Dismissed

State of Karnataka v. Ningaraju

Karnataka HC5 Jul 2024CRL.A/1321/2018

Case brief

AI extract

What is this about?

State appeal against acquittal under Sections 366, 376 IPC and POCSO Act. The court held the victim's minority was not proved per Rule 12(3) JJ Rules standards, and sexual relations were consensual, so no patent illegality in acquittal.

What the court decided

AI extract

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

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NC: 2024:KHC:25505-DB CRL.A No.1321/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JULY, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.1321/2018 (A)

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BETWEEN:

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STATE OF KARNATAKA BY TALAKADU POLICE STATION MYSURU

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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REP. BY STATE PUBLIC PROSECUTOR O/O HIGH COURT BUILDING BENGALURU-560001.

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…APPELLANT

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(BY SRI. RAJATH SUBRAMANYA, HCGP)

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AND:

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NINGARAJU

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S/O LATE GURUSWAMY AGED ABOUT 25 YEARS R/O KALIYURU VILLAGE

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T. NARASIPURA TALUK

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MYSURU DISTRICT-571 124.

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SUNIL DEVAPPA LEMANI S/O DEVAPPA LAMANI AGED ABOUT 34 YEARS VATAVARAVI VILLAGE R/O YALBURGA TALUK KOPPALA DISTRICT.

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…RESPONDENTS

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(BY SRI. C.N. RAJU, ADV., FOR R1 SRI. SHARATH J.M. ADV., FOR R2)

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THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER 09.04.2018 IN S.C.NO.206/2015 ON THE FILE OF THE

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NC: 2024:KHC:25505-DB CRL.A No.1321/2018

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VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 366, 376 2(i)(n) OF IPC AND SEC.5(l) R/W 6 OF POCSO ACT.

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

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JUDGMENT

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"Whether the impugned judgment and order of acquittal in S.C.No.206/2015 passed by the VI Additional District and Special Judge, Mysuru suffers patent illegality or perversity?" is the question involved in this case.

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Respondent was tried in S.C.No.206/2015 before the trial Court for the charges for the offences punishable under Sections 366, 376(2)(i) & (n) of IPC and Section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act' for short) on the basis of the charge sheet filed by Talakadu police in Crime No.26/2015 of their police station.

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Respondent was accused in S.C.No.206/2015. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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PWs-2 and 3 are the elder brother and sister of victim/PW-1 respectively. PW-3 and her family along with PW-1 had migrated from Vataparavi Village of Koppal District to Kaliyur Village in T.Narasipura Taluk, Mysuru District as labourers for harvesting sugarcane. They were living in the shed situated in vacant site belonging to the mother of PW-5. They were provided accommodation by their employer along with the other workers.

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The case of the prosecution in brief is as follows:

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(i) The date of birth of PW-1 is 31.05.1999. On 07.02.2015, the accused luring her of love and marriage, kidnapped her from the custody of PW-2 and her lawful guardians. He took her to the house of PW-13 situated in Gundegal Village of Kollegala Taluk. He lodged her in the house of PW-13 for three days. During such stay he committed aggravated sexual assault on her for three days. Then he brought her back to his house in Kaliyur Village and was living with her.

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(ii) Regarding the incident PW-2 filed complaint against accused No.1 before Talakadu police, based on which Ex.P15

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FIR was registered. The victim was subjected to medical examination initially by PW-4 at T.Narasipura. Thereafter, she was subjected to medical examination by PW-9 at Cheluvamba Hospital, Mysuru. PW1/the victim's statement under Section 164 of Cr.P.C., as per Ex.P20 was recorded by the Judicial Magistrate. On completing investigation the respondent was charge sheeted.

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The trial Court on hearing the parties framed the charges against the accused/respondent for the offences punishable under Section 366, 376(2)(i) & (n) of IPC and Sections 5(l) and 6 of the POCSO Act.

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As the respondent denied charges, the trial was conducted. In support of the case of the prosecution PWs-1 to PW14 were examined and Exs.P1 to P20 were marked. After his examination under Section 313 of Cr.P.C., the accused did not lead any defence evidence.

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The trial Court on hearing the parties by the impugned judgment and order acquitted the accused holding that the victim being the child was not proved. The trial further

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held that the forced sexual intercourse was also not proved. Challenging the said order the State has preferred the above appeal.

