Allowed

State by Police Inspector v. Manjappa

Karnataka HC22 Feb 2024CRL.A/821/2018

Case brief

AI extract

What is this about?

State appeal against acquittal for rape of a minor girl under Section 376 IPC and Section 6 POCSO Act. The High Court held the school register birth certificate proved the victim was a minor, found the acquittal perverse, convicted the accused and sentenced him to ten years' rigorous imprisonment with fine and compensation.

What did the court decide?

Acquittal set aside; accused convicted under Section 376 IPC and Section 6 POCSO Act and sentenced to 10 years RI plus Rs.25,000 fine, with compensation to victim and DLSC victim-compensation consider

State by Police Inspector Vs Manjappa — Child Sexual Offences (POCSO) | Karnataka HC (2024)

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1 Crl.A.No.821/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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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 UMESH M ADIGA

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CRIMINAL APPEAL No. 821 OF 2018 (A)

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BETWEEN:

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State by Police Inspector Honnali Police Represented by State Public Prosecutor High Court Building Bangaluru-1

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...Appellant

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(By Shri. Rajat Subramanyam, HCGP)

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AND:

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Manjappa S/o Rudrappa R/o Kyasinakere village Honnali taluk, Davanagere

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Smt. Sarojamma W/o Manjappa Aged about 48 years Kyasinakere village Honnali taluk Davanagere district. …Respondents

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(By Sri. V.S. Vinayaka, Advocate/Amicus Curiae for R1 Notice to R2 served, unrepresented)

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This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the judgment and order dated 13.10.2017 in S.C.No.95/2016 passed by the II Additional District and Sessions Judge and Special Judge, Davanagere thereby acquitting the respondent for the offences punishable under Sections 376 of IPC and Section 6 of POCSO Act.

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This Criminal Appeal coming on for Further Argument having been heard through Physical Hearing/Video Conference and reserved for Judgment on 20.12.2023, coming on for pronouncement this day, UMESH M ADIGA J., delivered the following :

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JUDGMENT

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This is State’s appeal challenging the judgment dated 13.10.2017 passed by the II Additional District and Sessions Judge and Special Judge, Davanagere (for short, hereinafter referred to as the ‘Trial Judge’) in S.C.No.95 of 2016 registered for the offence punishable under Section 376 of the Indian Penal Code (for short, hereinafter referred to as the ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences (for short, hereinafter referred to as the ‘POCSO’) Act, acquitting the accused for the alleged offences.

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Brief facts of the case of the prosecution are

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that the victim girl aged about 15 years, was doing coolie work in Kyasinakere Village, Honnali Taluk along with her parents and others. She studied upto first standard and thereafter, left her education and was doing household work. The accused is known person of the victim. He was also working as a coolie in the very same place. The accused is also belonging to the same caste that of victim. Regularly, they were meeting in the place of work and they became familiar. The accused fell in love with the victim/ PW-2 and often he was telling her that he had been loving her and he would marry her. It is the further case of the prosecution that during lunch break, both victim and accused used to go nearby Canal wherein movement of people was less, sit and were chit-chatting.

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About eight months prior to the filing of the complaint, on one day when both went near Canal accused forced her to have sexual intercourse. Inspite of refusal of PW-2, the accused forcefully had sexual intercourse with her, against her wish and thereafter, frequently he was

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forcefully taking the victim girl near the Canal and was having sexual intercourse with her, against her wish. As a result of which, she became pregnant; the victim informed the said fact to the accused and thereafter, the accused stopped contacting her and meeting her. Therefore, she informed her parents that accused had forceful sex with her and due to the same she conceived.

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It is further case of the prosecution that parents of victim girl informed to the elders of the village about illegal acts of the accused. They assured them that they would hold Panchayath and persuade the accused to marry victim girl. Accordingly, Panchayath was held and in the Panchayath, accused denied that he was responsible for pregnancy of the victim and refused to marry her. Thereafter, elders of the village informed the victim and her parents to take appropriate action against the accused by lodging complaint to the police station. Accordingly, victim girl lodged a complaint to the Station House Officer of Honnali Police Station as per Ex.P1 dated 03.04.2016. The Sub-Inspector of the Honnali Police Station on the basis of

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Ex.P1, registered a case in Crime No.119 of 2016 for the offence punishable under Section 376 of IPC read with Section 6 of POCSO Act.

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The further investigation was taken up by PW16, J.Ramesh, CPI of Honnali Circle and on conclusion of the investigation submitted the charge-sheet against the accused for the offence punishable under Section 376 of IPC and Section 4 of POCSO Act, before Special Court.

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The Special Court took cognizance of the case and secured presence of the accused. It appears, accused was released on bail. Copy of the charge-sheet and enclosures were supplied to the accused. The learned Sessions Judge, on hearing both side and also considering the materials available on record, framed the charges for the offence punishable under Section 376 of IPC and Section 6 of the POCSO Act. The accused pleaded not guilty and came to be tried.

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The prosecution to prove its case examined PWs-1 to 16 and got marked Exs.P1 to P14 and closed its evidence. Thereafter, the learned Sessions Judge examined

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the accused under Section 313 of Cr.P.C. and his answered were recorded. Accused did not lead any defence evidence. The learned Sessions Judge heard the arguments on both sides and on appreciating the evidence on record, answered both the charges levelled against the accused in the ‘negative’ and acquitted the accused of the alleged offences, vide impugned judgment dated 13.10.2017.

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We have heard the arguments of the learned HCGP and the learned Amicus Curiae appearing for Respondent No.1/accused.

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The learned HCGP would submit that PW-2 is victim girl and PW-1 is her mother. PW-2 in her evidence has stated in detail about the acts committed by the accused. It is corroborated by PW-1. To prove that victim was minor at the time of the incident, prosecution has produced Ex.P7 and examined PW-8, who is custodian of the said records. In his cross-examination, nothing was brought out to discard their evidence. The prosecution examined the doctors, who have stated that PW-2 was pregnant and examined the said victim. The victim appears

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to have delivered a baby boy and the said child unfortunately died within a span of two days after its birth. The said fact is not disputed. However, the accused contends that he was not responsible for pregnancy of the victim girl.

