Allowed

Manjunatha v. the State of Karnataka

Karnataka HC22 Oct 2024CRL.A/2184/2018

Case brief

AI extract

What is this about?

Conviction for offences under Sections 366-A and 376(2)(i) IPC and Section 4 of POCSO was set aside because the victim's age was not proved per Section 94 JJ Act — school certificate Ex.P.10 did not qualify, no ossification test done. Doubts on identification, uninvestigated Santosh, victim's admission of ignorance of sexual intercourse, and unproved FSL-based medical opinion led to acquittal on b

What the court decided

AI extract

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

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1 - NC: 2024:KHC:42269 CRL.A No. 2184 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 2184 OF 2018

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BETWEEN:

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MANJUNATHA S/O HULUGABHOVI AGED ABOUT 26 YEARS R/AT HOSURU COLONY HIRIYUR TALUK CHITRADURGA – 577 598.

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…APPELLANT

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(BY SRI VEERANNA G TIGADI, ADVOCATE)

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AND:

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Digitally signed by HEMAVATHY GANGABYRAPPA

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Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY RAMANAGARA TOWN P.S REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001.

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SMT. LAKSHMI W/O SRINIVAS AGED ABOUT 46 YEARS R/AT KAYISOPPINA BEEDI RAMANAGARA TOWN RAMANAGARA – 562 159.

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…RESPONDENTS

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(BY SRI K NAGESHWARAPPA, HCGP FOR R1 R2 SERVED, UNREPRESENTED)

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THIS CRL.A IS FILED UNDER SECTION 374(2) Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER ON SENTENCE DATED 01.08.2018, PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA IN SPL.C.No.45/2017, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 366A, 376(2)(i) OF IPC AND SECTION 4 OF POCSO ACT AND ETC.,

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed against the judgment of conviction and order on sentence dated 01.08.2018 passed in Spl.C. No. 45/2017 by I Additional District and Sessions Judge/Special Judge, Ramanagara, convicting the appellant - accused for offence under Section 366-A, 376(2)(i) of IPC and Section 4 of the POCSO Act and sentencing to undergo rigorous imprisonment for 10 years for offence punishable under Section 376(2)(i) of IPC and rigorous imprisonment for 3 years for offence under Section 366-A of IPC.

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Factual matrix of the prosecution case is that

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seven months prior to the incident the appellant - accused

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and victim girl – P.W.1 were known to each other. On 17.01.2017 the appellant - accused asked the victim girl to come to the KSRTC bus stand and the victim girl came at 04.00 pm and asked the appellant - accused why he called her, for that the appellant - accused asked her to come to his village. When she refused, he threatened that he would die if she does not come. Therefore, the victim girl boarded the KSRTC bus along with the appellant – accused, he took her to Hosur Colony near Dindawara Village to his house and stayed there till 26.01.2017. On 25.01.2017, at night hours, the appellant - accused committed aggravated penetrative sexual assault upon the victim girl even though she refused. Charge sheet came to be filed against the appellant – accused for offence under Section 366-A, 367(2)(i) of IPC and Section 4 of POCSO Act. The Special Court has framed charge for the said offence. The prosecution has examined 10 witnesses as P.W.1 to P.W.10 and got marked Ex.P.1 to Ex.P.12 and M.O.1 to M.O. 9. Statement of appellant - accused came to be recorded under Section 313 of Cr.P.C. After hearing

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arguments on both sides the trial Court formulated points for consideration and convicted the appellant - accused for the aforesaid offences. Said judgment of conviction and order on sentence has been challenged in this appeal.

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Heard learned counsel for the appellant -

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accused and learned HCGP for respondent – State.

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Learned counsel for appellant - accused would contend that the age of the victim girl has not been proved as required under Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the `JJ Act’). On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of P. Yuvaprakash

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Vs. State by Inspector of Police reported in 2023 INSC 626 . He contends that the author of the school certificate – Ex.P.10 has not been examined and it has been marked in the evidence of the Investigating Officer – P.W.10 who is not having any personal knowledge regarding the date of birth of the victim girl. He

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contends that the victim girl and her mother who have been examined as P.W.1 and P.W.2 have not stated the date of birth of the victim girl. Therefore, the prosecution has failed to prove that the victim girl is a child as defined under Section 2(d) of the POCSO Act. He contends that there is no allegation against the appellant - accused in the complaint filed by P.W.2 – mother of the victim girl and name of one Santosh is stated in the complaint – Ex.P.2 and who is that Santosh has not been investigated. Even the cell number of the said Santosh has been mentioned in the complaint. The victim girl has been secured on 26.01.2017 and her statement has been recorded under Section 164 of Cr.P.C. on 30.01.2017 and there is a delay in recording the statement. The delay in recording the statement itself indicates that the victim girl has been tutored in the meantime. P.W.1 – victim girl has stated in her cross-examination that she has no knowledge of sexual intercourse or forcible sexual intercourse. Therefore, the evidence of victim girl that appellant - accused committed forcible sexual intercourse cannot be

