Partly allowed

State of Karnataka by v. Gireesh

Karnataka HC9 Feb 2024CRL.A/873/2017

Case brief

AI extract

What is this about?

State appeal against acquittal in a POCSO case where a school certificate proved the victim was aged about 14 years at the incident. The High Court held the trial court's guesswork-based age finding perverse, re-appreciated the evidence, convicted accused No.1 for kidnapping and repeated aggravated penetrative sexual assault, and confirmed acquittal of the other accused.

What did the court decide?

Accused No.1 convicted under Sections 366, 376 IPC and Section 6 POCSO Act; RI 10 years + Rs.50,000 fine (POCSO) and RI 5 years + Rs.5,000 fine (IPC), concurrently; Rs.50,000 to victim as compensation

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

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1 Crl.A.No.873/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH 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. 873 OF 2017 (A)

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BETWEEN:

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State of Karnataka by V.V. Puram Police Station Mysuru city Represented by State Public Prosecutor Bengaluru-01 ...Appellant

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(By Shri B.N.Jagadeesha, Additional SPP)

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AND:

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Gireesh S/o Ramesha Aged about 28 years

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Srinivasa

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S/o Ramesha Aged about 26 years

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R1 and R2 are R/o No.49 5^th cross, 3^rd stage Nandagokula South of Kumbarkoppal Mysuru city - 570 001

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Hanumanthaiah S/o late Rachappa Aged About 42 years

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R/o No.3, ‘A’ block Narm building Nandagokula South of Kumbarkoppal Mysuru city - 570 001

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Automurthy S/o late Mariyappa Aged about 28 years R/o No.16, 4^th cross 3^rd stage, Nandagokula South of Kumbarkoppal Mysuru city - 570 001

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Naveena S/o Narayana Aged about 37 years R/o No.10, 4^th cross 3^rd stage, Nandagokula South of Kumbarkoppal Mysuru city - 570 001

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Auto Hanumantha @ Hanumantha s/o Late Kuchelappa Aged about 46 years R/o No.24, 4^th cross 3^rd stage, Nandagokula South of Kumbarkoppal Mysuru city - 570 001.

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Rangaswamy S/o late Venkatashetty Aged about 70 years R/at T4, 'B' block Nanda Gokula, Gokulam III Stage Mysuru.

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…Respondents

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(By Shri Pavan H.K., Advocate for R1 and R2; Shri Renukaradhya, Advocate for Shri P Nataraju, Advocate for R3 to R6; R7 is served)

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This Criminal Appeal filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the judgment and order of acquittal dated 04.10.2016 passed by the VI Additional District and Special Judge, Mysuru in S.C.No.25/2014 acquitting the respondents of the offences punishable under Sections 366, 376, 506 read with Section 34 of IPC and Sections 4, 6, 21 of POCSO Act.

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This Criminal Appeal coming on for Further Arguments having been heard through Physical Hearing/Video Conference and reserved for judgment on 04.12.2023, 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 impugned judgment dated 04.10.2016 passed by the learned VI Additional District and Special Judge, Mysuru in S.C. No.25/2014 acquitting the accused for the offences punishable under Sections 366, 376 and 506 read with Section 34 of IPC and also Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for brevity ‘POCSO Act’).

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We refer to the parties as per their rank before the Trial Court.

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It is the case of prosecution that PW-1, the victim girl is daughter of PW-2/C.Rangaswamy and CW-3/Smt. Rathnamma. PW-2/Rangaswamy along with his family members was residing in a flat constructed by Slum Board. PW-2 is an illiterate and the victim girl is said to be studied only upto 6^th Standard in Kumbaru Koppalu Government Primary School. It appears that accused is also residing in the same locality along with his parents and he was working as mason.

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It is the case of prosecution that on 13.10.2013 at about 6.30 pm, when PW-2 and CW-3 were not at home, the victim/PW-1 went to fetch water from public tap situated nearby house of accused No.1. At that time, accused No.1 came in a motorcycle belonging to PW-9, Yogesha, Son of Papaiah and approached PW-1 to come along with him in the said motorcycle. When PW-1 started inquiry, accused No.1 told her that if she does not sit on the motorcycle quietly, he would commit suicide by consuming poison. Due to the said threat, she sat on the motorcycle as a pillion rider. The accused No.1 took her to Gaddige village of Hunasuru Taluk

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to the house of PW-4, Lokesha, Son of Venkataiah, who appears to be near relative of accused No.1. Both PW-1 and accused No.1 stayed in the said house for two days. On 15.10.2013, both PW-1 and accused went to Kittooru village of Piriyapatna Taluk and accused No.1 stayed in the house of PW-8 Ramachandra, Son of Venkataiah, who also appears to be relative of accused No.1. In the said house also due to

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force of accused No.1 she had to stay for three days. On 18.10.2013, both accused and PW-1 came to Mysuru and they wandered here and there till evening. Thereafter, accused No.1 returned motorcycle to CW-13 and boarded a bus going to Hullahalli. In Hullahalli also, due to force of accused No.1, she had to stay in the house of PW-3/ Smt.Venkatalakshmi, Wife of late Venkatesh for three days. Thereafter, accused No.1 again took PW-1 to the house of PW-8/Sri.Ramachandra and they stayed in the said house for three days. Thereafter, on 24.10.2013, accused No.1 and PW-1 came to Mysuru and went to a park situated in Akashvani Circle.

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Accused No.2 being a younger brother of accused No.1 had been informing from time to time about development regarding missing of PW-1 from her house and action taken by her parents and informed accused No.1 to change the places so as to avoid arrest by the police. He had also informed accused No.1 that on 24.10.2013, a missing complaint was lodged by PW-2 in the jurisdictional police station. It appears, he obtained signature of victim forcefully, on a blank white paper informing her that the complaint filed by her father would be withdrawn by giving in writing that she was not kidnapped by accused. Thereafter, when the victim came to park situated in Akashvani Circle, accused Nos.2 to 7 threatened her and forced her to state certain information before the Police, to prevent arrest of accused No.1, failing which she would face serious consequences.

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Accused Nos.2 to 7 took her to the house of PW13, Smt.Sudha, Wife of Ramachandra and requested her to inform to the concerned Police Commissioner that she found the victim girl in V.V.Puram Railway Station, who was crying for help and she had enquired her and got information that

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her father intended to arrange her marriage with one Basavaraj against her wish and because of which, she left her house and staying in the Railway Station since 13.10.2013. Accordingly, PW-13 took the victim girl to the office of the Police Commissioner, Mysuru and the Police Commissioner requested her to take the victim girl to the women police station. Accordingly, PW-13 took the victim girl to the women Police Station, Mysuru.

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It is further case of prosecution that in the Women Police Station, the concerned police enquired PW-1 and ascertained her address. Thereafter, they called both PW-2 and CW-3 to the police station and on enquiry CW-3 told the concerned SHO of the police station that they had already filed a complaint for missing of victim girl in V.V.Puram police station, Mysuru. Thereafter, the Women Police took the victim girl to the V.V.Puram Police Station for further proceedings. In the said Women Police Station, as well as in V.V.Puram Police Station, the victim girl gave incorrect statement due to threat of accused Nos.1 to 7.

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Accordingly, the said statement were recorded by both the police

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It is further case of prosecution that on 28.10.2013, on the repeated enquiry by her parents, she told to them that Accused No.1 forced her to come along with

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him in the motorcycle and he took her to different places, wherein he forcefully had sexual intercourse with her against her wish. Thereafter, PW-2 and CW-3 took her to V.V.Puram Police Station. PW-1 victim girl lodged complaint to police disclosing the true facts and on that basis, V.V.Puram Police registered a case in Crime No.129 of 2013 for the offences punishable under Sections 363, 376, 506, read with Section 34 of the IPC and Sections 4 and 6 of POCSO Act. The matter was investigated in detail and the complainant-police submitted charge-sheet to the Special Court for trying the offences punishable under POCSO Act and other sexual offences.

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The Presiding Officer of the Special Court took cognizance of the offence and registered it as Sessions Case No.25 of 2014. The Special Judge has secured the presence

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of accused. From the impugned judgment, it appears that except accused No.1, other accused were released on bail. The learned Sessions Judge supplied copy of chargesheet and enclosures to the accused as provided under Section 207 of Cr.P.C. The learned Special Judge heard both side on charge and framed the charges for the offences punishable under Sections 366 and 376 of the IPC and Sections 4, 6 and 21 of POCSO Act read with Section 34 of IPC. All the accused pleaded not guilty and claims to be tried.

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In an attempt to prove its case, prosecution has examined PWs-1 to 15 and got marked Exs.P1 to 35 and 7 properties as MOs- 1 to 7 and closed its evidence. Thereafter, the learned Special Judge examined accused Nos.1 to 7 under Section 313 of Cr.P.C., and their answers were recorded. The accused did not offer defence evidence when called upon and also not got marked any documents on their behalf.

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The learned Special Judge formed four points for determination and on appreciating the evidence on record,

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answered Point Nos. 1 to 4 in the negative and by impugned judgment acquitted the accused Nos. 1 to 7 of the alleged charges levelled against them.

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We have heard the arguments of the learned Additional State Public Prosecutor appearing for the Appellant/State and the learned advocates appearing for respondent Nos. 1 to 7.

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The learned Additional SPP would vehemently submit that the learned Trial judge in the impugned judgment, has not appreciated the evidence properly. The learned trial judge completely ignored evidence of PWs.1, 11, 12 and PW.15. The learned trial judge has also ignored Ex.P22 which is a clinching evidence to prove age of the victim girl. The learned Special Judge has not considered Section/Rule 94 of Juvenile Justice Act (for short, JJ Act) which is applicable to the case in hand, as per the law laid down by the Hon’ble Apex Court. When a document came in existence before an undisputed point of time i.e., school admission record, which was not seriously challenged by the accused, the Trial Court ought to have accepted the said

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evidence to hold that victim girl was minor as on the date of kidnapping i.e., on 13.10.2013 and she was aged about 14 years 3 months and 23 days when the incident had taken place. The date of birth of victim or her age was not seriously disputed before the Trial Court.