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The learned HCGP has further submitted that, PWs-15 and 16 are the investigation officers, who have narrated the investigation made by them. The said evidence is sufficient to believe the case of the prosecution. The learned Sessions Judge acquitted the accused mainly on the ground that the victim was major at the alleged time of the incident and it was consensual sex. The said findings are erroneous. The learned Sessions Judge has not considered Section 94 of the Juvenile Justice Act, 2015 (for short, hereinafter referred to as the ‘J.J. Act of 2015’). When the documentary evidence are placed on record, the Special Court ought to have accepted the same. To prove the case of the prosecution, substantial evidence has been placed on record, which was not considered by the Special Court.

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The learned HCGP would further submit that the learned Sessions Judge ignored the presumption under Section 114-B of the Indian Evidence Act. The victim girl was minor at the time of the incident. Therefore, question of giving consent does not arise. In view of these reasons, there is miscarriage of justice. The finding of the Special Court is perverse and arbitrary. Therefore, prayed for reversal of the judgment.

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The learned Amicus Curiae appointed by the Court on behalf of the accused/respondent no.1 has vehemently contended that there are no sufficient materials to belie that victim was minor at the time of the incident. The prosecution ought to have produced the certificate of birth issued by the concerned authority and there is no explanation for non-production of the same.

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PW-8 during her cross-examination admits that he had not brought register while giving the evidence before the Court. Therefore, material evidence is suppressed and hence, the learned Sessions Judge rightly held that the prosecution has utterly failed to prove Ex.P7. On the basis

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of the medical evidence, the Special Court rightly held that

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the victim was major at the time of the incident.

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The learned advocate for Respondent No.1

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would further submit that PW-2 did not give proper evidence before the Magistrate when her statement was recorded under Section 154 of Cr.P.C. During the evidence of PW-2, she was tutored and accordingly, she gave evidence before the Court. PWs-1 and 2 are interested witnesses. It has come in their evidence that they were forcing accused to marry PW-2 and when the accused refused to marry PW-2, they lodged the complaint. In view

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of these reasons, evidence of PWs-1 and 2 is not believable. There is no other evidence to prove the circumstances against the accused. The other witnesses in this case are not material witnesses. Therefore, the prosecution has failed to prove the guilt of the accused. Hence, the learned Sessions Judge rightly acquitted the accused by the impugned judgment. There are no grounds to interfere in the said finding. Hence, prayed to dismiss the appeal.

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The following points emerges for our

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determination:

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i) Whether the prosecution proves beyond reasonable doubt that eight months prior to 03.04.2016 at Kyasinakere Village of Honnali Taluk, accused developed intimacy with the victim girl and he had repeated sexual intercourse with her against her wish, knowing fully well that she was minor, due to which, she conceived and thereby, the accused had committed an offence under Section 376 of IPC?

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ii) Whether the prosecution proves beyond reasonable doubt that eight months prior to 03.04.2016 at Kyasinakere Village of Honnali Taluk, accused developed intimacy with the victim girl and he had aggravated repeated sexual intercourse with her, against her wish, knowing fully well that she was minor due to which, she became pregnant and thereby, the accused had committed aggravated penetrative sexual assault on the victim girl in violation of Section 5 of the POCSO Act and thereby, committed an offence punishable under Section 6 of the POCSO Act?

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iii) Whether the findings of the learned Sessions Judge is arbitrary, illegal and perverse and interference by this Court is required?

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iv) What order?

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Point Nos.1 to 3: As these points are inter-

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connected, they are taken up together for discussion.

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PW-1/Sarojamma is the mother of the victim. In her

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evidence, she has stated that PW-2 is her daughter. She along with PW-2 used to go to Coolie work in Kyasinakere Village. Accused was also working in the same place as a Coolie. About eight months prior to recording of her evidence, she came to know that her daughter/victim was pregnant. On enquiry, PW-2 has revealed that accused developed intimacy with her and assured her of marrying her and with that false assurance, had sex with her, against her wish because of which, she conceived. She told accused about her pregnancy and requested to marry her but accused refused to marry her and even avoided to contact her. Thereafter, PW-2 told her about the incident. PW-1 has further stated that she requested elders to persuade the accused. The elders of the village held Panchayath and in the Panchayath, accused refused to marry the victim and told that he was not responsible for pregnancy of the

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victim. Hence, elders of the village advised her to file complaint to the police. Accordingly, through her daughter, she gave complaint to the police.

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PW-1 has further stated that after filing of the complaint, victim girl was taken to Government Hospital, Honnali along with her. She has also stated that at the time of her evidence, age of the victim was 17 years. In her cross-examination, her evidence was denied but nothing was brought out to discard or disbelieve the evidence of PW-1. PW-1 denied the suggestion of accused that due to refusal by the accused to marry PW-2/victim, PW-1 was alleging against the accused that he has committed rape on PW-2.

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PW-1 is not an eye-witness to the incident. Her evidence is important to consider the age of the victim as minor at the time of the incident; the victim became pregnant on enquiry accused refused to marry her. Hence Panchayat was held at her request and there-in also accused refused to marry victim. In the cross-examination,

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she elaborated her examination-in-chief and nothing is brought out to disbelieve her evidence.

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PW-2 is star witness of this case. She is the

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victim of this incident. In her evidence, she has stated that she studied first standard and even she has not completed the course. She discontinued her education and was going along with her mother to do coolie work. Accused was also coolie and was working in the same place where she was working, at the time of the incident. At that time, accused was un-married. Accused developed intimacy with her and persuaded her, with false assurance of marrying her. Both of them were going near canal, during lunch break and chit chatting. It was an abandoned place. On one day with the false assurance of marrying her, in the afternoon accused had sexual intercourse with her against her wish and refusal. Thereafter, two to three occasion accused had sex with her. She conceived and she informed the said fact to the accused and requested him to marry her. However, the accused did not agree to marry her. Hence, she

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informed her parents about the sexual acts committed by

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the accused against her wish and also that she conceived.

