the entire family is depending including his aged mother. He further submits that accused is a poor agriculturist eking out his livelihood by agriculture, as such, most lenient view be taken in the matter.

¶315

Per contra , learned Additional State Public Prosecutor in his argument submits that victim girl was aged only 15 years and accused by putting her into life threat has committed the heinous offence. Subsequent to amendment of the POCSO Act, punishment for the proven guilt under Section 4 of the POCSO Act, is 20 years imprisonment, however, since the offence committed is prior to the amendment of the act in the year 2019, maximum punishment can be ordered under Section 4

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of the POCSO Act, against the accused.

¶319

It is the sentencing policy that the sentence

¶320

ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.

¶321

Hence, keeping the above principle of the sentencing policy and considering the facts and circumstances of the case on hand, we proceed to pass the following:

¶322

ORDER ON SENTENCE

¶323

[a] The accused - Shankar, S/o.

¶324

Holiyappa, Aged about 29 years, Agriculturist, R/o. Lakkavalli Village, Soraba Taluk, Shivamogga 577429, is sentenced to undergo

¶325

simple imprisonment for a period of two years for the offence punishable under Section 506 of the Indian Penal Code, 1860;

¶326

[b] The accused - Shankar, S/o.

¶327

Holiyappa, Aged about 29 years, Agriculturist,

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R/o. Lakkavalli Village, Soraba Taluk,

¶331

Shivamogga 577429, is further sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of `20,000/(Rupees Twenty Thousand Only), in default of payment of fine, to further undergo simple imprisonment for a period of six months for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012.

¶332

[c] The accused - Shankar, S/o. Holiyappa,

¶333

Aged about 29 years, Agriculturist, R/o. Lakkavalli Village, Soraba Taluk, Shivamogga 577429, is further sentenced to undergo simple imprisonment for a period of five years and to pay a fine of `10,000/- (Rupees Ten Thousand Only), in default of payment of fine, to further undergo simple imprisonment for a period of three months for the offence punishable under Section 9(h)

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read with Section 10 of the Protection of Children

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from Sexual Offences Act, 2012.

¶338

[d] All the sentences shall run concurrently.

¶339

[e] The accused is entitled for the benefit

¶340

of set-off for the period, if any, undergone by him in judicial custody in the matter, under Section 428 of the Code of Criminal Procedure, 1973.

¶341

[f] Out of the fine amount deposited, if any, by the accused, a sum of 25,000/- be paid to PW-1, the victim girl and the remaining sum of 5,000/- be paid to the State.

¶342

[g] The accused shall surrender before the learned Sessions Judge's Court within forty five (45) days from today and serve the sentences as ordered above by this Court.

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[h] A free copy of this judgment be furnished to the accused immediately by the Registry.

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Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately, for doing needful in

the matter.

Sd/JUDGE

Sd/JUDGE

BVK

The State by Anavatti v. Shankar

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The State by Anavatti v. Shankar

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