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From the cross-examination of prosecution witnesses defence of accused are that she voluntarily went along with accused No.1 and it was a consensual sex. It is also the defence of accused that after she was missing, the Basavaraj, who proposed to marry the victim girl, refused to marry her. Therefore, PWs.1, 2 and CW.3 contacted accused Nos.1 and 2 and their parents and persuaded them to arrange the marriage of accused No.1 and the victim. However, parents of accused refused the said proposal. Therefore, a false story was created by the parents of victim and got registered false case against the accused. The accused Nos.4 to 7 were close friends of father of the accused No.1. Therefore, they were also falsely implicated in this case, who advised both PWs-1 and 2 not to persuade accused No.1 to marry victim girl.

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When the prosecution proved that victim girl was minor and aged about 14 years and 3 months at the time of incident, question of consent does not arise; because there cannot be valid consent by a minor to do any such illegal acts. The other defence is not probable. It is not the case of accused that Accused No.1 was holding a very high post or position in the locality having lucrative salary or the accused Nos. 1, 2, 3 are from rich family. According to their own case, accused Nos.1 and 3 were mason and they were belonging to different community/caste. There was no reason to parents of victim to force accused No.1 to marry victim girl. The defence of accused is not probable.

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The learned Additional SPP has further submitted that PW-1/victim girl has stated in her evidence in detail that accused No.1 had taken her to different villages and to different houses of his relatives and had forceful sex with her against her wish, inspite of her refusal to have sex. These facts were not seriously denied or disputed by the accused in the cross-examination of victim girl. Documents produced by accused prove that she was a minor. Hence, question of her

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consent does not arise at all. In the cross-examination of PW-

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1, nothing was brought out to disbelieve or discard her evidence. Therefore, the evidence of victim has to be looked into with credibility, which is held by the Hon’ble Supreme Court in the case of Phool Singh Vs. State of Madhya Pradesh.¹

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The learned Additional SPP has further submitted that as per the evidence of PW-1, accused No.2 had complete knowledge about the incident and he has also knowledge that PW-2 had lodged complaint against about missing of PW1 and he used to give instructions to accused No.1 from time to time and was keeping a watch about movements of PW-2. Inspite of having knowledge that the victim girl was minor, he did not inform to the concerned police about kidnapping of a victim for illegal purpose of illicit intercourse with her by accused No.1. Similarly, accused Nos.3 to 7 had threatened the victim girl to give the statement in their favour and forced her not to disclose the true facts before the concerned police station. Thereby, they had also

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1 (2022)2 SCC 74

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committed the offence punishable under Sections 506 of the IPC and Section 21 of POCSO Act.

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The learned Additional SPP would further submit that the learned Sessions Judge has completely ignored the evidence of PWs.1 and 2, 11 and 12 and PW-14. The learned Sessions Judge completely ignored evidence lead by prosecution. The social, economical and educational status of family of PWs.1 and 2 has to be looked into before appreciating the evidence. They are not having any legal background. The victim girl was studied up to 5^th or 6^th standard as per evidence of PW-2 and she was thereafter residing at home and doing the household work. PW- 2 is an illiterate and even does not know to sign. Therefore, creating a story or falsely implicating the accused by them do not arise. Moreover, if they really intended to falsely implicate them in this case, then they could have done it at the earliest. The victim was kidnapped or missing from 13.10.2013. PW-2 and CW-3 searched her and when they were unable to trace out from the nearest and dearest one, thereafter PW-2 lodged the missing complaint on

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24.10.2013. After tracing of victim, PW-2 and CW-3 did not file any complaint immediately. Three to four days thereafter, when PW-2 and CW-3 revealed about all these incidents, they took her to police station and lodged the complaint. All these facts clearly indicates it is genuine and true. These facts were not considered by the trial court in the impugned judgment.

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The learned Additional SPP has further submitted that when the birth certificate given by school authorities is on record, assessing the age of victim, on the basis of date of birth of brother and sisters of victim or on the basis of marriage of PW-2 and having children in the interval of two years, was not necessary. On the contrary, the learned trial judge could have accepted the date of birth mentioned in Ex.P22, to believe that the victim was minor as on the date of the incident. It is nobody's case that after the incident, date of birth was entered in the school records. With these reasons, the learned Additional SPP submits that the prosecution had proved beyond reasonable doubt that the accused had committed the alleged offences and prayed for

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convicting the accused by reversing the impugned judgment of the Trial Court.

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The learned advocate for accused Nos.1 and 2 has vehemently contended that the burden is on the prosecution to prove that victim girl was minor as on the date of the incident. The investigating officer had not enquired with the Tahsildar or Municipal Authority or other authority, who are authorized to maintain the records of the birth and obtained the birth certificate from concerned authority, to prove that the date of birth of the minor. PW-2 in his evidence has not disclosed the age of victim girl or her date of birth and he pleads ignorance and stated before the Court that his wife/CW-3 must be having knowledge about these facts. However, she was not examined by the prosecution and material witness has been suppressed. He has further submitted that the evidence of PW-11 also do not help the prosecution to prove age of the victim girl. According to the certificate as well as evidence of PW-11, she had informed the concerned police to take the victim girl to ossification test. However, it was not conducted by the investigating

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officer by producing the victim girl to the competent medical officer. PW-11 in her cross-examination has admitted that

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she has mentioned age of victim girl on the basis of statement given by the victim as well as her mother. Therefore, it is not a medical opinion of PW-11 regarding age of the victim girl. PW-12 who was examined to prove Ex.P22 has stated that she does not know on what basis date of birth of the victim girl was mentioned in the school register. Therefore, her evidence is also not helpful to the case of prosecution. PW-15 in his cross-examination has admitted that she has not taken any efforts to ascertain the date of birth certificate from the concerned authority and also not produced the victim girl before the Medical Officer to conduct the ossification test to determine her age. Therefore, evidence of PW-1, PW-2, PW-11, PW-12 and PW-15 do not help the case of prosecution to prove that victim girl was minor as on the date of alleged incident.

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The learned advocate for accused Nos.1 and 2

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would further submit that from the evidence of PW-1 and PW2, it could be very clear that the victim girl was major as on

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the alleged date of incident. He has further submitted that victim girl in her evidence has stated that she was working as electrician in a factory and both PW-1 and PW-2 have admitted that to work in a factory atleast, one should complete age of 18 years and it was admitted by PW-1 and it clearly indicates that since she was a major, aged above 18 years, her services were taken by the concerned factory and she was working as electrician in the said company. It also indicates that she was not a minor as on the date of alleged incident. The learned counsel has relied on the judgment of the Hon’ble Supreme Court in the case of Alamelu and another Vs. State² . The learned counsel has also relied on the other judgments of the Hon’ble Apex Court and submitted that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt.

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The learned advocate for Respondents/accused Nos.1 and 2 would further submit that from the conduct of PW-1, it clearly indicates that even if there is such an offence, then she was a consenting party. According to the

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2 (2011) 2 SCC 385

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case of prosecution, as well as evidence of PW-1, the accused had taken her to different places and had sexual intercourse with her against her wish, but nowhere she complained either to the inmates of the house or co-passengers of the bus or shouted for help in public place. According to the cross-examination of PW-1, there were several persons at the time of alleged kidnap by accused No.1, but she did not seek

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help from anybody at the time of going as a pillion rider in the motorcycle. According to her cross-examination, it had taken some time to go to the house of relatives of accused No.1 and on the way, she did not request anybody to help her or rescue her from the accused. All this indicates that she was consenting party to the incident. When she was a major and consenting party to the incident, the question of kidnapping from a lawful guardian or committing rape on her does not arise at all. Therefore, he submitted that the learned Sessions Judge has properly appreciated the evidence on record and rightly acquitted the accused and it does not call for any interference by this Court.

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The learned advocate for Respondent Nos.3 to 6, i.e., accused Nos.3 to 6 has submitted that the allegations against accused No.3 to 6 were that they have threatened PW-1 from giving complaint. But there is no evidence to show that they had really given threat to the victim girl. If the victim girl is major and voluntarily went along with accused No.1, then question of threat by accused Nos. 3 to 7 to the victim girl does not arise at all. If really there was such a threat, she could have intimated the same to the Commissioner of Police or Women Police Station at Mysuru and V.V.Puram Police Station but she did not make any allegation against accused Nos.3 to 7 in all the three places, which clearly indicates that said allegations made in the complaint, lodged by PW-1 is an afterthought and after discussion and deliberations.

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The learned counsel has further submitted that there are no materials to believe that accused Nos.3 to 7 had knowledge that victim girl was minor and accused No.1 had committed an offence against minor. Under those circumstances, Section 21 of POCSO Act is not attracted to

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the allegations made against accused Nos.3 to 7. The prosecution has utterly failed to establish any case against accused Nos.3 to 7. The learned Sessions Judge has properly appreciated these facts and rightly came to conclusion that the prosecution had failed to establish guilt against accused Nos.3 to 7 and acquitted them. It does not call for any interference by this Court.

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The learned Additional SPP in his reply has submitted that the contention of respondents are not tenable, in view of the submission made by him in the earlier part of his argument and he has also relied on few judgments of the Hon’ble Apex Court as well as the High Courts and prayed for reversing the judgment and convicting the accused for the alleged offences.

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Following points arise for our determination:

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i) Whether prosecution proved beyond reasonable doubt that accused No.1 kidnapped the minor victim from the custody of her parents without their consent on 13.10.2013 at about 6.30 p.m., from South Kumbarakoppalu, Narm Building, in Mysuru, by inducing the said minor girl and also

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threatening that if she does not accompany him, then he would commit suicide and due to the said threat and its consequences on her, accused No.1 kidnapped the said minor victim in a motorcycle bearing registration No.KA-09-EG-5229 with an intention that the said victim girl forced to illicit intercourse and thereby accused No.1 had committed an offence punishable under Section 366 of IPC?

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ii) Whether prosecution proves beyond reasonable doubt that accused No.1 kidnapped the minor victim girl on 13.10.2013 and thereafter, committed rape on the said minor victim girl in different houses of relatives of accused No.1 at Gaddige village, Kittooru village, Hullahalli, Vasamala, and again at Meluru of Kittooru in Piriyaputna Taluk and repeatedly committed rape on the said minor victim girl from 13.10.2013 to 24.10.2013 and thereby accused No.1 had committed an offence punishable under Section 376 of IPC?