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PW-2 in her further evidence has stated that her parents requested elders of the village to give justice to PW-2 and elders of the village held a Panchayath and in the Panchayath, accused refused to marry PW-2 and also told them that he was not responsible for pregnancy of PW-2. Thereafter, she lodged a complaint to the police as per Ex.P1. On her information a lady had written complaint and she filed it to police. After lodging the complaint, police came to the spot and drew mahazars and obtained her signature as per Ex.P2. The police had also taken photographs at the time of the mahazar.

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PW-2 has further stated that she was taken to Chigateri District Hospital, Davanagere and the Government Hospital at Honnali for medical examination. At the time of medical examination, her dresses were seized by the police. Thereafter, she was taken before the Magistrate, wherein she has given the statement as per

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Ex.P4. She has further stated that eight months after filing the complaint, she delivered baby boy and the said baby died after two days after its birth.

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In the cross-examination, she has elaborated

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the evidence given in the examination-in-chief. She has also stated that she did not inform her parents about her pregnancy. She was not tutored by any police to give evidence before the Court. She denied the suggestions of the accused that accused did not had sex with her and she did not conceive due to acts of accused. She denied the suggestion that she and her parents insisted the accused to marry her and when the accused refused to marry her, they lodged a false police complaint.

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PW-3/H.Parameshwarappa is a witness to the mahazar of the spot of the incident, i.e., Ex.P2. He has supported the case of the prosecution. In his crossexamination, he has stated that CPI has written the mahazar. Complainant was also present, at the time of drawing up of mahazar. It was read over to him and he understood the contents. He denied the suggestions that

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he was giving false evidence. He accepted that he was familiar with the President of the village Panchayath by name Smt.Anusuyamma. he denied the suggestion that on the advise of Smt.Anusuyamma, he was giving false evidence. He is no material witness; however nothing is brought out in his cross-examination to disbelieve his evidence.

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PW-3/H.Parameshwarappa is not a material witness to the incident. He witnessed the spot mahazar. In the cross-examination of PW-2, it is not denied that place of incident is nearby Canal situated in Kyasinakere Village. It is also not denied of drawing up of Ex.P2 at the spot of the incident and it was suggested that Exs.P2 and P3 were created for the purpose of this case, which was denied by PWs-2 and 5. By the evidence of PWs-2 and PW-3 prosecution is able to prove the drawing of Ex.P2 at the spot and taking of photographs as per Ex.P3.

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PW-4/Smt.Anasuyamma and PW-7/Jayappa are elders of the village who held a Panchayath for persuading accused to marry the victim girl. PW-4 in her evidence has

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stated that prior to filing of the complaint, PWs-1 and 2 approached her and told her that accused has raped victim girl and refused to marry her. Therefore, requested her to hold a Panchayath and persuade the accused, to marry the victim girl and in the Panchayath, when the elders have enquired with the accused, he told that he was not responsible for pregnancy of the victim and that he would not marry her. When the victim girl was enquired in the Panchayath, she told that the accused was responsible for her pregnancy. Since the matter was not settled between the parties, she advised PW-1 to take appropriate action against the accused, in accordance with law and lodge Police complaint.

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In her cross-examination, she has stated that when she came to know about the heinous acts committed by the accused, she advised PWs-1 and 2 to lodge a complaint to the police. Accused, in her cross-examination, has suggested that she was belonging to different political party and accused is belonging to different political party, therefore, she was giving false evidence against the

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accused and she denied the said suggestion. The suggestion of the accused that the reasons for falsely implicating of the accused in the incident is due to political rivalry was not admitted by her. It is not brought out that PW-4 is connected with PWs-1 and 2. As a member of the Panchayath and as elder of the village, she wanted to settle the dispute between the parties. It is not a case of accused that PWs-1 and 2 are belonging to one political party and accused was belonging to another political party. Hence suggestion of accused is not probable. Hence, it cannot be believed that due to political rivalry, she was giving false evidence before the Court, against the accused. Moreover, PW-4 is not a material witness in this case. It is only circumstantial evidence to support the case of the prosecution. Her evidence corroborates evidence of PWs-1 and 2 and the case of the prosecution.

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PW-7/Jayappa is also member of the

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Panchayath. He has also stated that about a year prior to giving evidence before the Court, a Panchayath was held in his village and in the presence of the Panchayath, PW-1

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told before the elders of the village that accused raped PW-2 and she became pregnant. The elders of the village asked the accused to marry the victim girl, who was pregnant but the accused did not agree and he refused to marry her. However, the accused admitted in the Panchayath that he was responsible for her pregnancy. In the cross-examination, his evidence was denied. PW-7 admitted that he was in good terms with PWs-1 and 2. He denied the suggestion that he was not at all participated in the Panchayath and no such Panchayath was held in the village. It is pertinent to note that accused, PWs-1 and 2, PW-7 are the residents of Kyasinakere Village. They were known to one another. Since it is a small village, the people might be familiar to each other and have friendly relationship with each other. Only on the basis that he was familiar with PWS-1 and 2, PW-7, he cannot be considered as an interested witness. He is also not a material witness

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and his evidence corroborate the case of the prosecution that prior to filing of the complaint, Panchayath was held to settle the dispute between the parties.

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PW-8/Shailajakumari is the Head Mistress of Government Primary School at Kyasinakere Village. In her evidence, she has stated that as requested by the Police she issued certificate containing date of birth of Kumari.Geetha, Daughter of Manjappa on the basis of information found in the admission register of students maintained in the school; And Sl.No.39/2007-2008 pertaining to the victim and as per the entry in the said register, her date of birth is 01.06.2001. On the basis of the said register, she issued date of birth Certificate as per Ex.P7. She has also issued Certificate of accused, by name, Manjappa, Son of A.K.Rudrappa as per Ex.P8. In her cross-examination, she has stated that while admitting any student in the School, the student has to produce birth certificate and on that basis, admission register will be mentioned. On that basis, date of birth will be in the admission register. She has issued birth certificate of both the victim and the accused on the basis of the school register. She has not brought the said school register on the date of the evidence, however, she has brought a copy

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of the said register. She denied the suggestion of the accused that at the instance of the police, she has given false Exs.P7 and P8.