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relied to attract offence alleged against the appellant - accused. The Doctor who examined the victim girl, i.e., P.W.9 has not given her final opinion. The final opinion has been kept pending till receipt of FSL report. Even after receipt of FSL report the Investigating Officer has not sought final opinion of the Doctor. Said FSL report has not been marked. The Doctor gave her provisional opinion only on the basis that hymen of the victim girl was not in-tact. He further contended that the evidence on record is not sufficient to convict the appellant - accused for the offence charged against him. Without considering all these aspects learned Special Judge has erred in convicting the appellant - accused. With this he prayed to allow the appeal and acquit the appellant - accused.

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Learned HCGP has argued that the school certificate – Ex.P.10 indicate the date of birth of the victim girl and based on that the Special Court has rightly held that the victim girl is a child as defined under Section 2(d) of the POCSO Act. P.W.1 has specifically stated the acts of

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this appellant - accused taking her to his house and threatening her and committing forcible sexual intercourse on her. Evidence of P.W.1 has been corroborated by evidence of P.W.2 and P.W.3. Sole evidence of P.W.1 is sufficient to convict the appellant - accused for the offence alleged against him. There is a presumption under Sections 29 and 30 of the POCSO Act. He has supported the reasoning assigned by the trial Court. On these grounds he sought for dismissal of the appeal.

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On the grounds made out and considering the arguments advanced the following point arises for my consideration:

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Whether the trial Court erred in convicting the appellant - accused for offence under Sections 366-A, 376(2)(i) of IPC and Section 4 of the POCSO Act?

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My answer to the above question is in the affirmative for the following reasons:

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In order to attract offence under the POCSO Act the prosecution has to establish that the victim girl is a child as defined under Section 2(1)(d) of the POCSO Act. As per Section 2(1)(d) of the POCSO Act child means any person below the age of eighteen years. In order to ascertain whether the prosecution has proved whether the victim girl is a child or not, it is necessary to consider the following provisions of law.

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Section 34 of the POCSO Act reads as follows:

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34. Procedure in case of commission of offence by child and determination of age by Special Court .-(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).

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(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

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(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent

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proof that the age of a person as determined by it under sub- section (2) was not the correct age of that person.”

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In view of Section 34(1) of the POCSO Act,

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Section 94 of JJ Act becomes relevant and applicable. Therefore the same is extracted and it reads as under:

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“94. Presumption and determination of

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age . -(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the

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concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

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It is evident from a conjoint reading of the above provisions that to resolve whatever dispute with respect to the age of a person that arises in the context of her or him being a victim under the POCSO Act, the Courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in the order of which the JJ Act requires consideration is that the concerned

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Court has to determine the age by considering the following documents:

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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Section 94 of the JJ Act clearly indicates that

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the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board has to be firstly preferred in the absence of which date of birth certificate issued by a Corporation or Municipal Authority or a Panchayat can be considered and it is only thereafter, in the absence of these documents, age is to be determined through

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‘ossification test’ or `by any other latest medical age determination test conducted on the orders of the concerned authority, i.e., Committee or the Board or Court’.

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In the present case school certificate – Ex.P.10

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has been produced to prove the age of the victim girl. The author of Ex.P.10 has not been examined and it has been marked in the evidence of P.W.10 – Investigating Officer. P.W.10 – Investigating Officer has no personal knowledge

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regarding the date of birth of the victim girl. A perusal of the contents of Ex.P.10 – school certificate indicates that the victim girl has been admitted in the said school for the year 2014-15 and she is studying in 10^th Standard during March, 2017. Said aspect itself establishes that she might have been admitted to the said school for 8^th standard. Said certificate has not been issued by the school first attended by the victim girl. P.W.1 – victim girl has not stated her date of birth in her evidence. P.W.2 – mother of the victim girl has also not stated the date of birth of the

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victim girl. The document produced at Ex.P.10 do not answer the description of any of the class of documents mentioned in Section 94(2)(i) of the JJ Act. Therefore, the trial Court could not have placed reliance on Ex.P.10 to hold that the victim girl was below the age of 18 years at the time of commission of offence. The Hon’ble Apex Court