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iii) Whether prosecution proved beyond reasonable doubt that accused No.1 kidnapped minor victim girl from custody of her parents and from 13.10.2013 till 24.10.2013, accused No.1 had committed aggravated penetrative sexual assault repeatedly on the said minor girl in different places and thereby, accused No.1 had committed an offence punishable under Section 6 of POCSO Act?

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iv) Whether prosecution proved beyond reasonable doubt that accused No.1 had kidnapped minor victim on 13.10.2013 and when accused No.2 came to know that PW-2 had filed missing complaint of his minor daughter, accused Nos.2 and 4 to 7, in furtherance of a common intention and to suppress truth, accused Nos.2 and 4 to 7 threatened the victim minor girl of dire consequences and forced her to give incorrect/wrong statement to the police, failing which she would face dire consequences and thereby prevented her from giving true statement to the police and thereby, accused Nos.2 and 4 to 7 have committed an offence punishable under Section 506 read with ht to Section 34 of the IPC?

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v) Whether prosecution proved beyond reasonable doubt that accused Nos.2 and 4 to 7 having knowledge of commission of offence against victim minor girl under the POCSO Act, did not inform the said illegal act of accused No.1 to the concerned authority with an intention to permit accused No.1 to commit and continue the offences punishable under the provisions of POCSO Act and thereby, accused Nos.2 and 4 to 7 have committed an offence punishable under Section 21 of POCSO Act, read with Section 34 of the IPC?

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vi) What order?

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Point Nos. 1 to 5: To prove or to attract provisions

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of the POCSO Act, it is necessary for the prosecution to prove that the victim girl was minor i.e., below the age of 18 years as on the date of incident. The age of victim is also necessary

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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

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the next question arises as to whether the victim had consented for the said illegal acts committed by accused No.1, against the said victim. Therefore, age of the victim girl is most important to be determined in this case.

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Section 2(d) of Protection of Children from Sexual Offences Act, 2012 reads as under:

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“A child means any person below the age of

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18 years”.

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Under the provisions of POCSO Act, it is not stated how

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to determine age of the victim. Therefore, the age of the victim has to be determined on the basis of judicial

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precedents rendered by the Hon’ble Apex Court as well as by this Court. In the case of The State through Grameen Police

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Station, Gulbarga Vs. Sharanu @ Sharanappa @

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sharanabassappa³ rendered by the Co-ordinate Bench of this Court (wherein one of 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 Haryana⁴ and Mahadeo, Son of Kerba Maske Vs. State of Maharashtra and another⁵ held that to 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.

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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 others⁶ , wherein 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 the documents mentioned in Section 94(2) of Juvenile Justice Act 2015 shall

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3 2022 LiveLaw (Kar) 442

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4 (2013) 7 SCC 263

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5 (2013) 14 SCC 637

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6 (2022) 8 SCC 602

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

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In the judgments rendered by Hon’ble Apex Court as well as Co-ordinate Benches of this Court referred supra, it is held that age of a minor victim could be determined under the provisions of Rule 12(3) (a)(i)(ii) and (iii) of the Juvenile Justice (Care and Protection of Children), Rules 2007 (hereinafter for brevity referred to as “the J.J. Rules”) framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 or the amended Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter for brevity referred to as “the J.J. Act of 2015”). Section 94(2) of the J.J. Act of 2015 reads as under:

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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—

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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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(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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In this case, the prosecution has produced the date of birth certificate issued by the school authority at Ex.P22.

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Keeping in mind the above said law laid down by the Hon’ble Apex Court as well as Co-ordinate Bench of this Court, let us consider the evidence on record to prove age of the victim girl. PW-1 in her evidence has stated that she studied from 1^st Standard to 4^th Standard in Government Primary School at Kumbarakoppalu and her date of birth was 20^th June 1999. In her cross-examination, she denied the

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suggestion that her date of birth was not 20^th June 1999 and she was deposing falsely before the Court. She also denied the suggestion that she was more than 18 years old as on the date of alleged incident. The accused in the crossexamination of PW-1 questioned the minor girl about age of her elder and younger brothers etc., She has pleaded ignorance about date of birth of her elder and younger brother and elder sisters.

¶137

In the cross-examination, PW-1 has stated that she was working as electrician in Best Electronic factory and it was suggested to her that while appointing any person in a factory, the employee should be aged above 18 years and she admitted the same. On the basis of said evidence, the learned advocate for Respondent Nos.1and 2 has submitted that since 2013, she has been working in “The Best Electronic Factory”, therefore, her age must be more than 18 years as on that date; otherwise, she could not get appointment in the company. The said contention is not acceptable. Respondent No.1 asked general question to PW-1 stating that unless a person attained age of majority, he could not be employed in

¶138

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the factory and she admitted it. She had not stated anywhere that at the time of getting appointment in the said factory, she had furnished the date of birth certificate which shows that she was major or aged above 18 years. She has also not admitted that at the time of joining she was aged 18 years. Hence on the basis of answer given to general question, it cannot be held that she was major at the time of incident.

¶140

To rebut the said evidence, respondents have not placed on record any document, produced by the victim in the said factory, showing that she was aged above 18 years as on the date of her employment. Therefore, merely she was appointed in the factory, does not mean that she had attained majority as on the date of her appointment to the said factory. There is no such presumption, under Evidence Act. Therefore, the said cross-examination also do not help the respondents to show that as on the date of alleged incident, the victim was more than 18 years.

¶141

In the cross-examination of PW-1, it was

¶142

suggested to her that her parents were preparing for her marriage with one Basavaraju of Siddaiahanahundi, which

¶143

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was admitted by her. However, she volunteers that she herself refused to marry the said Basavaraju. Defence counsel questioned PW-1 in her cross-examination that unless a bride has completed age of 18 years, her marriage cannot be arranged and she admitted the same. But it does not help the respondents to prove that she had completed age of 18 years and hence, her parents tried to arrange her marriage. There is no such legal presumption. Therefore, the said evidence of PW-1 does not help to show that as on the date of the alleged incident, she had completed age of 18 years. In the cross-examination, she has also stated that since she was unaware about her date of birth, therefore, she did not inform her date of birth in the complaint given to police and thereafter, she ascertained her date of birth from her parents and she also gone through her marks-card of 4^th standard, wherein her date of birth was mentioned. On that basis, she has stated her date of birth to police.

¶145

An unsuccessful attempt was made by respondents to

¶146

show that the victim girl was aged more than 18 years as on the alleged date of incident. During the defence evidence, the

¶147

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respondents have not brought out any documents to show that the date of birth of victim girl was not 20.06.1999 and some other date. They had also not produced any document to rebut Ex.P22. The respondents also unable to show that after registering of this case or after missing of the victim girl, the school records were manipulated and date of birth of the victim was mentioned in the school register as 20.06.1999 to take revenge against respondents. Moreover, respondents have not disclosed source of information to them to contend that her date of birth mentioned in Ex.P-22 is incorrect and she was major as on the date of incident.

¶149

PW-2 is the father of the victim girl. In his evidence, he has stated that he does not remember date of birth of victim, however, she was aged about 15 years as on the date of lodging of the complaint to the police. In his cross-examination also, the respondents tried to ascertain the date of birth or age of his other children and he pleads ignorance about the same. He says that his wife admitted the victim girl to the school and she might have given a document to enter the date of birth of the victim and he does

¶150

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not know which document was furnished by her to the school authority. His evidence shows that age of the victim girl was 15 years as on the date of incident and he does not mention the actual date of birth of the victim girl.

¶152

PW-11 is the medical officer, who has clinically examined the victim on 29.10.2013, has stated about age of victim as 14 years on the basis of statement given by victim and her mother. Her evidence is not of much importance to prove the age of victim.

¶153

The prosecution has produced Ex.P22 i.e., certificate given by school authority containing date of birth of the victim. To prove it, prosecution had examined headmistress of the said school as PW-12. During her evidence, PW-12 had stated that as per the register, victim girl was admitted to the school for 1^st Standard and her date of birth mentioned in the register as 20.06.1999. Complainant police requested her to issue a certificate of date of birth of the victim girl and on verification of the concerned register, she had issued Ex.P22. PW-12 has also stated that her predecessor in office by name Smt.H.N.Geetamba had

¶154

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issued true copy of school register containing name and age of the victim girl as per Ex.P23. Ex.P22 shows that date of birth of the victim girl as 20.06.1999 and registration number as 170/06/07 and the victim girl was admitted to the 1^st Standard in the said primary school. Ex.P23 is one of the pages of the admission register. At serial number 170, name of the victim girl and name of her parents are mentioned and

¶156

date of birth of the victim girl is mentioned as 20.06.1999. She was admitted to the school during the year 2006-2007.

¶157

In the cross-examination of PW-12, she has stated that she has given the certificate on the basis of records maintained in the school register and she personally does not know as to whether any records were given to the school while admitting the victim girl in the school, containing her date of birth. It was suggested to PW-12 that the said register does not belong to the victim girl and PW-12 denied the said suggestion. The said suggestion is not acceptable since name of both the parents are mentioned in Ex.P23. In the entire cross-examination, nothing is brought out to show that Exs.P22 and P23 were created or concocted or fabricated

¶158

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after registering this offence. Ex.P22 is issued on 23.12.2013 and it was signed by PW-12. Ex.P23 is one of the pages of the permanent register maintained in the school authority in the normal course of the business of the said school. Under section 114 of Indian Evidence Act, the said certificate issued by PW-12 has presumptive value.

¶160

As already stated above, the accused did not rebut the said evidence to disprove that Exs.P22 and P23. Accused did not produce any document to show that date of birth mentioned in Ex.P22 is incorrect. Mere denial of Ex.P22 is not sufficient to discard it. Prior to the date of incident, said entry was made in school register. Hence, prosecution has proved that date of birth of victim was 20.06.1999 and she was minor at the time of incident.

¶161

As per Rule 12 of Juvenile Justice Rules, 2007, which is pari materia with Section 94 of Juvenile Justice Act 2015, the school certificate could be considered for determining age of victim. The date of birth of minor victim was 20.06.1999 and date of incident was 13.10.2013. It is clear from said fact

¶162

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that as on the date of incident, the victim girl was aged 14 years, 3 months and two days and she was a minor.