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Ex.P7 is the Birth Certificate of the victim girl, wherein name of her parents is mentioned. Serial Number of admission, her caste and year of study are all mentioned in the said register. To prove the said document, prosecution examined PW-8. In her cross-examination, nothing is brought out to disbelieve or discard her evidence as well as Ex.P7. In the cross-examination, she has stated that she brought copy of the register.

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However, the learned Public Prosecutor who lead the evidence of the witness, did not secure the said document and mark it during the evidence. It is not brought out in her examination that she is an interested witness and the Certificate given by her was concocted. She repeatedly in the examination-in-chief and cross-examination has stated

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that Ex.P7 was given on the basis of materials available in the register. It is also pertinent to note that she had issued

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Ex.P8, i.e., particulars of the admission of the accused as per the register. The said facts are not disputed or denied by the accused. During the course of the admission of the student in the School, at an undisputed time the said particulars were mentioned in the register. In her crossexamination, she has stated that at the time of admission of a student, the student has to bring birth certificate and that will be mentioned in the register. It supports the case of the prosecution that entries in the register were made on the basis of the certificate produced by the student. There are no reasons or doubt the correctness of Ex.P7.

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The accused did not disclose the date of birth of victim according to his information. Even he has not produced any document to rebut the evidence of PW-8. As already stated above, in the regular course of business of School, the entries were made by the concerned staff in the School and based on the particulars mentioned in the register, Ex.P7 was given by PW-8. Therefore, it has got presumptive value and the said presumption is not rebutted by the accused. Therefore, the prosecution was able to

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prove that the date of birth of victim girl is 01.06.2001. It proves that as on the date of the incident, the victim girl was aged 14 years and eight months and she was a ‘minor and child’ as defined under the POCSO Act.

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PW-9/Suresh is not a material witness to the incident. Moreover, it is a record of right, i.e., a public document, which has got presumptive value.

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PW-10/Dr.Arunakumari.B., is the medical officer serving at C.G.Hospital, Davanagere. According to her evidence, on 15.07.2016, she examined victim girl and found that the victim girl was pregnant of sixteen weeks and as per the report of the Dentist, her age was between 16 to 17 years. In her cross-examination, this fact is not disputed.

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PW-11/Dr.Thippeswamy is also a Medical Officer working in C.G.Hospital, Davanagere. According to his evidence, he examined victim girl and had seen the development of her teeth. Since the victim girl was

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pregnant, he did not take any X-ray and on the basis of her

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teeth, he assessed her age between 16 to 17 years.

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In his cross-examination, he has stated that assessing

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age based on teeth could vary by plus or minus two years from the assessment. According to the evidence of PWs-10 and 11, age of the victim might be 16 to 17 years and she was pregnant. The said age was assessed on the basis of development of her teeth.

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The learned advocate for respondent accused submit that from the evidence of both it could be assessed that victim is aged 18 to 19 years and she was major. Hence, provision of POCSO Act is not applicable.

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In this case, the prosecution has produced Ex.P7, which indicates that age of the victim was fourteen (14) years and eight (8) months as on the date of filing of the complaint and at the time of the incident, it might be less than that because the complaint was given after eight (8) months from the date of the incident. In this case prosecution has produced Ex.P7 to prove the same examined PW-8. By the said evidence it is proved that the

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date of death of the victim was 01.06.2001 and she was

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aged 14 years and 8months. Since documentary evidence is available in this case, that is proved by the prosecution,

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that shall be considered to assess the age of the victim.

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PW-13/Smt.Nazimabhanu, a woman police constable who had taken victim to Government Hospital, Honnali and thereafter has taken her to C.G. Hospital at Davanagere and produced before the Medical Officer. After medical examination, she brought her back to the police station. She has deposed said facts before Court and she is not a material witness to the incident.

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PW-12/Smt.Reshma is scribe of complaint that is, Ex.P1. PW- 12 in her evidence has stated that she has been serving in child helpline and on 03.04.2016, a girl aged about 15 years approached to the said child helpline along with her parents and she informed about the alleged

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sexual act on her by the accused. She has given the details and according to said details, she wrote complaint as per

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Ex.P1 and obtained her signature. Thereafter, she has taken the victim to the concerned police station and presented the said complaint. On the basis of said complaint, police registered a case in Honnali police station. In her cross-examination, she has elaborated her evidence. PW-12 denied suggestions of the learned advocate for the accused. PW-1 in her evidence has stated that she gave information to a lady to write the complaint since she was illiterate or was not knowing to read and write and after the said lady wrote the Ex.P1, she presented it to the police station and the police, on that basis, registered a criminal case against the accused. Evidence of PWs-1, 12 and PW15 corroborate the evidence of each other and PW-1 has stated about writing of the Ex.P1 through assistance of PW-12 and PW-12 says that on the information furnished by victim girl, she drafted the complaint. Nothing is brought out in the cross-examination of PWs-1, 12 and 15 collected by PW-14, to discard their evidence.

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PW-14 in his evidence has stated that on 20.04.2016, the concerned PSI of Honnali police station,

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authorized him to search and arrest the accused and he got credible information from known source, that accused was in Ranebennuru Town Bus-stand. Thereafter, PW-14 went to Ranebennuru Town Bus-stand and he arrested the accused in the said Bus-stand. Thereafter, the accused was produced along with report before the PSI. As per Ex.P10, he identified the accused in the Court. PW-15 is PSI. He has instructed PW-14 for arrest of accused and produced him before the Court.

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PW-15/Shri.Ashwinkumar in his evidence has corroborated the said evidence of authorizing PW-14 to arrest the accused and produce before him and accordingly, PW-14 arrested the accused and produced before him.

