Dismissed

The State of Karnataka v. Madesha @ Mahesha

Karnataka HC12 Jul 2024CRL.A/1482/2018

Case brief

AI extract

What is this about?

State appeal against acquittal of accused charged with kidnapping, rape under IPC, aggravated penetrative assault under POCSO and child marriage. Victim's age was not proved since school records were not from her first school and ossification test carried a margin of error; her own evidence showed a voluntary relationship, so the acquittal stood.

What the court decided

AI extract

The State of Karnataka Vs Madesha @ Mahesha — Child Sexual Offences (POCSO) | Karnataka HC (2024)

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NC: 2024:KHC:26986-DB CRL.A No.1482/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^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.1482/2018 (A)

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BETWEEN:

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

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THE STATE OF KARNATAKA BY THE METAGALLI POLICE STATION MYSURU CITY REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001.

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(BY SMT. SOWMYA R, HCGP)

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AND:

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…APPELLANT

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MADESHA @ MAHESHA S/O LATE KRISHNA AGED ABOUT 23 YEARS R/O. HUNDAVADI VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT-571 438.

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NATIVE PLACE #170 BASTHIPURA VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT.

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MAHESHA S/O RANGASHETTY AGED ABOUT 55 YEARS UPPAR LABOURER NO.51, NEAR LAKSHMI DEVI TEMPLE, KALASTAVADI VILLAGE MYSURU DISTRICT.

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…RESPONDENTS

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NC: 2024:KHC:26986-DB CRL.A No.1482/2018

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(BY SRI. KITTU S, ADV., A/W

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SRI. HITESH GOWDA B.J. ADV., FOR R1 SRI. JAVEED, ADV., APPOINTED AS AMICUS CURIAE FOR R2)

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THIS CRL.A. IS FILED U/S.378(1) &(3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 26.04.2018, PASSED IN S.C.NO.33/2015, ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSORE ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 366 AND 376(2)(i) AND (n) OF IPC, UNDER SECTION 5(I) R/W 6 OF POCSO ACT AND ALSO UNDER SECTION 9 OF PROHIBITION OF CHILD MARRIAGE ACT.

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THIS APPEAL, COMING ON FOR FURTHER 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.33/2015 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 No.1 was tried in S.C.No.33/2015 before the trial Court for the charges for the offences punishable under Section 366, 376(2)(i) & (n) of IPC and under Sections 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act' for short) and Section 9 of the Prohibition of Child Marriage Act, 2006 (for short 'the Act') on the basis of the charge sheet filed by Metagalli police in Crime No.200/2014 of their police station.

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PW-2 is the father of PW-1. For the purpose of

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convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The case of the prosecution in brief is as follows:

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That PW-1 was born on 26.04.2000. The accused luring minor PW-1 of love and marriage, on 20.09.2014 at 4:30 p.m. kidnapped her from Naganahalli cross from the custody of her lawful guardians and took her to Melukote. On 21.09.2014 at 9:00 a.m. he married her in front of Chaluvanarayanaswamy temple, Melukote by tying a mangalya to her neck and took her to Pandavapura. He stayed with her in room No.205 of Meenakshi Boarding and Lodging in Pandavapura and committed penetrative sexual assault on her on that day at 11:30 p.m. On 22.09.2014, he brought her back to Kalasthavadi Village, the parental house of PW-1. As her parents did not accept the marriage, the accused again took PW-1 to K.R.S. One week thereafter, on the insistence of PW-1, he took her to Hosahundi Village, took a room on rent from PW-9, stayed there with PW-1 and there also he committed repetitive penetrative sexual assault on her. On 11.10.2014, PW-2 on tracing the where-abouts of PW-1 took her back, but

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again on 12.10.2014 she eloped from the house, joined the accused and lived with him. Thereafter, PW-2 filed Ex.P1 the missing complaint; again he filed Ex.P2 on the same day against the accused making allegations of kidnapping, aggravated sexual assault and child marriage etc., Based on Ex.P1, FIR Ex.P14 was registered in Crime No.198/2014 at Metagalli police station as missing complaint. Based on Ex.P2, FIR Ex.P15 was registered against the accused for the aforesaid offences. On completing investigation, the accused was charge sheeted.