¶164

The learned Additional SPP has relied on the judgment of Hon’ble Apex Court in the case of Shah Nawaz Vs. State of Uttar Pradesh and another⁷ . In the above said case, prosecution relied on date of birth entered in the marks-sheet as well as school leaving certificate and evidence of mother of the victim girl and school authority who issued the said certificate. Considering the same, it is held by the Hon’ble Apex Court that entry relating to date of birth entered in the marks-sheet is one of the valid proof of evidence for determination of age of an accused person. The school leaving certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the high school marks-sheet produced by the appellant has duly been corroborated by school leaving certificate of the appellant of class 10^th Standard and has also been proved by the statement of the clerk of Nehru High School. The date of birth of the appellant has also been

¶165

7 (2011) 13 SCC 751

¶166

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recorded as 18.06.1989 in the school living certificate issued by the Principal of Nehru Preparatory School, as well as the said date of birth mentioned in the school register of the school at serial number 1382, which have been proved by the statement of Principal of that school recorded before the Board.

¶168

Similarly, in this case, the prosecution has relied on certificate issued by the school authority as well as copy of the relevant page of the register maintained in the school, to prove the date of birth of victim. The prosecution examined PW-12 to prove the said document and in addition to that, the victim herself has stated her date of birth and thereby, proved the date of birth of the victim which could be acceptable under Section 94(2) of Juvenile Justice Act 2015. The law laid down in the above said judgment is applicable to facts of the present case.

¶169

The law laid down in the case relied by learned Additional SPP in the case of Rishipal Singh Solanki (referred Supra) is also followed, while determining the age of the victim. As already discussed above, in this case, the

¶170

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prosecution relied on the school certificate Ex.P22 and Ex.P23 corroborated it by evidence of PW-1 and PW-12. The accused except denying the said statement of PW-1 and PW-12 have not made out a case that the entry in the register i.e., Ex.P23 was created or manipulated by the victim or complainant police. Under these circumstances, the respondent accused did not rebut the evidence of the prosecution to discard or disbelieve the date of birth mentioned in Exs.P22 and 23, of the victim.

¶172

The learned additional SPP has also relied on the judgment in the case of Ravinder Singh Gorkhi Vs. State of Uttar Pradesh⁸ . In the above referred case, Hon’ble Apex Court, considering the evidence on record, held that mere production of the school records are not sufficient if it creates a serious doubt about entry made in the said register. And in the said judgment, it has also given guidelines under which circumstances, a school record could be accepted as an evidence. In this case, the said guidelines were followed by the prosecution to prove Exs.P22 and 23. Nothing is brought out in the cross-examination of PW-12, to show that these

¶173

8 (2006) 5 SCC 584

¶174

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entries were created or concocted subsequent to the registration of the case to falsely implicate the accused in this case.

¶176

The learned advocate for respondent No.1 and 2 has relied on the judgment in the case of Alamelu and another v. State⁹ represented by Inspector of Police . The learned counsel for respondents submit that in the above said case, the Hon’ble Apex Court did not accept the school certificate and also not accepted the evidence of the medical officer, who has approximately given the age of the victim between 17 to 19 years, that created serious doubt in the case of prosecution regarding minority of the victim girl and he would further submit that in the present case also, prosecution is not able to prove age of the victim as minor and Exs.P22 and 23 were not proved. The person who entered the name of victim girl in the register was not examined and on the contrary, the person who was serving as on the date of issue of the said certificate was examined to prove the said fact and PW-12 in her cross-examination had admitted that she has no idea as to which of the document 9 AIR 2011 SC 715

¶177

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containing the date of birth of the victim girl was produced before the school at the time of admission of the victim girl to mention date of birth in the register. Under these circumstances, her evidence is not helpful to the case of prosecution. He has further submitted that facts of the present case are more or less similar to the facts of the case in the above referred case and considering on merits also, the

¶179

Hon’ble Apex Court found that the evidence of prosecution case are highly doubtful and acquitted the accused.

¶180

In the present case also, the evidence of prosecution witnesses are highly doubtful and even age of the victim girl is not proved, therefore, prayed for acquittal of the accused.

¶181

The learned Additional State Public Prosecutor would submit that provisions of J.J. Act of 2007 or J.J. Act of 2015 were not considered in that case. According to Section 12, Rule 12 of J.J. Act 2007 and Section 94 of J.J. Act 2015, the documents which could be considered to determine age of the victim/child in conflict with law are specifically mentioned in the provisions of Section 94 of J.J. Act 2015. According to the said provision, even the school certificate if it is proved

¶182

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can be accepted. The submission of learned Additional SPP is acceptable.

¶184

In this case, the prosecution by examining the victim as well as the school authority proved the said document.

¶185

Facts of the present case and above case are totally different. In the above referred case at paragraph No.40 onwards, it was discussed by Hon’ble Apex Court as to why the school certificate or leaving certificate was not accepted as reliable in that case. In that case, the author who issued the document was not examined before the Court. The said certificate was produced during trial and not along with charge-sheet. After closure of evidence, said document was marked after recalling of the victim girl.

¶186

The Headmaster of the school was not examined to prove the said document or correctness of the date of birth mentioned in the register. And there was no evidence on record to prove that any such register was maintained by school authority, to consider the said document as an admissible evidence. Considering all these lapses, facts and circumstances and interpreting Section 35 of Indian Evidence

¶187

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Act, the Hon’ble Apex Court held that the school leaving certificate was not proved by the prosecution. The evidence of PW-2 regarding her date of birth is not acceptable. However, the facts in the present case are different. In this case, the victim girl in her evidence has stated that her date of birth as 20.06.1999. Along with the charge-sheet, prosecution has produced Exs.P22 and 23. The prosecution examined PW-12 who had issued Ex.P22. True copy of relevant page of the register maintained by the school in accordance with its Rules has been placed on record and it was marked. Both PWs-1 and PW.12 were subjected to crossexamination by the accused and nothing is brought out to disbelieve or discard their evidence.

¶189

Therefore, in this case, the prosecution has proved that date of birth mentioned in Ex.P22 and 23 are true. The said document was not properly rebutted by the accused. Therefore, the law laid down in the above said judgment is not applicable to the facts of the present case.

¶190

It appears in that case prosecution did not bring to the notice of the Court about the provisions of Section 94 of JJ

¶191

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Act and hence the provisions of the J.J. Act 2007 or 2015 were also not considered in the above said case.

¶193

The learned Trial Judge in the impugned judgment has not at all discussed regarding Rule 12 of J.J. Act 2007 or

¶194

Section 94 of J.J. Act 2015. The learned trial judge completely ignored Exs.P22 and 23 and tried to determine the age of the victim girl on the basis of evidence given by PWs-1 and 2. The learned trial judge in the impugned judgment tried to determine the age on the basis of age of the elder brother and sister of the victim and also on the basis of age of the parents. The said discussions are not in accordance with law. Determination of age on the basis of guess work cannot be considered as an evidence. In the case of Alamelu (referred Supra) Hon’ble Apex Court has not accepted certificate issued by school containing date of birth, on the ground that certificate was not proved. In this case, prosecution proved Exs.P-22 and 23. Hence, determination of the age of the victim, on the basis of guesswork or approximation, is not tenable. It will be arbitrary. Therefore, an attempt to determine the age of the victim on guess work

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by learned Trial Judge in the impugned judgment is totally contrary to the law and said finding is perverse. Most part of the impugned judgment deals with the age of the victim girl. The learned trial judge has not properly appreciated evidence of PW-1 and PW-12 to determine age of the victim.

¶197

The learned trial judge in the impugned judgment relied on some of the judgments of Hon’ble Apex Court as well as the High Court. The facts stated in the said judgments which are quoted in the impugned judgment, are not at all applicable to the facts of the present case. The learned Trial Judge misread the said judgment to pass impugned judgment and committed a grave error which needs to be interfered by this court.

¶198

While appreciating the evidence of any witnesses either in a civil or criminal cases, the Court has to consider the facts and circumstances of each case; social, educational and economic backgrounds of the witnesses, who were examined by the prosecution. In this case, it appears victim as well as the parents of the victims were dwelling in the slum and therefore, the government had given them a house

¶199

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constructed by Slum Development Authority. Father of the victim girl i.e., PW-2 is an illiterate person. It appears similar is the case of mother of the victim. It is also worth to know that victim girl was aged about 14 years at the time of alleged incident and according to evidence of PW-2, she had studied upto 6^th Standard and she was not well educated. She was hardly aged about 17 to 18 years when her evidence was recorded in the Court. When such a victim of a sexual offence has appeared before the Court to give evidence; she might have given some evidence unknowingly and out of hesitation which may be favourable to the accused. The Presiding Officer of the concerned Court must keep in mind about all these backgrounds while appreciating the evidence and thereafter, carefully appreciate the same to arrive to certain conclusions. However, in this case, the learned trial judge has not considered all these facts and assigned the reason as if the victim girl was well educated, having worldly knowledge as well as legal knowledge, and evidence given by her was completely disbelieved only on the ground that she had given inconsistent evidence. The said reasons indicate that there is

¶201

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failure of justice by the impugned judgment. Therefore, it needs to be interfered by this Court.

¶203

For the above said discussions, the prosecution established that date of birth of the victim was 20.06.1999 and as on the alleged date of incident i.e., 13.10.2013, she was aged about 14 years and 4 months and she was a minor and she comes under the definition of “child” as per the provisions of POCSO Act 2012.

¶204

In this case, PWs-1, 2, 11, 12, and 15 are material witnesses. Other witnesses, who are related to the accused, were turned hostile and not supported the case of prosecution. Let us consider evidence of the prosecution about sexual offence alleged to be committed by accused No.1.