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Thereafter, he arrested him in accordance with the Rules and after medical examination of the accused, he was produced before the Special Court. PW-15, has partly investigated the case. On 03.04.2016 at 11.45 a.m., he received written complaint from PW-2. It was written by PW-12. Thereafter, he registered FIR in Crime No.119 of

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2016 and submitted the FIR to the Court. He has further stated that PW-14 has arrested the accused and produced before him on 21.04.2016 at 12 noon. In the crossexamination of PWs-14 and 15, it was suggested that police have not arrested the accused; the accused was illegally arrested by the police and detained in the custody and he was not arrested in Ranebennur.

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In the cross- examination, PWs-14 and 15 have denied the suggestions of the learned advocate for accused. It is pertinent to note that on 21.04.2016, accused was produced before the Court in S.C.No.95 of 2016 and he was not granted the bail, and was remanded to jail. Thereby, prosecution has proved that accused was arrested and produced before the Special Court as stated by PWs-14 and 15.

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As per the evidence of PW-16/Ramesh.J., who is the Investigating Officer, he has narrated conducting of the investigation, collecting of the documents and submitting of the final report to the Court. His evidence is corroborated with the evidence of other material witnesses. In his cross-

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examination, he has elaborated the facts which are already stated in the examination-in-chief.

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The learned advocate for respondent No.1 has vehemently contended that incident was said to be taken place about eight (8) months prior to 03.04.2016, i.e., date of filing of the complaint. Accused or PW-2 did not file a complaint till expiry of the eight (8) months and thereafter victim girl as well as her parents filed complaint and there is no explanation for the delay in filing complaint.

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In the entire cross-examination of PWs-1 and 2, it is not brought out by the accused regarding marriage of PW-2 and the accused. According to her evidence, accused was belonging to same community and both of them were well conversant with each other. She has stated that the accused persuaded her and had sexual intercourse with her frequently. In her cross-examination, nothing is brought out to show that she is a tutored witness.

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The victim girl was aged about 14 years at the time of alleged incident. She is an illiterate girl. She is a poor rustic villager and was doing coolie work of peeling

¶140

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areca-nut. Accused who had intimacy with her, had cheated her and had sex with her and after she conceived he refused to marry her. PWs-1 and 2 persuaded accused to marry her and not to spoil her life. Accused did not agree for the same. Thereafter, both PWs-1 and 2 have approached the elders of the village and initially they assured PW-1 that they would try to settle the dispute and they held a Panchayath and in the Panchayath, accused/respondent No.1 refused to marry the victim girl. In view of the said reasons, helplessly, as advised by elders of the panchayath PW-2 filed police complaint, so as to get justice. All the while PWs-1 and 2 believed that accused fulfil his promise and would marry PW-2. Even they tried to advise through elders of the village. When accused did not heed to any ones request, PW-2 lodged complaint. Hence said delay would not affect the merits of the prosecution case.

¶142

The learned HCGP vehemently contends that the learned Sessions Judge has totally ignored Ex.P7 and tried to assess age of the victim girl on the basis of evidence of

¶143

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PWs-10 and 11. Both the doctors have stated that the approximate age of victim girl was between 16 and 17 years. The learned Sessions Judge completely ignored evidence of PW-8 and Ex.P7. The trial judge in the

¶145

impugned judgment held that since the birth certificate given by the competent authority has not been produced, the school certificate has not of much evidentiary value, on this premise, the learned Sessions Judge completely ignored Ex.P7 and evidence of PW-8 which is totally incorrect.

¶146

The learned Sessions Judge did not consider Section 94 of J.J. Act 2015. The learned Sessions Judge ought to have accepted Ex.P7 to believe that date of birth of victim girl as 01.06.2001 and on the basis of evidence of PWs-11 and 12, the learned Sessions Judge held that victim girl was major as on the date of incident and it was consensual sex.

¶147

The learned advocate for Respondent No.1/ accused has supported the impugned judgment and

¶148

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reasons assigned by the learned Sessions Judge in holding that victim girl was major at the time of alleged incident.

¶150

We have discussed the evidence of PW-8 in the above paragraphs along with Ex.P7. PW-8 in her evidence has stated that on the basis of contents of register maintained in the school, she issued Ex.P7 containing date of birth of the victim.

¶151

According to Ex.P7, date of birth of victim girl is 01.06.2001. Accused has not obtained or produced any documents to rebut evidence of PW-8 and Ex.P7.

¶152

PW-1 in her evidence stated that victim girl was seventeen (17) years old as on date of her evidence and in her cross-examination, accused has not at all disputed about her age. Her evidence was recorded on 17.01.2017. In the evidence of PW-2, the accused has not brought out that she was major at the time of alleged incident. In the cross-examination of PW-8, accused has not denied that date of birth of victim as 01.06.2001 or he has suggested any other date, as date of birth of victim according to his knowledge.

¶153

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¶154

On going through the entire evidence lead by the prosecution as well as cross-examination of the said witnesses, relevant to prove the age of the victim, even no suggestions were made that victim was major at the time of alleged incident. When the said fact was not at all disputed by the accused, there was no need for the learned Sessions Judge to discard evidence given by the witnesses as well as Ex.P7 and hold that victim was a major at the time of incident. The said finding of the learned Sessions Judge is erroneous and perverse.

¶155

To attract the provisions of the POCSO Act, it is necessary for the prosecution, to prove that the victim girl was minor i.e., below the age of eighteen (18) years as on the date of incident. The age of victim is also necessary to consider whether alleged sexual act was a consensual sex or it was rape. If she is a minor, then the question of giving consent to commit the sexual offence does not arise. And if she was a major as on the date of alleged offences, then only the next question arises as to whether the victim had consented for the said illegal acts committed by accused,

¶156

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¶157

against the said victim. Therefore, age of the victim girl is

¶158

most important to be determined in this case.

¶159

Section 2(d) of Protection of Children from

¶160

Sexual Offences Act, 2012 reads as under:

¶161

“A child means any person below the age of 18 years”.