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in the case of P. Yuvaprakash Vs. State by Inspector of Police reported in 2023 INSC 626 , after considering the provisions of Section 34 of the POCSO Act, Section 94 of the JJ Act, and decisions of the Hon’ble Apex Court in the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh reported in 2021 (12) SCR 502 , Sanjeev Kumar Gupta Vs. The State of Uttar Pradesh and others , reported in 2019 (9) SCR 735 and Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal reported in 2012 (9) SCR 224 has observed thus:

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“19. It is clear from the above narrative that none of the documents produced during the trial answered the description of “the date of birth certificate from the school” or “the

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matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchyat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim’s age was below 18 years as per Section 94(2)(iii) of JJ Act. … … … “

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Even the victim girl in her statement recorded under Section 164 of Cr.P.C. (Ex.P.1) has not stated her date of birth. The document produced i.e., Ex.P.10 – study certificate is not what Section 94(2)(i) of the JJ Act mandates and it is not in accordance with Section 94(2)(i) of the JJ Act. In these circumstances, only basing on the evidence accorded under Section 94 of the JJ Act was the medical ossification test. Said ossification test has not been conducted. Therefore, under these circumstances there is no material on record to establish the date of birth of the victim girl as per Section 94(2) of the JJ Act and the prosecution has failed to establish that the victim girl was a child as defined under Section 2(1)(d) of the POCSO Act.

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P.W.2 – mother of victim girl has filed complaint

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as per Ex.P.2. In Ex.P.2 mother of victim girl suspected that victim girl might have gone with one Santosh having mobile number 9845593109 as she had contacted him over phone. Who is that Santosh has not been investigated. As per the evidence of P.W.1 – victim girl she came in contact with this appellant - accused when she received a missed call from him. The victim girl had not seen the appellant - accused prior to the date of incident. On receiving the phone call from the appellant - accused she went to the bus stand to meet him. How the victim girl had identified the appellant - accused in the bus stand is not forthcoming. The victim girl went with the appellant - accused to his village and stayed for 8 days. What efforts were made by the victim girl to come out of the house of appellant - accused has not been stated by her in her evidence. As per the evidence of P.W.1 – victim girl, on 25.01.2017 the appellant - accused in his house committed forcible sexual intercourse on her. P.W.1 – victim girl in her cross-examination has stated as under:

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‘¯ÉÊAVPÀ ¸ÀA¨sÉÆÃUÀ ªÀÄvÀÄÛ CvÁåZÁgÀ JAzÀgÉ K£ÉAzÀÄ £À£ÀUÉ UÉÆwÛ®è ªÀÄvÀÄÛ ªÀiÁ»w E®è J£ÀÄßªÀÅzÀÄ ¸Àj’.

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Said admission given by P.W.1 – victim girl in

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her cross-examination indicate that she is not aware of what is sexual intercourse and what is forcible sexual intercourse. Therefore, the evidence of P.W.1 – victim girl that appellant - accused had committed forcible sexual intercourse on her cannot be taken into consideration to attract offence under Section 376 of IPC or under Section 4 of the POCSO Act.

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P.W.9 is the Doctor who examined the victim

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girl and gave report as per Ex.P.7. In Ex.P.7 it is stated that the victim girl is knowing the appellant - accused for last 7 months. P.W.9 – the Doctor has deposed that there are no signs of force and final opinion is reserved pending FSL report and sexual violence cannot be ruled out. After receipt of FSL report the Investigating Officer has not sought final opinion of the Doctor – P.W.9. P.W.10 – the Investigating Officer has stated in his evidence that he

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received the RFSL report on 20.07.2017 and submitted the same to the Court on 21.07.2017. Evidence of P.W.9 – Doctor has been recorded on 04.07.2018 after receipt of the RFSL report. Said RFSL report, even though said to have been produced before the Court by the Investigating Officer on 21.07.2017, has not been marked. Considering

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all these aspects a doubt arises with regard to the appellant - accused kidnapping the victim girl from the KSRTC bus stand and taking her to his house and committing forcible sexual intercourse on her. Therefore, benefit of doubt requires to be extended to the appellant - accused. In view of the above, the prosecution has failed to prove the guilt of the appellant - accused beyond all reasonable doubt.

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In the result, the following;

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O R D E R

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i. The appeal is allowed.

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ii. The judgment of conviction and order on sentence dated 01.08.2018 passed in Spl.C. No. 45/2017 by the I Additional District and Sessions Judge, Ramanagara is set aside.

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