¶205

PW-1 is victim and sole eye-witness to the incident. It is evidence of PW-1 that on 13.10.2013 at about 6.30 p.m., she went to fetch drinking water from public tap situated nearby her house. At that time, accused No.1 came to the said place in a motorcycle and he told her to come along with him in his motorcycle and he also threatened her

¶206

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that if she does not come with him, then he would commit suicide. Due to the said threat, she was scared and went along with him on his motorcycle. Accused No.1 took her initially to Gaddige village to his aunt's house. She stayed in the said house along with accused No.1 and also members of family of aunt of accused No.1. Accused No.2 telephoned to accused No.1 and informed him that parents of victim had lodged the complaint to police and thereafter, accused No.1 took her to house of his another elder aunt by name Boramma, situated in Kittooru. The said Boramma had two daughters and she was residing along with the said two daughters. In the house of Boramma also, she stayed along with accused No.1 for about two days. During that time also, accused No.2 informed accused No.1 about lodging of the complaint by her parents. Hence, on the next day, accused No.1 took her to Mysuru and both of them stayed in the elder sister’s house of accused No.1, situated at Manjunathapuram. Both of them stayed in the said house for one night. On the next day, accused No.1 and his elder sister both took her to Hullahalli village to the aunt's house of accused No.1 and there, they stayed for three days. Thereafter, accused No.1

¶208

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took her to her aunt's house situated in Kittooru and one

¶210

night she stayed in the said house along with accused No.1. On that night, mother of accused No.1 telephoned to accused No.1 and informed that if they do not return to Mysuru, then, the police would detain herself and her husband in the prison and forced accused No.1 to return to Mysuru. And on the next day morning, second accused came to Kittooru and informed accused No.1 that her parents lodged the complaint and therefore, asked accused No.1 to come to Mysuru along with victim/PW-1. Accused No.2 had also taken her signature on blank white paper and told her that if she wants to continue relationship with Girish, then she has to follow his directions. Thereafter, accused No.2 left Kittooru to Mysuru.

¶211

It is further evidence of PW-1 that on the next day, accused No.1 took her to his sister's house situated at Manjunathapuram and accused No.2 once again informed accused No.1 not to stay in Mysuru anymore. Therefore, accused No.1 again took her to Gaddige village to his aunt's house and one night, they stayed in the said house. On that day accused No.2 once again telephoned to accused No.1 and

¶212

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asked accused No.1 to come back to Mysuru and visit the police station. On the same day, accused No.1 brought her to Mysuru and took her to Cheluvmba park and in the Cheluvamba park accused Nos.3 to 7 had gathered and accused No.1 enquired with said accused Nos.3 to 7. They asked accused No.1 and herself as to what happened. Accused No.1 told accused Nos.3 to 7 that the victim came along with him leaving her house. Thereafter, accused No.4 told her that if she follows as per his direction, then she may get Girish i.e., accused No.1.

¶214

PW-1 in her evidence has repeatedly stated that in all the places wherever accused No.1 took her, during the night, he had raped her against her wish. Inspite of her repeated refusal, accused No.1 had forceful sexual intercourse with her. He also threatened her that “if she discloses this fact to others, then, she has to face the consequences.” During the night whenever he was sexually assaulting her, the members of the family of the said houses were not in the said place or not in the room wherein she and accused No.1 were sleeping.

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PW-1 in her further evidence has stated that

¶217

accused No.1 along with other five persons took her to house of Smt.Sudhamani i.e., PW-13 and the said Sudhamani took her to the office of Police Commissioner at Mysuru. Since accused Nos.4 to 7 threatened her and also told her that “unless she states before the Police as directed by them, she would not live with Girish. Due to the said threat, she told before the Commissioner of Police that nobody had taken her and she voluntarily went to and stayed in the railway station from 13.10.2013 till that day and she left her house because her parents intended to arrange her marriage against her wish.” Again, she was taken to women police station in Mysuru and there also she gave statement as directed by accused Nos.4 to 7 and PW-13. She was again taken to Ontikoppalu police station wherein once again she repeated whatever she had stated before Commissioner of Police office as directed by PW-13. In Ontikoppal police station police received her statement in writing and obtained her signature, thereafter, sent her along with her parents.

¶218

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It is further evidence PW-1 that three to four days after returning to her parents house, she disclosed that accused No.1 had repeated sexual intercourse with her against her wish. She felt that accused No.1 had cheated her. Therefore, she disclosed all these facts before her parents. Thereafter, her parents took her to Ontikoppalu police station and she lodged the complaint as per Ex.P1. Thereafter, police came to spot of incident and drew mahazar as per Ex.P2 and obtained her signature. She took them to Cheluvamba park and there also, drawn mahazar as per Ex.P3 and obtained her signature. She was taken to K.R.Hospital at Mysuru, wherein lady medical officer clinically examined her and obtained dresses worn by her. She identified accused Nos.1, 2 and 4 to 7. She has also stated about recording of her statement by the concerned Court.

¶220

In her marathon cross-examination by the accused, she

¶221

once again elaborated her evidence. Most of her crossexamination pertains to the fact that she alleged to be with accused No.1 for about ten days; travelled and stayed in different places and she did not inform anybody about alleged

¶222

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acts of accused No.1, that indicates she had consented for alleged sexual acts of accused No.1. Prosecution proved that PW-1 is minor as on the date of incident. Hence, question of consensual sex do not arise. Said cross-examination would not help defence of accused.

¶224

PW-1 denied suggestion of accused that she was loving accused No.1 since beginning. But, accused No.1 was not interested to love her since both of them belong to different caste. PW-1 also denied suggestion that since she fell in love with accused No.1, her parents and members of her family were blaming her.” She also denied the suggestion that “since Siddaiahnahundi Basavaraj refused to marry her and hence her parents insisted accused No.1 to marry her; and accused Nos.4 to 7 along with accused No.1 advised her parents that they were belonging to different community therefore, accused no.1 could not marry her.” It was also suggested to her that “since accused No.1 refused to marry her, therefore, she along with her parents filed a false complaint against accused and she denied the said suggestion. The said defence of accused is not probable. If

¶225

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Basavaraj refused to marry PW-1, there was no need to PW-2 and CW-3 to insist accused No.1 to marry her unless PW-1 and accused No.1 had any love affairs among them.

¶227

It appears when Basavaraj came to know that PW-1 with whom he proposed to marry, had love affair with accused No.1 and he eloped with her and had sexual intercourse with her, he refused to marry her. That cannot be a ground to falsely implicate accused Nos.1 to 7 in the incident.

¶228

In the entire cross-examination of PW-1, nothing is brought out to disbelieve or discard her evidence. It is pertinent to note that PW-1 in her evidence has stated about individual places wherein accused No.1 had taken her and had sexual intercourse with her against her wish. The said facts were not specifically denied by the accused in her crossexamination, except suggesting that he had not kidnapped her and forcefully taken her to the different places. There was no reason for PW-1 to falsely implicate the accused. It is not in dispute that the persons wherever accused No.1 stayed with the victim girl are related to accused No.1; The said

¶229

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persons were examined as witnesses. They have turned hostile to the case of prosecution but the relationship of the said person with accused No.1 is not disputed or denied. PW1 withstood in her cross-examination and nothing is brought out to disbelieve her evidence.

¶231

PW-1 is victim of the incident. According to her evidence from 13.10.2013 till 24.10.2013, accused No.1 had sexual intercourse with her against her wish, during the night time. From her evidence, it appears there was no possibility of having any other witnesses, who have witnessed the incident of rape of PW-1, by accused No.1. Under these circumstances, evidence of PW-1, has to be weighed carefully. In her cross-examination, nothing was brought out to prove enmity between her family with accused to foist a false case on the accused. If there were admitted enmity between accused and PW-2, then to take revenge against accused, chances of falsely implication of accused is possible. However, looking to the innocence of victim girl as well as her father, it is difficult to believe the defence of the accused that

¶232

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with an intention to force accused No.1 to marry PW-1, they

¶234

filed false case against accused is not probable.

¶235

PW-1 has stated details of names of relatives of accused No.1 and number of members of the said family where he had taken her and had sex with her. These facts also inspire confidence about her evidence. The evidence of PW-1 proves that he was kidnapped from lawful custody of her guardian, without his knowledge and consent with an intention to have sexual enjoyment with the said minor girl. PW-1 is main witness in this case. She has fully supported the case of prosecution to prove her kidnap and rape on her.

¶236

PW-2 is the father of victim girl. In his evidence, he has stated that about a year and nine months prior to date of his evidence, on the day of Ayudha Puja festival (one of the days of Dasara festival) he along with his wife went to Belavadi village and around 6.30 p.m., they returned home. By that time, victim girl was missing; he and his wife searched for victim with her friends and relatives, however, they could not find her and hence after ten days, he lodged the missing complaint of PW-1 to the police station as per

¶237

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Ex.P4. Two days after lodging the complaint, police informed him about searching of the victim girl; accordingly he and his wife went to woman police station Mysuru thereafter they went to OntiKoppalu police station i.e., V.V.Puram police station and they found victim girl in the police station. On enquiry with her, she told that on that day she went to fetch the water for drinking and at that time, accused No.1 Girish took her in a motorcycle and they stayed in two three places along with accused No.1 and in all the three said places, he raped her and had a sexual intercourse with her, against her wish.

¶239

In the cross-examination he has elaborated his evidence. Nothing is brought out to disprove his evidence about material facts i.e., missing of PW-1 from 13.10.2013 to 24.10.2013 and tracing out her on 24.10.2013. Accused did not get any admission in their favours.

¶240

PW-2 is the father of PW-1 and not an eyewitness to the incident. In his evidence he has stated that his daughter/PW-1 went to fetch water from public tap on the evening of 13.10.2013 and she did not return till late night.

¶241

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He and members of his family searched her and enquired with known persons. Thereafter, on 24.10.2013, he lodged missing complaint in the police station. Police traced her on 24.10.2013 and he and CW-3 brought her home. Three to Four days after PW-1 disclosed that accused No.1 had kidnapped her and had forceful sexual intercourse with her inspite of her refusal. Thereafter, he and CW-3 took her to police station and lodged complaint. He also requested accused No.1 and his parents to arrange marriage of accused No.1 with PW-1 but they refused. He corroborated evidence of PW-1.

¶243

It is not disputed in his cross-examination that victim girl was missing from 13.10.2013 after 6.30 p.m. till she was traced on 24.10.2013 in the police station at V.V.Puram. Even it was suggested to PW-2 in his cross-examination that “after PW-1 eloped along with accused No.1, the said Basavaraju who proposed to marry her, refused to marry her and the marriage proposal was broken down. Therefore, he was forcing accused No.1 to marry her. When accused No.1 refused to marry PW-1, he filed false case against accused.” Said suggestion was denied by PW-2 but he admits about

¶244

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break down of marriage proposal of S.Basavaraju. In further cross-examination he elaborated his evidence. Nothing was brought out to discard his evidence, in his cross-examination. It is not brought out in the cross-examination of PW-2 that with his consent and knowledge, accused No.1 had taken PW-1. His evidence prove that without his knowledge and consent accused kidnapped PW-1, who was proved to be minor. The evidence of PW-1 proves that she was subjected to repeated sexual intercourse by the accused No.1. It proves that accused No.1 with intention to have sexual enjoyment with PW-1, kidnapped her from lawful custody of PW-2. Hence, evidence of PW-2 assists prosecution to prove Section 366 of IPC.