¶162

Under the provisions of POCSO Act, it is not stated

¶163

how to determine age of the victim. Therefore, the age of the victim has to be determined on the basis of judicial precedents, rendered by the Hon’ble Apex Court as well as by this Court. In the case of The State through Grameen

¶164

Police Station, Gulbarga Vs. Sharanu @ Sharanappa @ Sharanabassappa¹ rendered by the Co-ordinate Bench of this Court (wherein the Senior member of this Bench has authored the judgment) wherein relying on the earlier judgment of Hon’ble Apex Court in the case of Jarnail Singh Vs. State of Haryana² and Mahadeo, Son of Kerba

¶165

1 2022 LiveLaw (Kar) 442 2 (2013) 7 SCC 263

¶166

35 Crl.A.No.821/2018

¶167

Maske Vs. State of Maharashtra and another³ held that to

¶168

determine the age of minor victim Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as ‘the Juvenile Justice Rules, 2007) would be applicable.

¶169

The learned Additional State Public Prosecutor has relied on the law laid down in the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh and others⁴ , wherein the Hon’ble Apex Court held that the documents mentioned in Rule 12(3)(a)(i)(ii)(iii) of the Juvenile Justice Rules, 2007 framed under the Juvenile Justice Act 2000 or

¶170

the documents mentioned in Section 94(2) of Juvenile Justice Act 2015 shall be sufficient to prima-facie accept age of minor. On the basis of such documents, a presumption of juvenility may be raised, though the above said document is however not conclusive proof of the age

¶171

of juvenility and the same may be rebutted by contra evidence let-in by the opposite side.

¶172

Section 94(2) of the J.J. Act of 2015 reads as under:

¶173

3 (2013) 14 SCC 637

¶174

(2022) 8 SCC 602

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Section 94(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—

¶177

(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;

¶178

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

¶179

(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:

¶180

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.

¶181

In this case, according to the case of

¶182

prosecution as well as evidence of PWs-1 and 2, PW-2 was admitted to primary school to study first standard, however

¶183

37 Crl.A.No.821/2018

¶184

she did not complete it. And while admitting her to the school, date of birth given by PW-1 and her husband were entered in the register maintained by the school. PW-8 issued certificate, i.e., Ex.P7 containing date of birth of the victim, based on the information mentioned in the register. To prove the said document, prosecution examined PW-8 and in her cross-examination, nothing is brought out to discard or disbelieve evidence of PW-8 which is already discussed above. Thereby, prosecution has proved that date of birth of victim girl is 01.06.2001 as mentioned in Ex.P7; And that victim was minor as on the date of the incident.

¶185

PW-2/victim girl, during her evidence has stated that she and the accused were working as Coolies in the same place and both of them are belonging to same community/caste. The accused developed close intimacy with her. He was repeatedly assuring her that he would marry her and is in deep love with her and with a false pretext that he was serious in marrying her used to take her near canal for chit-chatting. On one day he had sex

¶186

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with her. He used to take her near the Canal and had sexual intercourse with her three to four times, against her wish. She conceived and she told said fact to accused and requested him to marry her. The accused refused to marry her and she informed said fact to her parents. The said evidence of PW-2 regarding pregnancy of PW-1 and request made to accused is corroborated by PW-1. She has also stated that she requested the accused to marry PW-2 and accused refused to marry her. In view of these reasons, she requested elders of the village to advise accused to marry PW-2 since he was responsible for her pregnancy and he had misused her innocence. PWs-4 and 7 corroborated evidence of PWs-1 and 2 about holding of Panchayat to persuade accused to marry PW-1 and accused refused to marry PW-2. PW-7 has stated that accused told before the Panchayath that he was responsible for pregnancy of PW-2. This fact is not seriously disputed by the accused in the cross-examination of PW-7.

¶188

PW-6 and PW-10 are medical officers who have clinically examined victim girl and stated that victim was

¶189

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pregnant. Pregnancy of the victim is not in dispute. According to evidence of PW-1 that accused was responsible for her pregnancy. PW-5 who has clinically examined accused, gave opinion that he was potential and capable of doing sexual acts. Accordingly, he gave certificate as per Ex.P5. In Ex.P5 also, PW-5 has mentioned about the physical development of sexual organs of the accused. It appears that due to death of the baby, born to victim girl, within 2 days from the date of delivery, the investigating officer could not collect the blood sample of son of the victim for DNA test. All these evidence prove the case of the prosecution that the accused was responsible for the pregnancy of the victim girl.

¶191

The victim was minor at the time of incident. Hence, the question of her consent to the accused for having sexual intercourse with her, does not arise. PW-2 has repeatedly stated that accused had sex with her 3 to 4 times.

¶192

PWs-15 and 16 have stated in detail about the investigation done by them and also through them, the

¶193

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relevant documents were got marked. The said evidence corroborates the case made out by the prosecution. In the cross-examination of PWs-15 and 16, nothing is brought out to show that there were any lapse on the part of the investigating agency in investigating the case. Much is argued regarding non-production of birth certificate issued by the competent authority, however, as discussed in the above paragraphs and in view of Section 94(2) of J.J. Act 2015, it is sufficient to produce the certificate given by the school and by examining the competent person who has issued the such certificate.

¶195

It may be true that PW-2 did not co-operate with the learned Magistrate while recording her statement under Section 164 of Cr.P.C. However, looking to the status of the victim girl, her educational background, social status and economical status and blame of parents, she might have feared while recording of the statement under Section 164 of Cr.P.C., by the learned Magistrate. On that basis, it cannot be held that the evidence given by PW-2 before the Court was not credible. Her evidence is reliable.

¶196

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¶197

We know the limitation of the Appellate Court

¶198

while intervening in the findings of the Special Court or reversing acquittal of judgment passed by the Special Court. We are also aware that under the provisions of Code of Criminal Procedure, the Appellate Court after appreciation of evidence of prosecution witnesses, if two views are possible and view of trial Court is also possible then same has to be upheld. On the contrary on the reconsideration the evidence if it is found that the trial Court has not properly appreciated the evidence of the witnesses or considered the case of the prosecution properly and if judgment passed by the Trial Court is perverse, arbitrary, illegal and lead to miscarriage of justice, then the Appellate Court has every jurisdiction to interfere in the said findings of the Trial Court and reverse the acquittal judgment passed by the Trial Court.