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The evidence on record including the evidence of the victim PW-1 shows that she fell in love with the accused and her family members had fixed her marriage with another boy at her native place. She herself further states that she was interested in the accused and she forced him to take her away to avoid her marriage with some other person which was fixed by her elders. Therefore, they went to the house of PW-13 and stayed there. Her evidence further shows that her sexual co-habitation with the accused in the house of PW-13 was at her instance. Under the circumstances, unless the prosecution proves that the victim was the child within the meaning of Section 2(1)(d) of POCSO Act, the alleged sexual co-habitation between the accused and PW-1 does not amount to the offence of rape or aggravated sexual assault as the same was consensual one. Therefore, prosecution was required to prove crucial fact namely the age of the victim. Unless the fact of victim being minor is not proved, the charge under Section 366 also does not sustain.

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NC: 2024:KHC:25505-DB CRL.A No.1321/2018

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Hon’ble Supreme Court in the judgment in

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Mahadeo v. State of Maharashtra and Another 1 has held

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that the yardstick applicable for the assessment of the age of juvenile in conflict with law under Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as JJ Rules) is applicable to the juvenile victim also. In this case the incident took place in February of 2015. Therefore, the parties were governed by the JJ Rules, 2007. Hon’ble Supreme Court in para 12 of the above said judgment referring to said Rule 12(3) held as follows:

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"12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:

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“ 12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking evidence by obtaining—

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1 (2013) 14 SCC 637

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( a )( i ) the matriculation or equivalent certificates , if available; and in the absence whereof;

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( ii ) the date of birth certificate from the school (other than a play school) first attended ; and in the absence whereof;

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( iii ) the birth certificate given by a corporation or a municipal authority or a Panchayat ;”

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Under Rule 12(3)( b ), it is specifically provided that only

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in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for . In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well ."

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(Emphasis supplied)

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The reading of the above judgment goes to show that, to prove the age of the juvenile victim, the prosecution has to first produce matriculation or equivalent Certificate if available. Only in the absence of that date of birth certificate from the school first attended has to be produced. In the absence of the above two, the birth certificate given by the Corporation or Municipal authority or Panchayath has to be produced. Only in the absence of the first three, ossification test has to be resorted.

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In the present case, PW-1 has stated that she was a school dropout after 9th standard. Therefore, matriculation certificate would not have been available. Therefore, date of birth certificate which has to be relied is the one produced by the first attended school. To prove her date of birth the prosecution relied on Ex.P2 the school certificate allegedly issued by PW-10. PW-10 states that on the requisition of the I.O. he has issued Ex.P2 the school certificate and as per the said record PW-1 was born on 31.05.1999. He does not say when PW-1 was admitted into their school and for which class. Ex.P2 only states that the admission number of the victim is 2006-07/07 and she belongs to lambani caste, her date of birth is 31.05.1999 and she passed 7th standard. Ex.P2 does not state on what basis the date of birth 31.05.1999 was entered.

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PW-10 in his cross-examination states that they have entered the said date of birth based on information given in the application for admission submitted by her parents. He also admits that at the time of admission her parents did not produce the birth certificate. But her parents were not examined to say that they had made an application containing such date of birth. It was not even elicited to PW-1 that the

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school mentioned in Ex.P2 was her first attended school. According to the prosecution itself they were all migrant labourers. The original admission register was not produced. Her date of birth certificate was also not produced and she was not subjected to ossification test.

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The other factor which creates doubt about PW-1 being minor is that her parents had fixed her marriage with another person. It is not the case of the complainant or any other witnesses that they attempted to perform marriage of PW-1 though she was minor. Therefore, the trial Court was justified in holding that PW-1 being aged below 18 years was not proved beyond reasonable doubt.

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Once if it is held that the fact of PW-1 being minor was not proved, then the sexual act, if any, by the accused with PW-1 must be proved to be forced one. But PW-1 in Ex.P20 her statement before the Magistrate, as well as in her evidence before the Court categorically stated that she was in love with the accused, as her parents fixed her marriage with some other person against her wish, she herself forced the accused to take her away and accordingly they eloped and

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co-habited together in the house of PW-13. PW-3 the sister of PW-1 admits in her cross-examination that they were attempting to perform the marriage of PW-1 with the son of her maternal uncle. Therefore, it was clear that the sexual co-habitation, if any, was not forced one or against the will of PW-1.

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It is settled position of law that in the appeal against judgment of acquittal the scope of interference is limited. The Hon'ble Supreme Court in Prem Singh v. State of Haryana² has held that in an appeal against acquittal, the accused has the benefit of double presumption. The first one being the presumption of innocence at the trial stage, secondly that gets reaffirmed and strengthened by the judgment of acquittal. It was further held that merely because two views are possible, the appellate Court cannot reverse the judgment of acquittal and in such case the view which is favourable to the accused has to be considered. It was held that unless the judgment of acquittal suffers patent illegality or perversity, the same cannot be reversed.

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