¶246

The next material witness in this case is PW-11 Dr.Arpitha S.Ballu who had clinically examined victim PW-1 on 29.10.2013 at about 4.15 p.m. She has stated that after clinically examining PW-1, she found that hymen of PW-1 was not intact and she had abrasion injuries on left wrist. PW-1 has given history of sexual intercourse by the accused No.1 with her, which is noted in Ex.P21. She has also stated that

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on clinically testing of victim girl/PW-1, she was of the opinion that “she was habituated to sexual intercourse”. However, there is no evidence available to show recent sexual act with victim girl and she has given a report in this regard as per Ex.P20.

¶249

In Ex.P20, it is mentioned that depending upon the history and clinical examination, she was of the opinion that “victim was used to an act like that of sexual intercourse and could not collect any evidence of recent sexual intercourse.” In Ex.P21, which is medico legal case register, the information given by PW-1 was mentioned by PW-11. In Ex.P21, PW-1 has stated before PW-11 about the incident and the alleged sexual assault by accused No.1 on her at different places, in the relative’s houses of accused No.1. The said statement corroborates with the evidence of PW-1, which she had stated in examination-in-chief. From the evidence of PW11 as well as Exs.P20 and 21, the evidence of PW-11 about sexual assault on her by accused No.1 is believable.

¶250

In the cross-examination of PW-11, she admits that tear of hymen can be seen in the girls who are used to

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masturbating as well as the sports persons. It is not the case of accused that PW-1 was a sports person and it was not brought out in the cross-examination of PW-1 that she had sex with others or she had habituated for masturbation; When no such case is made out in the cross-examination of PW-1, then evidence of PW-1 has to be accepted. PW-1 has stated that from 13.10.2015 till 24.10.2015 accused sexually assaulted her against her wish. Due to the same, PW-11 must have observed that PW-1 was habituated to sexual acts. According to PW-1, accused had forceful sexual intercourse with her, on all the above said ten days, in view of the said reasons, her hymen might be not intact. PW-1 lodged complaint 3 to 4 days after she came home and returned to the custody of PW-2. Thereafter she was taken to PW-11 for medical check up. Hence, PW-11 could not find any evidence of recent sexual intercourse with PW-1. That will not affect the case of prosecution. Evidence of recent sexual intercourse means with in short period of few hours prior to medical examination of victim girl. Since PW-1 was not examined by PW-11 within few hours after commission of rape, PW-11 did not find evidence of the same. The evidence of PWs-1, 2 and

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11 are consistent, corroborative and reliable. It is proved by the prosecution that victim girl was minor as on the date of incident and accused No.1 kidnapped her sexual enjoyment with her. It is also evidence of PW-2 that without his knowledge, permission or consent, the minor victim/PW-1 was kidnapped. It is also evidence of PW-1 that inspite of her refusal, accused No.1 had forceful sexual intercourse with her from 13.10.2013 to 24.10.2013.

¶255

PW-14 is the Assistant Sub-Inspector of V.V.Puram Police Station and he was the Station House Officer of the Police Station. On 23.10.2013, on the complaint (Ex.P4) of PW-2, he has registered case in Cr.No.126 of 2013. He has further stated that on 24.10.2013, the victim girl was brought from women police station of Mysuru along with her parents. He enquired the victim girl, thereafter returned her to the custody of her parents.

¶256

PW-14 in his cross-examination by the accused has stated that he enquired with neighbours and residents of nearby places regarding missing of PW-1. However, he did not record their statements. His evidence corroborates the

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evidence of PW-2, regarding missing of PW-1 from lawful custody of PW-2 and she was returned to custody of PW-2 on 24.10.2013. Similarly registering of missing complaint as per Ex.P4. These facts were not denied by the accused in the cross-examination of PW-14.

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PW-15 is investigating officer and police inspector served in V.V.Puram police station from 16.10.2013 to 12.05.2015. In his evidence, he has stated in detail about investigation done by him in this case. He has stated that he received complaint from victim girl on 28.10.2013; on that basis registered the FIR in Crime No.129 of 2013, drawn the mahazars in respective places; sending of victim girl to the medical officer of Cheluvamba Hospital. Thereafter, arrest of accused No.1 and recording of his confession and visiting of places wherein accused No.1 had committed rape on the victim girl and drawing of the mahazar in the said places; recording of the statement of the witnesses, seizure of the motorcycle on the confession of the accused; seizure of the clothes of victim as well as accused No.1; referring of accused No.1 to Government Hospital for clinical examination

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to ascertain potentiality of accused No.1 to commit offence of rape. He has also identified the said documents i.e., mahazar drawn by him in the presence of witnesses, medical report, FSL report etc. He was also stated that against the accused Nos.1 to 7 he submitted the charge-sheet, for the alleged offences.

¶262

In his cross-examination, he has elaborated his evidence. He has stated that he has not recorded statement of brothers and sisters of PW-1 and he has also not recorded the statement of neighbours or the public to show that victim was kidnapped by PW-1. He has not obtained signature of neighbours of the places wherein he had drawn mahazars of the places wherein accused No.1 had committed an offence of rape on victim girl. He denied the suggestions of the accused that he had not investigated the case as stated by him and without application of mind, he filed the charge-sheet. He also denied that accused are innocent and they were falsely implicated in this case. However, in the entire crossexamination, nothing is brought out to show that he had not investigated the case properly or due to lapses in the investigation, the accused are entitled for acquittal. It might

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be true that he could have collected more evidence of neighbours regarding missing of PW-1 on 13.10.2013 and he should have collected statement of witnesses, who have seen accused No.1 kidnapping the victim girl. That could have strengthened the case of prosecution. However, nonexamining such witnesses are not fatal to the case of the prosecution. The evidence of PW-15 corroborates evidence of PWs-1, 2 and 11.

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PW-3 is related to accused No.1. She has turned hostile and even she pleads ignorance about her relationship with accused No.1. She pleads ignorance that accused No.1 came to her house along with PW-1. She has stated that on that day she was not at home and when she came back in the evening after grazing the cattle, she came to know from members of her family that accused No.1 came along with the victim but members of her family did not allow them to stay in the house. She admits that accused No.1 and PW-1 came to her house as per information furnished to her by members of her family. It corroborated evidence of PW-1 that she was kidnapped and taken to her house.

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PW-6 is witness to Exs.P2, P8 and 9 i.e., mahazars.

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He turned hostile to file the case of prosecution. PWs-3 to 5, 7 and 9 are close relatives and friends of accused No.1. As per case of prosecution, accused No.1 along with PW-1 stayed in the said houses and had sex with PW-1 against her wish. Both the witness have turned hostile and not supported the case of prosecution. It may be too much to expect that they would give evidence against accused No.1. Their nonsupportive evidence will not damage case of prosecution. He has stated that he signed all the documents in the police station. He was treated as a hostile witness and crossexamined by the learned public prosecutor. In his crossexamination, he denied the suggestions that said mahazars were drawn in respective places and he signed at the said places.

¶269

PW-15 is the author of the said documents. In his evidence, he has stated that during investigation, he had drawn Exs.P2, P8 and P9 in the presence of respective witnesses. PW-6 has not disputed his signature on the said document and according to him he signed the said documents

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in the police station. It is not his evidence that due to fear of police, he signed on the said document in the police station without going through the contents of the same. In the crossexamination of PW-15, nothing brought out to show that the said documents were prepared at Police Station. From the contents of said mahazars, it could be accepted that they were drawn on respective places. Therefore, merely PW-6 has not supported the case of prosecution, does not mean that prosecution failed to prove drawing of Exs.P2, P8 and P9 in the respective places. It only indicates that PW-6 has scanty regards to the truth.

¶272

Evidence of PW-1 supports that they are the places wherein accused had raped her. Her evidence corroborates evidence of PW-15 regarding place of incident. Nonsupportive evidence of PW-6 will not damage case of prosecution.

¶273

PW-9/Yogesha is owner of the motorcycle, which was used to kidnap the victim girl/PW-1. During the evidence, PW-9 has turned hostile to the case of prosecution. The learned public prosecutor treated him as a hostile witness and

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cross-examined him. During the cross-examination, he admits that accused No.1 was his known person and he had given motorcycle to accused No.1. However, he denied other suggestions and also seizure of the said vehicle by the police by drawing a mahazar. According to him, police came to his house and told that this vehicle was used for kidnapping a victim girl. Therefore they have taken the said vehicle. In the cross-examination of PW-1, use of the said motorcycle was not disputed by accused No.1. It was a mode of transport to kidnap PW-1 from custody of her parents to go to Gaddige village, wherein they stayed for two to three days. The said evidence of PW-1 is reliable and acceptable. Therefore, even though PW-9 has turned hostile it does not damage or affect the merits of the case.

¶276

PW-10/Aruna.S. is witness to Exs.P12, P17 to 19. During his evidence, he has stated that he signed all the said mahazars in police station. He has not supported the case of prosecution. The learned Public Prosecutor treated him as hostile witness and cross-examined him. In his crossexamination, he denied suggestions of learned Public

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Prosecutor about drawing and signing of the mahazars in respective places. PW-1 in her evidence has stated about commission of rape on her by accused No.1 in different places and Exs.P.17 to 19 are mahazars of the said places. PW-15 has drawn said mahazars. In his evidence, he has stated in detail about drawing of same in the presence of witnesses. Nothing was brought out in his cross-examination to discard his evidence. There was no need for him to draw said mahazars in the police station. The said mahazars are not so important documents which could affect the merits of the case. Therefore, PW-10 did not support the case of prosecution, is in no way damages the credibility of evidence of PWs-1, 2, 11 and 12.

