Dismissed

State of Karnataka v. Suresha

Karnataka HC27 Jun 2024CRL.A/984/2017

Case brief

AI extract

What is this about?

The State sought leave to appeal against acquittal in a POCSO case. The court found the victim's age was not conclusively proved, the victim denied assault and elopement, and medical/FSL evidence contradicted sexual assault claims. Following precedent on limited scope for interference with acquittals, it dismissed the appeal.

What the court decided

AI extract

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

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NC: 2024:KHC:23833-DB CRL.A No.984/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF JUNE, 2024 PRESENT

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

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.984/2017(A)

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BETWEEN:

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STATE OF KARNATAKA BY AIMANGALA POLICE STATION CHITRADURGA DISTRICT REPTD BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU - 01.

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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(BY SRI. RAJATH SUBRAMANYA, HCGP)

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…APPELLANT

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AND:

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SURESHA

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S/O KRISHNAPPA AGED ABOUT 24 YEARS AGRICULTURIST

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R/O KARIOBENAHALLI VILLAGE HIRIYURU TALUK

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CHITRADURGA DISTRICT.

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PUNEETH @ RANGA PUNEETH KUMAR R S/O RANGANATH AGED ABOUT 21 YEARS STUDENT R/AT KARIOBENAHALLI VILLAGE HIRIYUR TALUK CHITRADURGA DISTRICT - 572 143.

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SMT. AMBUJAKSHI W/O ERANNA AGED ABOUT 40 YEARS R/AT. KARIOBENAHALLI VILLAGE

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NC: 2024:KHC:23833-DB CRL.A No.984/2017

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HIRIYURU TALUK CHITRADURGA DISTRICT.

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…RESPONDENTS

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(BY SRI. K. MURTHY, ADV., FOR R1 & R2 SMT. ARCHANA K.M. ADV., FOR R3)

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THIS CRL.A. IS FILED U/S.378(1) & (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 22.02.2017 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL. CASE (POCSO) NO.9/2016 - ACQUITTING THE RESPONDENTS FOR THE OFFENCES P/U/S 363, 366, 376, 506 R/W 34 OF IPC AND SEC.4 AND 12 OF POCSO ACT AND SEC.9 AND 11 OF PROHIBITION OF CHILD MARRIAGE ACT.

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

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JUDGMENT

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"Whether the impugned judgment and order of acquittal passed by the II Additional District and Sessions Judge, Chitradurga in Spl.C.(POCSO) No.09/2016 suffers patent illegality or perversity?" is the question involved in this case.

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Respondent Nos.1 and 2 were tried in Spl.C.(POCSO) No.09/2016 by the trial Court for the charges of the offences punishable under Sections 363, 506, 366 r/w Section 34 of IPC and Sections 9 and 11 of the Prohibition of

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Child Marriage Act, 2006 ('The Act' for short) and Accused No.1 was tried for the offences punishable under Section 376 of IPC and Sections 4 and 12 of the Protection of Children from Sexual

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Offences Act, 2012 ('the POCSO Act' for short) on the basis of the charge sheet filed by the Imangala police in Crime No.120/2015 of their police station.

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

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The case of the prosecution in brief is as follows:

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(i) That PW-14 the victim was born on 09.12.1998.

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PW-1 is the mother of PW-14, PW-2 is the brother, PW-4 is the sister and PW-13 is the father of PW-1. Accused Nos.1 and 2 with the intention of accused No.1 committing sexual assault on PW-14, kidnapped her on 03.08.2015 from her College in Hiriyur town and took her to Bengaluru. Accused No.1 married her in a temple in Bengaluru. Accused Nos.1 and 2 took the house of CW-3 Shanthamma on rent and lodged the victim in that house upto 16.08.2015. During such stay in the said house, accused No.1 committed repetitive penetrative sexual assault on PW-14.

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(ii) On 06.08.2015 PW-1 filed complaint against accused Nos.1 and 2 as per Ex.P1 before PW-17 the PSI of

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Imangala police station, Hiriyur taluk. Based on which he registered FIR Ex.P23 and took up the investigation. On 16.08.2015, accused No.1 dropped PW-14 near Vaddikere temple and escaped. Then she along with PW1 appeared in the police station. Then PW-17 got conducted the medical examination of the victim. PW-15 conducted the further investigation and filed charge sheet. During course of investigation, accused Nos.1 and 2 were arrested and they were granted bail.