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The trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 366, 376(2)(i) & (n) of IPC and Sections 5(l) and 6 of the POCSO Act and Section 9 of the Act.

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As the accused denied charges, the trial was conducted. In support of the case of the prosecution PWs-1 to PW12 were examined, Exs.P1 to P17 and MOs.1 and 2 were marked.

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The trial Court on hearing the parties by the impugned judgment and order acquitted the accused holding

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that PW-1/victim being the child was not proved and the charges of aggravated sexual assault and child marriage was also not proved beyond reasonable doubt. Challenging the said order, the State has preferred the above appeal.

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Smt.Sowmya R., learned HCGP for the appellant and Sri.Javed, learned Amicus Curiae assisting the Court for defacto complainant/respondent No.2 reiterating the grounds of the appeal submit that the age of the victim child was proved by the school certificate and ossification test report and charges of kidnapping and sexual assault were proved by the evidence of PWs-1 and 2 and the trial Court was in error in acquitting the accused. Therefore, the said judgment and order is liable to be set aside.

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Per contra, Sri.Kittu S., learned counsel for respondent No.1/accused justifying the impugned judgment and order submits that fact of victim being minor was not proved by acceptable evidence and evidence on record clearly shows that it was a case of romantic relationship between PW-1 and the accused and that was given colour of the offence under

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POCSO Act etc., Therefore, he submits that the appeal is liable to be dismissed.

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ANALYSIS

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To uphold the charges under the POCSO Act and the Prohibition of Child Marriage Act, the prosecution was required to prove that PW-1 the victim was aged below 18 years or a child as defined under Section 2(d) of the POCSO Act. If at all the age was not proved, the prosecution was required to prove that the accused kidnapped PW-1 forcefully to marry or have sexual intercourse with her and that he had forced sexual intercourse with her. The trial Court has held that those aspects were not proved beyond reasonable doubt.

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This being the appeal against the order of acquittal, the scope of interference is limited. The Hon'ble Supreme Court in Prem Singh v. State of Haryana¹ has held that incase of the appeal against acquittal, the accused has the benefit of double presumption. The first one being the presumption of innocence available at the trial stage. Secondly, that is reinforced, reaffirmed and strengthened by the judgment of

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1 (2013) 14 SCC 88

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acquittal. It was further held that merely because two views are possible, the appellate Court cannot reverse the judgment 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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This Court has to examine this matter in the light of the aforesaid judgment. As already stated, the charges under the POCSO Act and the Prohibition of Child Marriage Act sustain only if the age of the victim/PW-1 was proved. Hon’ble Supreme Court in Mahadeo v. State of Maharashtra and

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Another² has held 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 September of 2014. Therefore, the parties were governed by the JJ Rules, 2007. The Hon’ble Supreme Court in the above said judgment referring to said Rule 12(3) held as follows:

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2 (2013) 14 SCC 637

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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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( 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 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

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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 as juvenile in conflict with law, 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 to prove the age of the victim, the prosecution relied on the evidence of PW-8 the Assistant teacher of Government Higher Primary School, KR mills Colony, Mysuru and Exs.P11 and 12 the date of birth certificate and admission register extract. According to the accused the victim was aged above 18 years. Ex.P11 itself states that PW-1 was studying in 8th standard in their school and as per the said record her date of birth was 26.04.2000. PW-8 deposes that on the requisition of the I.O., based on the entries in the

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admission register she issued certificate Ex.P11. Ex.P12 is the admission register extract. As per the entry at Sl.No.73 of Ex.P12, PW-1 first studied in Kalasthavadi village's Higher Primary School and she was admitted in the Government Higher Primary School, KR mills Colony, Mysuru for the 8th standard. She had submitted the transfer certificate bearing No.20/12-13 dated 25.05.2012. That itself shows that the Government Higher Primary School of KR mills colony, Mysuru was not the first attended school of PW-1. Therefore, in view of the judgment in Mahadeo's case, Exs.P11 and 12 cannot be used as proof of age of the victim.