¶279

PW-13/Smt.Sudhamani is said to be social worker and according to her evidence, about two to three years back, she went to Mysuru railway station to see-off her mother. While returning from the railway station, she found PW-1 crying in the railway station. On enquiry, she told her that her parents were forcefully arranging her marriage, therefore, she left her house and staying in the railway

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station for about ten days. PW-13 enquired with PW-1 to show her house so that she could go along with her and convince her parents. However, she told PW-13 that if she goes home, then her parents would ill-treat her and asked PW-13 to take her to office of Police Commissioner. Accordingly, she took PW-1 to office of Police Commissioner wherein the Commissioner of Police referred them to the jurisdictional police station. Accordingly, she took PW-1 to women police station at Mysuru. The women police secured presence of parents of PW-1 and PW-2 told them that he lodged a missing complaint at V.V.Puram Police Station. Thereafter, the SHO of women police station referred victim PW-1 to V.V.Puram police station, Mysuru. From V.V.Puram police station, she went back home.

¶282

According to case of prosecution, at the instance of accused Nos.4 to 7, she had taken PW-1 to office of Police Commissioner and accused Nos.4 to 7 as well as PW-13 informed PW-1 and threatened her that if she want to have relationship with accused No.1 then she has to say before the concerned police as dictated by them. Accordingly, PW-1 told

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before the women police station, Mysuru and V.V.Puram police Station, Mysuru that she voluntarily went to railway station and stayed in the railway station for ten days. The said facts were not deposed by her in the evidence. Therefore, the learned public prosecutor with the permission of the Court treated her as a hostile witness and crossexamined her. In the cross-examination, she denied suggestions of learned public prosecutor and also denied that she gave statement before police as per Exs.P24 and Ex.P24(a).

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PW-1 in her evidence has stated that accused Nos.2 to 7 and PW-13 threatened her to say before the police as per their dictation and accordingly, she has stated before the concerned police station that she voluntarily went to railway station leaving her home since her parents insisted her to marry a person against her wish and she was not kidnapped by any person. It is not brought out in the crossexamination of PW-1 as to why she has to give false evidence against PW-13 before the Court. PW-1 in Ex.P-1 in the statement recorded by the Magistrate and statement

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recorded by police and on oath before Court has stated her kidnap by accused No.1 and thereafter, her sexual abuse by accused No.1. The said evidence is reliable. Hence, it appears that whatever evidence given by PW-13 is not trustworthy. It appears as per threat of accused, PW-1 has not stated true facts before police, when she went along with PW-13. Thereafter, when PW-1 was given to custody of her parents, she came out of fear and told to police true facts. Similarly, deposed true facts before Court. In view of the same, there are contradictory statement of PW-1 before police when she was in the company of PW-13.

¶288

From the above evidence especially of PWs.1, 2, 11, 14 and 15 prosecution proved that PW-1 was minor and aged about 14 years on the date of incident and she was in care and custody of PW-2. Without knowledge and permission of PW-2, PW-1 was taken away by accused No.1 by creating fear in her mind that if she does not go with him then he would commit suicide. Accused No.1 had repeated sexual intercourse with PW-1 against her wish, in different places. It proves that accused No.1 kidnapped PW-1 with an intention to have sexual enjoyment with her. It is also proved by the

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evidence of PWs-1 and 11 that accused No.1 had repeated sexual intercourse with PW-1 against her wish. Since she was minor, question of her consent does not arise. From the above said evidence, prosecution proved beyond all reasonable doubt that accused has not committed offence punishable under Sections 366 and 376 of IPC and Section 6 of POCSO Act.

¶291

By the evidence of material witnesses, prosecution has proved that accused No.1 has committed an offence of aggravated penetrative sexual assault on the victim girl and thereby, committed an offence punishable under Section 6 of POCSO Act 2012 as well as section 376(n) of Indian penal code.

¶292

As per the evidence of PWs-1 and 2, accused No.1 kidnapped victim girl – PW-1 without the consent of her lawful guardian and with an intention to have sexual intercourse with her, thereby, the prosecution has also proved that accused No.1 had committed an offence punishable under Section 366 of IPC.

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The learned Sessions Judge in the impugned judgment has not considered all these points. The learned Sessions Judge discarded the evidence of PWs-1, 2, 11 and 12, mainly on the ground that from the evidence of PWs-1 and 2, it could be borne out that PW-1 was major as on the date of incident. The learned Sessions Judge has completely ignored Exs.P22 and P23 and on the assumptions and presumptions, determined the age of victim as 19 years. On this sole ground, the learned Sessions Judge has acquitted accused No.1.

¶295

The learned Sessions Judge in the impugned judgment has observed that PW-1 lodged the complaint as per Ex.P1, only after deliberations and discussions with others. PW-1 in her evidence has stated that accused No.1 had committed rape on her repeatedly from 13.10.2013 to 24.10.2013 and when accused No.1 came to know that a criminal case was registered for missing of victim and police were bent upon to search the persons, who were responsible for her missing, that time accused No.1 brought PW-1 to Mysuru. If really PW-1 had intention to file a false case against the accused, then nothing prevented her to report the said fact to the

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police on the next day of kidnapping her from the lawful custody of her parents. Moreover, her parents were illiterates and PW-2 was working as a mason and CW-3 was a housewife. Under such circumstances, with whom she had to discuss and deliberate and file a false complaint against the accused? The said reasoning of the Sessions Judge is highly improbable.

¶298

The learned Sessions Judge has accepted the defence of the accused that since PWs-2 and CW-3 forced accused No.1 to marry P.W.1., and when he refused to marry PW-1, they filed a false complaint against accused No.1 and others. The said reasons are also improbable. Accused No.1 denies that he kidnapped PW-1. He also denied that he had love affairs with PW-1. Accused No.1 was not relative or close friend of PW-1. Under such circumstances, why PW-2 and CW-3 insist accused No.1 and his parents to arrange for marriage of accused No.1 with PW-1? From the crossexamination of PWs-1 and 2, it could be gathered that after accused No.1 eloped with PW-1, the said S.Basavaraju refused to marry PW-1. Hence PW-2 and CW-3 might be

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started insisting accused No.1 to marry PW-1 since he eloped with her and had sexual intercourse with her. In the absence

¶301

of involvement of accused No.1 in the incident, the suggestions of the accused were incomplete. Acceptance of said suggestions as defence of the accused by the Trial Judge and holding that it cannot be ruled out, is also highly improbable and not acceptable in accordance with the law. Therefore, the findings of the learned Sessions Judge in this regard is perverse.

¶302

The learned Sessions Judge while appreciating evidence of PWs-1 and 2 has not considered their standard of living, standard of education, social and economical background and also impact of filing such false complaint on the future of victim girl. It is not in dispute that PW-2 is a mason and working as a coolie. His wife is a home-maker, both of them were illiterates. PW-1 had studied up to 6^th Standard and she did not continue her education. It is not the case of prosecution or defence of the accused that other brothers and sisters of PW-1 were highly qualified or wellversed in the law. If she files a false complaint against the

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accused, at the most, the accused could be convicted, if they were able to prove their case. On the contrary, what would be the fate of victim girl who was aged about 14 years at the time of alleged incident? These factors were not at all considered by the learned Sessions Judge. The reasons assigned by the learned Sessions Judge for discarding the evidence of PWs-1 and 2 is not on the strength of proper analysis of evidence before it. Therefore, grave injustice is caused to the victim girl and hence, interference in the said findings is very much necessary.

¶305

As submitted by the learned advocate for respondent Nos.4 to 7, there is no sufficient evidence on record to hold that accused No.2 had been contacting accused No.1 and informing about the incident and there is also no evidence on record to show that accused No.2 had knowledge that PW-1 was minor at the time of alleged incident. From the evidence of PW-1, it appears that whatever conversation held between accused Nos.1 and 2 over telephone, was informed to her by accused No.1. PW-15 in his evidence has stated that he had not collected CDRs of

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mobile phone numbers of accused Nos.1 and 2. Therefore, the material evidence which could be collected by PW-15 to show that accused Nos.1 and 2 had contacted each other on the relevant dates, is not proved. Hence, whatever evidence given by PW-1 is hear-say evidence i.e., might be on the basis of the information given to her by accused No.1. Therefore, prosecution has failed to prove and establish that accused No.2 had knowledge that PW-1 was minor and inspite of knowledge of offence committed by accused No.1 failed to inform to police of said facts and the accused No.1 has committed an offence punishable under Section 21 of POCSO Act.

¶308

According to evidence of PW-1, accused Nos.4 to 7 met her in Cheluvamba Park and told her that if she wanted to continue her relationship with accused No.1 then she has to give statement before the concerned police as dictated by them and PW-13. During her evidence, PW-1 has not at all stated that they had criminally intimidated her and threatened her that if she does not inform the police as stated by them, then she has to face severe consequences.

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There are no legal evidence on record to show that accused Nos.4 to 7 had knowledge that PW-1 was minor and the illegal acts committed by accused No.1 against PW-1 falls under the provisions of POCSO Act of 2012. Due to the lack of evidence, it is not proper to hold that accused Nos.4 to 7 had committed an offence punishable under Section 506 read with Section 34 of IPC along with accused Nos.1 and 2. Therefore, acquittal of accused Nos.2 and 4 to 7 by the Sessions Court is proper and correct and it does not call for any interference by this Court.

¶311

Normally, the Appellate Court shall not interfere in the findings of the Trial Court. If two views are possible, then the Appellate Court should not interfere in the findings of the Trial Court. However, the Appellate Court has jurisdiction to interfere in the finding of the Trial Court only if the findings of the Trial Court is perverse, illegal, arbitrary, leading to miscarriage of justice. In this case, as already discussed in above paragraphs, the learned Trial Judge has not considered the reliable evidence on record. Without reasons, which is acceptable under Section 94 of the J.J. Act of 2015, tried to

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determine age of the victim girl on the basis of guess work. Thereby, the learned Sessions Judge acted contrary to the law. The main object of the POCSO Act 2012 is to protect the interest of minor children, who were subjected to sexual abuses. The findings of learned Sessions Judge is nothing but defeating the main purpose of POCSO Act of 2012. The learned Sessions Judge has not properly appreciated evidence of PWs-1, 2, 11, 12 and 15 and held that their evidence is not believable, which is contrary to the provisions of law. Under Section 29 of the POCSO Act, there is presumption in favour of prosecution and Court shall presume that accused has committed such offence, unless it is properly rebutted by the accused.