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The trial Court on hearing the parties framed the charges against the accused Nos.1 and 2 for the offences punishable under Sections 363, 506, 366 r/w 34 IPC and Sections 9 and 11 of the Act, and against accused No.1 for the offences punishable under Section 376 IPC r/w Sections 4 and 12 of the POCSO Act.

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The accused denied the charges and claimed trial. Therefore, trial was conducted. In support of the case of the prosecution, PWs-1 to 17 were examined and Exs.P1 to P24 and MOs.1 to 13 were marked. After their examination under

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Section 313 Cr.P.C., the accused did not lead any defence evidence.

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The trial Court on hearing the parties by the impugned judgment and order acquitted the accused of all the charges on the ground that the victim being child i.e., aged below 18 years was not proved beyond reasonable doubt. The trial Court further held that the prosecution failed to prove the charge of sexual assault and child marriage. The state has preferred the above appeal challenging the said judgment and order.

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Sri.Rajath Subramanya, learned HCGP for the appellant and Smt.Archana K.M., learned Amicus Curiae for the informant/respondent No.3 reiterating the grounds of appeal submit that the evidence of PW-7 the Head Master of the school where the victim studied, Ex.P13 the school certificate, Ex.P9 the ossification test report and the evidence of PW-5 the doctor, show that the victim was aged below 18 years. Further, the evidence of PW-14 herself shows that the accused had taken her out of custody of her mother PW-1 for the purpose of accused No.1 marrying her and he married her. They submit

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that the evidence on record clearly shows that accused No.1 and PW-14 co-habited in the house of CW-3 between 03.08.2015 to 15.08.2015. The trial Court has overlooked the presumptions under Sections 29 & 30 of the POCSO Act. Under the circumstances, the trial Court was in grave error in holding that the charges against the accused were not proved. Therefore, they submit that the impugned judgment and order shall be set aside.

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Sri.K.Murthy, learned counsel for respondent Nos.1 and 2/accused submits that PW-14 the victim herself did not support the case of the prosecution. The evidence of PWs-1, 2, 4 and 13 was all hearsay. He further submits that the medical evidence and evidence of PW-14 were totally negative regarding sexual assault. The trial Court on proper appreciation of the evidence has acquitted the accused. The said judgment does not warrant interference by this Court.

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ANALYSIS

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The fact of PW-1 being the mother of PW-14 the victim and PWs-2, 4 and 13 being the close relatives of PW14 is not disputed. It is also not disputed that the victim and accused

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were belonging to Kariobanahalli Village. The trial Court has acquitted the accused on the ground that PW-14 has not supported the prosecution version, PWs-1, 2, 4 and 13 are all interested witnesses and even their evidence was hearsay evidence and that cannot be relied. So far as the sexual assault, the trial Court held that the evidence of PW-14 the victim herself and the medical evidence went contrary to the allegation of sexual assault.

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The Hon'ble Supreme Court in judgment of Prem Singh v. State of Haryana¹ has held that in an appeal against the order of acquittal, the scope of interference by the Appellate Court is limited. It is held that, at that stage the accused has double presumption of innocence in his favour. Firstly, the presumption of innocence which is fundamental principle of criminal jurisprudence available at trial stage and secondly, which gets reinforced by the judgment of acquittal. It was further held that merely because two views are possible on the analysis of the evidence, the first Appellate Court cannot interfere with the judgment of acquittal. It was held that unless

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1 (2013) 14 SCC 88

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it is shown that the impugned judgment and order of acquittal suffers patent illegality or perversity, the same shall not be interfered. Now this Court has to examine the present case on the light of the said principles.

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Reg. charges under Sections 363, 366 and 506 r/w 34 IPC.

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The charges under Section 363 IPC, Section 9 and 11 of the Act are applicable, only if it is proved that the victim was a minor i.e. aged below 18 years. To prove the age of the victim, the prosecution relied on the evidence of PW-1 the mother of PW-14, PW-14 the victim herself and PW-7 the Head Master who issued the school certificate Ex.P13. PW-14 in her deposition stated that she is aged 20 years. PW-1 the mother of the victim deposed that the date of birth of the victim is 09.12.1998. The prosecution was required to prove the same. To prove the date of birth, no birth certificate was produced. But the prosecution relied on the evidence of PW-7 the Head Master of the school where PW-14 studied, Ex.P13 the school certificate, the evidence of PW-5 the doctor who conducted the ossification test of PW-14 and his report Ex.P9.

