Partly allowed

Sri Ramesha v. State of Karnataka

Karnataka HC12 Nov 2024CRL.A/1164/2018

Case brief

AI extract

What is this about?

High Court of Karnataka allowed criminal appeal partly against life imprisonment sentence under IPC 376(2)(i)(n) and POCSO Section 6, reducing it to 10 years rigorous imprisonment while upholding convictions for other charges including kidnapping and abetting.

What did the court decide?

Life imprisonment reduced to 10 years rigorous imprisonment; fine reduced to Rs.25,000; other convictions upheld.

Sri Ramesha Vs State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2024)

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NC: 2024:KHC:45743-DB CRL.A No. 1164 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL APPEAL NO. 1164 OF 2018 (C)

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BETWEEN:

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SRI RAMESHA AGED ABOUT 32 YEARS S/O JAYANNA R/A NO.82, 4^TH CR BLOCK DODDABOMMASANDRA VIDYARANYAPURA BENGALURU-560 004.

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…APPELLANT

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(BY SRI K B MONESH KUMAR - ADVOCATE)

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AND:

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Digitally signed by SUMATHY KANNAN Location: High Court of Karnataka

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STATE OF KARNATAKA BY VIDYARANYAPURA POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-560001.

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…RESPONDENT

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(BY SRI VIJAYKUMAR MAJAGE – SPP-II)

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THIS CRL.A. FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.04.2018 PASSED BY THE LXX-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU IN S.C.NO.702/2015 FOR THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 366A R/W 363, 344, 506, 376(2)(i)(n) OF INDIAN PENAL CODE AND SECTION 6 OF POCSO ACT, CONSEQUENTLY, THE APPELLENT

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MAY BE ACQUIT FROM THE CHARGE AND HE MAY BE SET AT LIBERTY.

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THIS CRL.A., COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR AND HON'BLE MR JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE RAJESH RAI K)

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This appeal by the convicted accused, is directed against the judgment of conviction and order of sentence dated 06.04.2018 in S.C.No.702/2015 passed by Court the LXXI Addl. City Civil & Sessions Judge and Special Judge, Bengaluru City, whereby the learned Sessions Judge has convicted the accused for the offences punishable under Section 6 of the POCSO Act and Sections 366-A r/w Sections 363, 344, 506 and 376(2)(i)(n) of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.60,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of 2 years for the offence punishable under Section 376(2)(i)(n) of the IPC and sentenced him to undergo simple

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imprisonment for a period of 3 years and to pay fine of Rs.3,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of 3 months for the offence punishable under Section 366-A r/w Section 363 IPC so also to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- for the offence punishable under Section 344 of IPC. Further, he is directed to undergo simple imprisonment for a period of 2 years for the offence punishable under Section 506 of IPC.

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The factual matrix of the prosecution of the case in brief is as follows:

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The victim in the instant case i.e., PW-5 belongs to Adi Karnataka Caste, who was studying in IX Standard at the time of the incident. On 19.02.2015, at about 8:30 a.m., the victim left for School along with her brother. However, they did not return home. Despite searching for them, the family members failed to find them. Further, on 19.03.2015 i.e., after a lapse of one month, they both returned home. Upon enquiry, the victim reported to her

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mother-PW-6 that on 19.02.2015 at about 4:45 p.m., while she was returning from School along with her brother, as they approached a vegetable store near Doddabommasandra, the accused forcefully stopped them and insisted on talking with her. Further, he threatened her saying if they failed to accompany him, he would kill them along with her family members. Saying so, accused abducted them and following which they were taken to the Majestic Bus-stand and boarded a bus to Dharmasthala and then to Nandagudi village, Hosakote. Here the accused confined them in the house of one

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Narayanaswamy / PW-12 and they were constantly under life threat. It is further stated in case of prosecution that, the accused illegally retained them in the said house and raped the victim. After a span of 20 days she managed to escape from the confinement and returned home on 19.03.2015. Subsequently, her mother, i.e. PW-6 lodged a complaint against the accused as per Exhibit P-7 before the respondent-Police and the same was registered against the accused in Cr.No.126/2015 dated 20.03.2015

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for offences punishable under Sections 344, 363, 376, 506 of IPC, Sections 6, 5(L) of the POCSO Act, 2012 and also for the offence punishable under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

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Subsequently, the respondent / police conducted an investigation following which the victim was made to appear before the Jurisdictional Magistrate and her statement was recorded under Section 164 Cr.P.C. on 28.03.2015. Meanwhile the accused was arrested on 21.03.2015. Further, the Investigating Officer drew the relevant mahazars and got the victim examined before the Doctor / PW-4. After obtaining necessary documents from the concerned authorities, CW-22 laid the charge-sheet against the accused before the Special Court for the aforementioned offences.

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Further, on securing the presence of the

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accused, the learned Special Judge framed the charges against the accused for the offences punishable under

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Section 6 of the POCSO Act and Sections 366-A read with Sections 363, 344, 506, 376(2)(i)(n) of IPC inclusive of offence punishable under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and the same was read verbatim to the accused. However, the accused denied the charges and claimed to be tried.