¶199

In the case of Guru Dutt Pathak Vs. State of Uttar Pradesh⁵ , the Hon’ble Apex Court has held that each and every ground on which trial court acquitted the

¶200

5 LL 2021 SC 245

¶201

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accused was elaborately dealt with by the High Court. On re-appreciation of entire evidence on record, the High Court specifically concluded that findings recorded by the Trial Court were perverse. Therefore, the High Court was right in interfering with the judgment and order of acquittal passed by the Trial Court and convicting the accused under Section 302 read with Section 34 of the IPC. Hence, no interference is required.

¶203

In the case of Siju Kurian Vs. State of

¶204

Karnataka⁶ , it is held that (we quote):

¶205

13. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh, it has been held by this Court as under:

¶206

6 2023 SCC OnLine SC 429

¶207

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“14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr.Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so.

¶209

The Appellate court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having placed on the High Court in exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on exercise of the

¶210

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¶211

power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed.

¶212

In the case of Sheo Swarup v. King Emperor, it has been held by the Privy Council as under:

¶213

But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as:

¶214

1) The views/opinion of the trial judge as to the credibility of the witnesses;

¶215

2) The presumption of innocence in favour of the accused;

¶216

3) The right of the accused to the benefit of any doubt; and

¶217

4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.

¶218

45 Crl.A.No.821/2018

¶219

In the case of Chandrappa Vs. State of

¶220

Karnataka⁷ reiterated the legal position as under :

¶221

‘42. … (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

¶222

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

¶223

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

¶224

7 (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] ,

¶225

46 Crl.A.No.821/2018

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(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.

¶227

(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.’

¶228

The principle of law laid down in the above said judgment is applicable to the facts of the present case. Therefore, reversing of the findings of the impugned judgment is very much necessary.

¶229

The learned Sessions Judge discussed in detail regarding proof of age of the victim girl, and considering the evidence, the learned Sessions Judge held that victim was major at the time of alleged incident and it was a consensual sex. The learned Sessions Judge has not at all

¶230

47 Crl.A.No.821/2018

¶231

considered the law laid down by the Hon’ble Apex Court as well as this Court for determining the age of the victim girl. The learned Sessions Judge has also not considered the provisions of J.J. Act and Rules, therefore totally ignored Ex.P7 and evidence given by PW-8. The learned Sessions Judge by ignoring the material evidence available on record, tried to assess the age of the victim on the basis of inaccurate medical evidence. It is admitted by PW-11 that since the victim girl was pregnant at the time of her clinical test, he could not take her X-ray. And by seeing the X-ray age could be assessed accurately. And, considering the said evidence, it was held by the learned Sessions Judge that victim was major at the time of incident. In view of these reasons, there is serious miscarriage of the justice. The learned Sessions Judge appears to have accepted the case of prosecution that accused had sexual intercourse with the victim girl and he was responsible for her pregnancy. However, the learned Sessions Judge held that it was consensual sex and not considered evidence of PW-2 that

¶232

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she had refused for the sex and it was against her wish. Hence the said finding is also incorrect.

¶234

In this case, it is already proved by the prosecution that victim girl was minor at the time of incident. For the sake of discussion, even if we accept that she was a major, then, merely because she did not lodge a complaint immediately after the incident, it cannot be said that she had consented for sexual intercourse. During the evidence, PW-2 has stated that the accused had sex with her without her consent and even after she refused to have such acts with her, the accused had sex with her forcefully 3 to 4 times. The said evidence of PW-2 she clearly says that it was not with her consent. Under such circumstances, finding of Trial Court that it was consensual sex is perverse. It cannot be considered that with the consent, the accused had sex with the victim girl. Moreover, it is not the contention of the accused that it was consensual sex. On the contrary, he has totally denied the case made out by the prosecution. Therefore, question of the victim had consented for sexual acts would not arise.

¶235

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¶236

Section 114-A of the Indian Evidence Act deals

¶237

with consent and it reads as under:

¶238

“ 114A. Presumption as to absence of consent in certain prosecution for rape. -- In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”

¶239

Explanation. In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860).”

¶240

That in a prosecution for rape, Clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of Section 376 of Indian Penal Code where sexual intercourse by an

¶241

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accused is proved and the question is whether it was without consent or the woman alleged to have been raped and such a woman states in her evidence before the Court that she did not give consent, the Court shall presume that she did not give consent.

¶243

Therefore, in this case, PW-2 in her evidence has stated that she did not give consent for sexual acts. Under such circumstances, the question that she had given consent does not arise. Moreover, as already stated above, in the present case, PW-2 is minor. Therefore, question of consent do not arise.

¶244

In this case, victim girl is an illiterate, aged about around 15 years at the time of incident, residing at village and doing coolie work may be due to poverty. Her parents are illiterate. It appears that there is no much exposure and such a victim girl was persuaded and forced by the accused. After sexually exploiting her he refused to marry her, though he was said to have promised to marry her. He washed off his hands and allowed the victim to suffer for her innocence. Under these circumstances, on too technical reasons, the

¶245

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Special Court ought not to have acquitted the accused. Therefore, the findings of the learned Sessions Judge is perverse and contrary to the law. In view of these reasons, it is necessary to interfere in the findings of the learned Sessions Judge.

¶247

The burden shifts on the accused to prove his innocence as provided under Section 29 of POCSO Act which reads as under:

¶248

“Section 29. Presumption as to certain offences

¶249

Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

¶250

Accused did not lead any defence evidence and his defence are not probable. Hence accused is not able to rebut the case of prosecution.

¶251

The prosecution proved beyond all reasonable doubt that accused has committed an offence punishable under Section 376(2)(n) of IPC and Section 6 of POCSO Act.

¶252

52 Crl.A.No.821/2018

¶253

For the aforesaid discussion, we answer Point Nos.1 to 3 in the ‘affirmative’.