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In this case, accused No.1 did not led any rebuttal evidence. The defence of the accused No.1 in the crossexamination of witness to the prosecution, is not probable. In the case of Phool Singh (stated supra), it is held by the Hon’ble Apex Court that in the case of rape, conviction of accused on the sole testimony of victim prosecutrix with or without corroboration is acceptable. In this case also, PW-1 in her evidence has elaborated the acts committed by accused

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No.1 and in her cross-examination nothing was brought out to disbelieve or discard her evidence. The accused No.1 had committed repeated sexual assault on the victim girl who was aged about 14 years at the time of the incident. The accused No.1 failed to establish that PWs-1 and 2 had any enmity against accused to file false case. Evidence of PW-1 is reliable and inspire confidence in the mind of the Court. Therefore, law laid down in the above said judgment is aptly applicable to the facts of the present case.

¶317

Much argued by the learned advocate for respondent No.1 that there is a delay in lodging the complaint and the said delay is not explained. The said submission is not acceptable. According to PW-2, he came to know that accused No.1 had kidnapped PW-1 only after 24.10.2013 when the V.V.Puram Police called him after they secured presence of the victim girl. Till then, he had no idea. PW-2 is an illiterate mason and appears to be a rustic villager. He had no knowledge about consequences of delay in lodging the complaint. PW-2 had no idea about the illegal acts of accused till PW-1 was traced out and she disclosed acts committed by

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the accused. Thereafter PW-2 has taken PW-1 to police station and PW-1 lodged complaint. PW-1 was in the custody of accused No.1 from 13.10.2013 till she returned home. Accused were not able to show that PW-2 had any enmity against accused. In view of these reasons, there is no delay in filing complaint and it is also not fatal to the case of prosecution.

¶320

The learned advocate for respondent Nos.1 and 2 has vehemently contended that in Ex.P1, PW-1 has not stated about role of the accused and also their acts. In Ex.P1, PW-1 has stated about acts committed by accused No.1 and also threat given to her by accused Nos.2 to 7 in Cheluvamba park. However, detailed particulars were not mentioned. But in her subsequent statement recorded by the police, she has stated all these facts in detail. The learned Additional Public Prosecutor has relied the judgment in the case of Kirendar Sarkar and others Vs. State of Assam¹⁰ wherein it is held by the Hon’ble Apex Court that:

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“FIR is not a substantive evidence and cannot be used for contradicting testimony of the

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10 (2009) 12 SCC 342

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eyewitnesses except that it may be used for the purpose of contradicting maker of the said report. Hence, discrepancies or omissions in the FIR does not affect the merits of the case”.

¶325

The principle of law laid down in the above said judgment is applicable to the facts of the present case. It answers the submission of learned advocate for respondents. The Hon’ble Apex Court time and again held that in appropriate case wherein injustice or miscarriage of justice is caused to the victims or the findings of the Trial Judges against the provision of law and it is perverse, the Appellate Court shall interfere and reverse the said findings. In the following cases Hon’ble Apex Court laid down the law under what circumstances Appellate Court can reverse judgment of the Trial Court.

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In the case of Guru Dutt Pathak v. State of Uttar Pradesh¹¹ , the Hon’ble Apex Court has held that:

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“Each and every ground on which trial court acquitted accused was elaborately dealt with by High Court On reappreciation of entire evidence on record, High Court specifically concluded that

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11 (2021) 6 SCC 116

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findings recorded by trial court were perverse Therefore, High Court was right in interfering with judgment and order of acquittal passed by trial court and convicting accused under Ss. 302/34 IPC No interference with impugned judgment and order passed by High Court is warranted herein Hence, conviction of accused under Ss. 302/34 IPC, stands confirmed”.

¶331

80. In the case of Siju Kurian Vs. State of

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Karnataka¹² , it is held that (we quote):

¶333

“16. 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 Pradesh² it has been held by this Court as under:

¶334

“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

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12 2023 SCC OnLine SC 429

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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.

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17. 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 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.

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

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But in exercising the power conferred by the Code and before reaching its conclusions upon fact,

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the High Court should and will always give proper

¶343

weight and consideration to such matters as:

¶344

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

¶345

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

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

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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.

¶348

In the case of Chandrappa Vs. State of

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Karnataka¹³ reiterated the legal position as under :

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

¶351

(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.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not

¶353

13 (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] ,

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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.

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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.

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(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.’

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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.

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Accused No.1 was charge-sheeted for the offence punishable under Section 4 and 6 of the POCSO Act and Sections 366 and 376 of the IPC. Section 376 of IPC is on par with Section 6 of POCSO Act. Incase of Section 6, the victim should be minor. In the present case, the victim is proved to be a minor below the age of 18 years. It is the evidence of PW-1 that accused No.1 has committed repeated aggravated sexual intercourse with her against her will and wish. The act of accused No.1 falls in the category of Section 5(l) of POCSO Act of 2012, which is punishable under Section 6 of POCSO Act of 2012. Hence it is sufficient to punish accused No.1 under Section 6 of POCSO Act and there is no need to punish accused No.1 under Section 376 of IPC as provided under Section 42 of POCSO Act. Hence, though charge is framed under Section 376 of IPC, but no need to punish under Section 376 of IPC. Accused No.1 is liable for punishment under Section 6 of POCSO Act 2012 and Section 366 of IPC.

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Point No.6 : For the aforesaid discussion, we pass the following:

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ORDER

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i) The appeal is partly allowed.

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ii) The impugned judgment passed by the Court of VI Additional District and Sessions Judge, Mysuru in S.C.No.25 of 2014 dated 04.10.2016 is partly set aside in respect of accused No.1.

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iii) The accused No.1 is found guilty for the offences punishable under Sections 366, 376 of IPC and Section 6 of POCSO Act 2012.

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iv) The acquittal of accused No.1 for the offence punishable under Section 4 of POCSO Act and accused Nos.2 and 4 to 7 for the offences punishable under section 506, read with Section 34 of the IPC and Section 21 of POCSO Act of 2012 is confirmed.

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v) Accused No.1 Gireesh, Son of Ramesha has

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been convicted for the offence punishable under

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Sections 366, 376 of IPC and 6 of POCSO Act of

To hear on sentence.

Sd/JUDGE

Sd/JUDGE

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DR.HBPSJ & UMBAJ :

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09.02.2024

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Hearing on Sentence

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Heard learned advocate for Respondent and learned Additional State Public Prosecutor. The learned advocate for respondent No.1/accused No.1 has submitted that accused No.1 had no criminal antecedents and he was not involved in any other offence except alleged offence in this case. He is poor and having social and family responsibilities. He is aged about 35 years. He is doing painting work. He has to maintain his family members. If he is sentenced to more number of years, then his entire family would suffer. Therefore, prayed to take lenient view while imposing sentence.

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The learned Additional State Public Prosecutor has submitted that accused No.1 has committed heinous crime against a poor victim, who was aged about 14 years. Her future life was destroyed by his lust. If he is shown any leniency in imposing the sentence, it gives a wrong signal to the Society. Therefore, in the ends of justice and maintaining the healthy society, he should be convicted to the maximum permissible limit under law.

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It is not in dispute that accused No.1 had no criminal antecedents and he was young, aged about 24 years at the time of alleged incident. It is on record that he comes from a poor family and he survives himself and maintains the family by working as painter. Considering all these facts, it is just and necessary to take lenient view while imposing the sentence.

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It is also well established principle of law that lenient view does not mean that the sentence should be disproportionate to the offence committed by an accused. The victim girl was a minor, aged about 14 years and 4 months at the time of alleged incident. Accused No.1 had sexual intercourse with her inspite of her refusal for about ten days from 13.10.2013 to 24.10.2013. As rightly submitted by the learned Additional State Public Prosecutor, he destroyed future of the victim girl, who was aged about 14 years at the time of incident. Therefore, accused No.1 is not entitled for too much leniency while imposing the sentence.

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Considering the facts and circumstances of this case we are not inclined to extend benefit of Probation of Offenders Act to the accused.

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As discussed in the above paragraphs, the ingredients of the offence punishable under Section 6 of the POCSO Act and Section 376 of IPC are one and the same. In view of Section 42 of POCSO Act, accused is to be sentenced for the offence punishable under Section 6 of POCSO Act of 2012.

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For the aforesaid discussion we sentenced accused No.1 as under:

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ORDER

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i) Accused No.1, namely, Gireesh, Son of Ramesha, Aged about 28 years, R/o No.49, 5^TH Cross, 3^RD Stage, Nandagokula, South of Kumbarkoppal, Mysuru City570001, shall undergo rigorous imprisonment for a period of ten years and shall pay a fine of `50,000/- (Rupees Fifty Thousand only), in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year for the offence punishable under Section 6 of the POCSO Act of 2012.

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ii) Accused No.1 shall undergo rigorous imprisonment for a period of five years and shall pay fine of `5,000/(Rupees Five Thousand only), in default of payment of fine, he shall undergo rigorous imprisonment for three months for the offence punishable under Section 366 of IPC.

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iii) Substantial sentence of imprisonment shall run

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concurrently.

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iv) The accused is entitled for set-off as provided under Section 428 of CR.P.C.

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v) Out of the fine amount of 55,000/- (Rupees Fifty Five Thousand only), 50,000/- (Rupees Fifty Thousand only) shall be paid the victim girl/PW-1 as compensation as provided under Section 357 of Cr.P.C.

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vi) PW-1 is also entitled for compensation from the District Legal Service Authority under Section 357(A) of Cr.P.C. The Member Secretary of District Legal Service Authority, Mysuru is directed to consider the case of PW-1 for compensation in accordance with the provisions of law.

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vii) The Registry is directed to send back the Trial Court Records forthwith along with copy of this judgment.

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viii) The Registry is also directed to send copy of this Judgment to the District Legal Service Authority, Mysuru to consider to pay compensation to PW-1, as ordered above.

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ix) Accused No.1 is granted forty five (45) days time from today to surrender before the VI Additional District and Sessions Judge and Special Court at Mysuru, to undergo sentence.

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x) The Registry is directed to supply copy of the judgment to accused No.1, free of cost.

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xi) Orders passed in the impugned judgment in respect of disposal of material objects (MOs) and release of vehicle is not disturbed.

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Sd/JUDGE

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Sd/JUDGE

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