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In order to bring home the guilt of the accused

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for the charges leveled against him, the prosecution examined in total 15 witnesses as PW-1 to PW-15 so also got marked 19 documents as Exhibits P1 to P19. The prosecution also identified 8 material objects as MO-1 to MO-8. Following the completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of the material witnesses to the accused as stipulated under the provisions of Section 313 of Cr.P.C. However, the accused denied the same. The accused neither examined any witnesses on his behalf nor

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marked any documents. The defence of the accused is

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one of total denial and that of false implication.

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After assessment of oral as well as

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documentary evidence placed before it, the learned Sessions Judge convicted the accused for offences punishable under Section 6 of the POCSO Act and Section 366-A read with Sections 363, 344, 506, 376(2)(i)(n) of IPC and sentenced him as enumerated supra. However, the special Court has acquitted the accused for offence punishable under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The said judgment is challenged in this appeal.

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We have heard the submissions of the learned

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counsel Sri K.B. Monesh Kumar for the appellant and Sri Vijayakumar Majage SPP-II for the respondent / State. Further, perused the Trial Court Records.

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It is the primary contention of the learned

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counsel for the appellant that the judgment under this appeal suffers from perversity and illegality, in as much as

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the learned Sessions Judge has failed to appreciate the evidence of the victim and other material witnesses in the right perspective; the learned Sessions Judge has convicted the accused based on surmises and conjectures and as such, the same is liable to be set aside. He further contended that the evidence of PW-5 / victim does not instill any confidence in the case of the prosecution. There is an inordinate delay in lodging the complaint. According to PW-5, the incident occurred on 19.02.2015 and the complaint lodged by PW-6 is on 19.03.2015, i.e. after a lapse of one month. Even after securing the victim on 19.03.2015 there was a delay in recording her 164 statement before the Magistrate and the same was recorded on 28.03.2015. The counsel further contended that, on perusal of Section 164 of statement of the victim as per Exhibit P-5, she has categorically stated that on her free will and consent, she accompanied the accused from Doddabommasandra to the Majestic bus-stand and from there to Dharmasthala and then to Nandagudi village, Hosakote. Here they stayed together for a period of one

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month. The victim did not divulge the same to any person including the owner of the house. Hence, her testimony cannot be relied as gospel of truth to convict the accused. The learned counsel contended that the evidence of PW-6 and PW-7, i.e. the parents of the victim cannot be relied upon, for the reason that, they have failed to lodge any complaint for a period of one month following the return of their daughter / PW-5. Further, the Doctor who examined the victim categorically opined that the victim was sexually active. Additionally prosecution has failed to prove the age of the victim that she was a minor at the time of the incident. The prosecution relied on the age proof of the victim without any authenticated corroborative documents like the Birth Certificate or Marks Card. Accordingly, the learned counsel for the appellant prays to allow the appeal.

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9. Per contra , the learned SPP Sri Vijayakumar

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Majage submitted that the judgment under this appeal does not suffer from any perversity or illegality, as the

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learned Sessions Judge, after meticulously examining the oral and documentary evidence, has recorded the findings which are sound and reasonable having regard to the evidence on record. According to the learned SPP-II, the prosecution has successfully proved the age of the victim that she was a minor at the time of incident by producing Exhibit P2-school certificate. Also the evidence of PW-3 i.e., the head master of the school is the author of exhibit P-2. Further PW-4 / Doctor, stated confirming that the victim was aged about 14 to 16 years at the time of the incident.

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The learned SPP-II further contended that, in the evidence of PW-5, the victim girl deposed that on the date of incident the accused forcibly took her, initially to Majestic, from there to Dharmasthala and then to Nandagudi village, Hosakote, where he forcibly confined her in the house of PW-12 for a period of one month where the accused had sexual intercourse with her. The evidence of PW-5/victim girl corroborates with the

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evidence of PWs-6 and 7 who are the parents of the victim. Further, the Medical Report issued by PW-4/Doctor as per Exhibit P-3 confirms that, the victim is sexually active. Hence, the learned SPP-II contends that the Sessions Court has rightly held that the prosecution has successfully proved the offences punishable under Section 6 of the POCSO Act and Section 366-A read with Sections 363, 344, 506, 376(2)(i)(n) of IPC and has rightly convicted the accused. Hence, the judgment under this appeal does not call for any interference by this court.

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Having heard the learned counsel for the

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appellant and the learned SPP-II for the State, the only point that would arise for our consideration is:

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“Whether the impugned judgment of conviction and order of sentence suffers from any perversity or illegality warranting interference by this Court?”