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The other evidence relied on by the prosecution was the ossification test report Ex.P10 and the evidence of PW-7 the doctor who conducted the said ossification test. First of all as per the judgment in Mahadeo's case, when the record regarding the date of birth from the first attended school was available, the ossification test should not have been conducted and that cannot be taken into consideration. Even otherwise, as per evidence of PW-7 and Ex.P10, the age of PW-1 victim was between 16 to 18 years.

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The Hon'ble Supreme Court in Vinod Katara v. State of Uttar Pradesh³ while dealing with the similar case has held that the ossification test report is not a conclusive proof of the age of a person. It was held that there is a margin of error of plus or minus two years in the age determined in the ossification test. If that is taken into consideration, there is every possibility of the victim being aged above 18 years. Under such circumstance, it is incumbent for the prosecution to prove the best available evidence i.e., date of birth certificate from the first attended school. Suppression of such best available evidence leads to adverse inference against the prosecution. Therefore, the trial Court was justified in holding that the victim being aged below 18 years was not proved by the legally acceptable evidence.

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Once the prosecution fails to prove the age of the victim, the charges for the offences under Section 5(l) and 6 of the POCSO act and under Section 9 of the Act fails. Similarly, the charges for the offences under Section 376(i) which deals

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3 AIR 2022 SC 4771

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with commission of rape on a woman aged below 16 years also does not survive.

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Then what remains is the charges for the offences under Section 366, 376(2)(n) of IPC. For that, the prosecution had the burden to prove that the accused took the victim/PW-1 from her house or village and had sexual intercourse with her against her will. To prove the said fact, the prosecution relied on the evidence of PW-1 the victim and PW-2 the father of the victim.

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PW-1 in her chief examination itself states that she

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was talking to the accused and her parents had fixed her marriage with one Ramesh of Doddegowdana Koppalu and she informed the same to the accused. The accused approached her parents and informed them about they loving each other and their intention to marry and they did not agree to the same. She further states that then the accused had proposed her that they should go away and marry, then they will be accepted, accordingly they went to Melukote and married. From there she was taken to Pandavapura etc., She also states that the accused arranged a house and they stayed together in the

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same house and they had sexual co-habitation with each other. In the complaint Ex.P2 itself PW-2 has stated that, thereafter the victim/PW-1 and the accused were taken back to his house, but again PW-1 and the accused eloped. PW-1 in the chief examination also states the same thing. In the cross-examination, she admits that she was in a romantic relationship with the accused, she was unwilling to marry the person chosen by her parents and for that, her parents had bet her. She further admits that her parents did not accept the marriage because of their different castes. Her evidence shows that her marriage with the accused was acceptable for her mother and only PW-2 was opposing the same. Her evidence clearly shows that from 21.09.2014 till 11.10.2014 she moved with the accused in public places and in public conveyance and she lived with him. She co-habited with him in Meenakshi Boarding and Lodging in Pandavapura and in the house of PW-9 voluntarily. Evidence on record clearly shows that even after she was brought back by PW-2 on 11.10.2014, again she eloped on 12.10.2014 with the accused. Therefore, there was no reason to hold that PW-1 was forcibly kidnapped or subjected to forced sexual intercourse. The trial Court on

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judicious appreciation of the evidence has acquitted the accused. The said judgment and order does not suffer patent illegality or perversity. Hence, the following:

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ORDER

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The appeal is dismissed.

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This Court places on record its appreciation for the able assistance rendered by Sri.Javed, learned Amicus Curiae.

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Registry is hereby requested to release him honorarium of Rs.15,000/-.

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Sd/JUDGE

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Sd/JUDGE