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The Hon’ble Supreme Court in Mahadeo v. State of Maharashtra and Another 2 has held that the yardstick applicable for the assessment of the age of juvenile in conflict with law under Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as JJ Rules) is applicable to the juvenile victim also. In this case the incident took place in August of 2015. Therefore, the parties were governed by the JJ Rules, 2007. The Hon’ble Supreme Court in the above said judgment referring to said Rule 12(3) held as follows:

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

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

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2 (2013) 14 SCC 637

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( a )( i ) the matriculation or equivalent

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certificates , if available; and in the absence whereof;

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

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

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

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(Emphasis supplied)

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

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produced. Only in the absence of the first three, ossification test has to be resorted.

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In the present case, PW-7 clearly admits that he has issued Ex.P13 based on the entries in the admission register. But the said admission register was not produced. First of all in Ex.P13 it is not stated that it is the true extract of the admission register. As per the said document the victim was admitted to the said school on 07.08.2004. PW-7 in his chief examination itself states that he worked in the said school i.e., Kariobanahalli Government Higher Primary School between 11.06.2011 and 18.08.2016. Therefore, he is not the author of the entries in the said register. He has not produced the said admission register nor certified in Ex.P13 that the said document is the true extract or the certified copy of the admission register. He admits that the admission Number namely Sl.No.13/2004-05 is not personally entered by him. Therefore, the trial Court was justified in not relying on the evidence of PW-7 and Ex.P13 in proof of the date of birth of the victim.

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So far as the evidence of PW-5 who conducted the

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ossification test and issued Ex.P9 the radiology report, the age of the victim was between 16 and 17 years. The Hon'ble Supreme Court in the judgment in Vinod Katara v. State of Uttar Pradesh³ has held that the ossification test is not exact science that can provide the exact age of the person. It was held that the said test is not conclusive for age determination and that leaves a margin of two years on either side. In this case, even PW-5 admits that his report states the approximate age and as per the medical jurisprudence two years margin on either side has to be given. Therefore, even the said evidence was inadequate to hold that the victim was aged below 18 years.

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Once the age is not proved charges under Sections 9 and 11 of the Act do not sustain. To hold the accused guilty of charges under Section 363 and 366 IPC, prosecution has to establish that the accused had kidnapped her under criminal intimidation as alleged. But, PW-14 totally denied the allegation of criminal intimidation made against the accused. She claimed

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3 AIR 2022 SC 4771

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that she was in love with accused No.1 and since his family members were making effort to perform his marriage with another girl, she herself eloped with him and they married. Since the age was not proved, even if PW-14 admitted the marriage, that does not amount to violation of the provisions of the Prohibition of Child Marriage Act.

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Once the evidence of PW-14 fails, the evidence of PWs-1, 2, 4 and 13 has no legs to stand because, they said that they learnt about all those allegations through PW-14 which was hearsay evidence. Moreover, the evidence on record shows they were unhappy with the marriage of PW-14 with accused No.1. Therefore, trial Court was justified in holding that they were interested witnesses.

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Reg. sexual assault:

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It is the contention of the prosecution that between 03.08.2015 and 15.08.2015, accused No.1 lodging the victim in the house of CW-3, committed repetitive penetrative sexual assault on her. But PW-14 categorically denied that accused No.1 committed sexual assault on her. To prove that PW-14 was subjected to sexual abuse, the prosecution relied on the

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evidence of PW-12 who examined PW-14 on the requisition of the I.O. and issued Ex.P18 the medical examination report and Ex.P19 the opinion and the evidence of PW-16 the FSL expert. PW-16 the FSL expert states that, on examination of the articles i.e. belongings of the victim and the accused, no seminal stains, spermatozoa or skin tissue were found in the said articles and accordingly Exs.P11 and P22 were issued.

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PW-12 the doctor who examined the victim and issued medical examination report Ex.P18 and final opinion Ex.P19 states that there were no injuries on the private parts of the victim and there was no evidence of sexual intercourse. When the victim herself denied the sexual assault on her and the prosecution's own medical evidence did not support the theory of sexual assault, by no stretch of imagination, it can be said that the finding of the trial Court, that charges under Section 376 of IPC and Sections 4 and 12 of POCSO Act are not proved is illegal or perverse.

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Under the aforesaid facts and circumstances, the trial Court was justified in acquitting the accused in the said charges also. By no stretch of imagination, it can be said that

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