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We have bestowed our anxious consideration to the submissions made by the learned counsel appearing on both sides so also the evidence available on record. On

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a careful perusal of the same, in order to prove the charges leveled against the accused, the prosecution has mainly relied on the evidence of PW-5, the victim so also her parents PW-6 and PW-7. On cursory glance of the evidence of PW-5, she has categorically deposed that on 19.02.2015 at about 4.45 p.m. when she reached Doddabommasandra from the school bus, the accused who was near a vegetable store grabbed her and her brother and threatened to accompany him. Accordingly, he forcibly took them by an auto rickshaw to Majestic and from there boarded a bus to Dharmasthala. Thereafter, the accused took them to Nandagudi at Hosakote confining her and her brother in the house owned by one Narayanaswamy / PW-12 for a period of 20 days. She also deposed that during that time, the Accused had sexual intercourse with her against her will. It is further stated in her evidence that later she and her brother managed to escape from the said house and joined their parents. Accordingly, her mother lodged the complaint before the police and the police have taken her to the

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Doctor for a medical examination. This evidence of PW-5 is supported by PW-6 and PW-7, her parents. PW-6, the mother of the victim girl, reiterated the contents of her complaint as per Exhibit P7. PW-7 also deposed similarly about the act committed by the accused. The evidence of the victim and PW-6 and PW-7 if corroborated with the evidence of the Doctor who conducted medical examination of the victim along with the medical report as per Exhibit P3, in our considered view, the prosecution has proved the alleged sexual assault committed by the accused on PW-5/victim. Though it is argued by the learned counsel for the appellant that the victim in her statement recorded under Section 164 of CrPC by the Magistrate, has admitted that she voluntarily accompanied the accused on 19.02.2015 and thereby went to Dharmasthala and subsequently to Nandagudi village, Hosakote and got married. However, the said argument advanced by the learned counsel for the appellant is not sustainable for the reason that, the prosecution has successfully proved that the victim was a minor as on the

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date of the incident by placing Exhibit P2, age certificate issued by PW-3, the Headmaster of the school in which she studied. As per Exhibit P2 age of the victim as on date of the incident was 13 years 7 months and 10 days. Though the said document was not supported by any authenticated documents like the Birth Certificate or the SSLC marks card, in the same time, the veracity of Exhibit P2 is not seriously disputed by the learned defence counsel before the Trial Court. Nevertheless, the Doctor / PW-4 who examined the victim categorically stated that the age of the victim was 14 to 16 years. In such circumstances without any such reliable evidence by the accused, we are constrained to hold that the prosecution proved that the victim was a minor at the time of the alleged incident.

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Apart from the above evidence, the prosecution also relied on the evidence of PW-9 & PW-13 / the Police Inspectors, who have investigated the matter. Both these witnesses categorically deposed about the investigation carried out by them by drawing relevant mahazars,

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recording of the statement of victim under Section 164 of Cr.P.C. so also obtaining the medical report. Hence, on an overall examination of the entire evidence on record, we are of the considered view that the prosecution has proved the charges leveled against the accused for the offence punishable under Section 6 of the POCSO Act and also Sections 366-A read with Sections 363, 344, 506, 376(2)(i)(n) of IPC. Hence, the learned Sessions Judge has rightly convicted the accused for the charges leveled against him.

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The learned counsel for the appellant alternatively contended that, the Sessions Court imposed maximum sentence for the offence punishable under Section 376(2)(i)(n) of IPC and Section 6 of the (unamended) POCSO Act, 2012 and the same may be modified by imposing the minimum sentence of 10 years instead of life imprisonment, by considering the peculiar facts and circumstances of the case so also by considering the age of the accused i.e., 32 years at the time of

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incident and also his incarceration period in the custody i.e. 09 Years, 07 months 10 days. On perusal of Section 376(2)(i)(n) of IPC, the minimum punishment prescribed is imprisonment shall not be less than 10 years, however, may extent to life imprisonment. Even under Section 6 of POCSO Act (unamended) the minimum sentence imposed is 10 years rigorous imprisonment and maximum up to imprisonment for life. In the case on hand, in view of the fact that the offences were committed in the year 2015, therefore the (unamended) provision of Section 06 of POCSO Act is attracted in this case. Admittedly, the accused has already undergone imprisonment for a period of 9 years 7 months and 23 days. The Hon’ble Apex Court in the case of STATE OF U.P. vs. SONU KUSHWAHA (Crl.A.1633/2023) , while confirming the conviction for the offences punishable under Sections 377 and 506 of IPC inclusive of offences under Section 5 r/w Section 6 of the POCSO Act, reduced the sentence of the appellant to undergo rigorous imprisonment for a period of 10 years by modifying the

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sentence from 20 years. Further, it is rightly stated by learned counsel for the appellant that he was aged above 32 years at the time of incident. Hence, by considering the peculiar facts and circumstances of the case, we are of the view that, the sentence imposed by the learned Sessions Judge for the offence under Section 376(2)(i)(n) of IPC and Section 6 of the (unamended) POCSO Act, 2012 requires to be modified by confirming the judgment of conviction. Accordingly, we answer the point raised above partly in the affirmative and proceed to pass the following:

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ORDER

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i) The appeal is allowed in part .

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ii) The sentence imposed by the learned Sessions Judge in SC No. 702/2015 dated 06.04.2018, against the accused/appellant for the offences punishable under Sections 6 of the POCSO Act and Section 376(2)(i)(n) of IPC is modified.

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iii) The accused/appellant is sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.25,000/,

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in default of payment of fine, he shall undergo simple imprisonment for a period of two months for the offences punishable under Sections 6 of the POCSO Act and Section 376(2)(i)(n) of IPC.

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