¶254

Section 5(l) of POCSO Act and Section 376(2)(n) of IPC are of same ingredients. In case of Section 5(l) of POCSO Act, the main ingredient is that victim girl should be a minor, below the age of 18 years. In this case, the victim girl is aged around 15 years at the time of incident. Section 42 of POCSO Act reads as under:

¶255

“42. Alternate punishment.—Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 2[376A, 376AB,376B, 376C, 376D, 376DA, 376DB], 3[376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

¶256

It deals with alternative punishment. According to the

¶257

said Section, where an act or omission constitute an offence punishable under this Act and also under any other law for

¶258

the time being in force, then, notwithstanding anything contained in any other law for the time being in force, the

¶259

53 Crl.A.No.821/2018

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offender found guilty of such offence shall be liable to punishment only under such law or this Act as provides for punishment which is greater in degree.

¶261

Section 5(l) of POCSO Act is punishable under Section 6 of POCSO Act. The punishment prescribed under Section 6 of the POCSO Act is “with rigorous imprisonment for a term which shall not be less than ten (10) years but which may extend to imprisonment for life and shall also be liable to fine” And punishment prescribed for the offence punishable under Section 376(2)(n) of IPC is that such an “accused shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and shall also be liable to fine.” More or less, punishment prescribed for both offences are similar. However, in this case, victim girl is a minor and special benefits are given to the prosecution under Section 29 of the POCSO Act, regarding burden of proof of the

¶262

case. Considering these facts, it is deemed appropriate that the accused shall be convicted under the provisions of POCSO Act.

¶263

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¶264

For the aforesaid discussion, we pass the

¶265

following:

¶266

ORDER

¶267

i) The Appeal is allowed. ii) The impugned judgment passed by the

¶268

learned II Additional District and Sessions Judge and Special Judge at Davangere in S.C.No.95 of 2016 dated 13.10.2017 acquitting the accused of the offence punishable under Section 376 of IPC and Section 6 of the POCSO Act is set aside.

¶269

iii) The accused is convicted of the offence

¶270

punishable under Section 376 of IPC and Section 6 of the POCSO Act.

To hear on sentence.

Sd/JUDGE

Sd/JUDGE

55 Crl.A.No.821/2018

DR.HBPSJ & UMBAJ: Crl.A.No.821/2018 22.02.2024

¶277

HEARING ON SENTENCE

¶278

Heard the learned HCGP for the Appellant/State and

¶279

the learned Amicus Curiae for Respondent No.1/accused on sentence.

¶280

The learned Amicus Curiae submits that there

¶281

are no criminal antecedents against the accused. At the time of incident, he was 23 years old and at present, he may be hardly 30 years old person. He belongs to a very poor family. He has social and family responsibilities. Considering these facts, leniency may be taken while imposing the sentence.

¶282

The learned HCGP vehemently contends that accused had victimized innocent minor girl and had sex with her against her wish. When she became pregnant, the accused refused to marry her and spoiled her future life. The said social stigma will continue till her lifetime. Therefore, the accused does not deserve any leniency and the maximum permissible sentence be imposed against accused.

¶283

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¶284

The accused had committed heinous crime

¶285

against a minor victim. Looking to the facts and circumstances, we are not inclined to extend the benefit of Probation of Offenders Act to the accused.

¶286

While imposing the sentence, the Court has to consider the hardship of the accused if maximum permissible sentence is imposed on him. Similarly, it should not be inadequate/disproportionate and shall not be nominal. It is not in dispute that there are no criminal antecedents against the accused. It is also on record that the accused was aged about 23 years at the time of incident and presently he might be around 30 years.

¶287

Considering his social and family responsibilities, similarly, his poverty, lenient view needs to be taken while imposing the sentence.

¶288

As already stated above, the ingredients and punishment prescribed for the offence punishable under Section 376 of IPC and Section 6 of POCSO Act are more or less Similar. And in this case, the victim is minor.

¶289

57 Crl.A.No.821/2018

¶290

Therefore, we deem it appropriate to sentence the accused under Section 6 of POCSO Act. Accordingly, we pass following:

¶291

ORDER

¶292

i) The accused, namely, Manjappa, Son of Rudrappa, Resident of Kyasinakere Village, Honnali Taluk, Davanagere is sentenced to undergo rigorous imprisonment for a period of ten (10) years and shall pay fine of `25,000 (Rupees Twenty Five Thousand only) and in default of payment of fine, he shall further undergo imprisonment for a period of one (1) year for the offence punishable under Section 6 of POCSO Act.

¶293

ii) The accused is entitled for set-off as provided under Section 428 of Cr.P.C. of the period when he was in judicial custody during investigation and trial.

¶294

iii) Out of the fine amount, `20,000 (Rupees Twenty Thousand only) is ordered to be

¶295

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paid to the victim PW-2 as compensation under Section 357 of Cr.P.C.

¶297

iv) The Member Secretary of the concerned District Legal Services Committee (for short, DLSC) be directed to consider the case of victim and award suitable compensation under Victim Compensation Scheme.

¶298

v) Three months time is granted to the DLSC to consider the same and award the compensation to the victim as provided under Section 357(A) of Cr.P.C.

¶299

vi) The Registry is directed to send copy of this judgment forthwith to the member Secretary of the concerned DLSC.

¶300

vii) The order of the Special Court regarding disposal of the property is not disturbed.

¶301

viii) Copy of this judgment shall be furnished to the accused free of cost.

¶302

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ix) The Registry is directed to send back

¶304

the Trial Court Records to the Special Court, along with copy of judgment.

¶305

x) Accused has been given forty five (45) days time to surrender before the concerned Court to undergo the sentence.

¶306

xi) While acknowledging the services rendered by the learned Amicus Curiae, Shri.V.S.Vinayaka, Advocate, the Registry is directed to pay a sum of `6,000 (Rupees Six Thousand only) as honorarium to the learned Amicus Curiae.

¶307

Sd/JUDGE

¶308

Sd/JUDGE

¶309

State by Police Inspector v. Manjappa

Case brief

What is this about?

What did the court decide?

State by Police Inspector v. Manjappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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