Jagadeesha Vs the State of Karnataka

SMT. JAYA SHEELA W/O MANJU AGED ABOUT 34 YEARS R/AT MAHADEVAPURA VILLAGE HUNSUR TALUK MYSURU DISTRICT - 571 105 (AMENDMENT CARRIED OUT AS PER ORDER DATED 02.07.2024)

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…RESPONDENTS

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(BY SRI: HARISH GANAPATHY, HCGP FOR R1 R2 - SD)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 08.09.2021 PASSED BY THE

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HC-KAR

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ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1, MYSURU IN SPL.C.NO.441/2019 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(A)(B) OF IPC AND SECTION 5(M) AND 6 OF POCSO ACT; THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 20 YEARS WITH FINE OF RS.50,000/- AND IN DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE P/U/S 376(A)(B) OF IPC; IT IS MADE CLEAR THAT EVEN IF THE ACCUSED UNDERGOES THE DEFAULT SENTENCE, HE WILL NOT BE ABSOLVED OF HIS LIABILITY TO PAY THE FINE AMOUNT IN VIEW OF THE PROVISO TO SUBSECTION (1) OF SECTION 421 OF CR.P.C; THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant - accused in Spl.C.No.441 of 2019 on the file of the learned Additional District and Sessions Judge, FTSC1, Mysuru, is impugning the judgment of conviction and order of sentence dated 08.09.2021, convicting him for the offence punishable under Section 376(AB) of IPC and under Section 5(m) read with Section 6 of POCSO Act and sentencing him to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs.50,000/- for the offence punishable under Section 376(AB) of IPC, with default sentence.

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Brief facts of the case of prosecution is that, PW1 - the victim girl was aged 3 years and on 15.08.2019 while she

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HC-KAR

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was playing in front of the house of accused, he induced and took her to his house knowing fully well that she is only 3 years of age, committed rape, punishable under Section 376(AB) of IPC and committed aggravated penetrative sexual assault under Section 5(m) punishable under Section 6 of POCSO Act. It is the contention of the prosecution that the accused was the neighbor of the victim girl, induced and taken her to his house and committed aggravated penetrative sexual assault. Later, she informed this fact to her mother PW2, who logged the first information as per Ex.P1. The FIR came to be registered as per Ex.P3. The victim girl was subjected to medical examination. The accused was apprehended. After completing investigation, the charge sheet came to be filed.

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The Special Court took cognizance of the offences. The accused was produced before Trial Court. He pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 6, got marked Exs.P1 to P24 and identified Mos.1 to 4 in support of its contention. The accused has denied all the incriminating materials available on record in his statement under Section 313 of Cr.P.C. and examined DWs.1 to 4 and got marked Exs.D1 to 4 in support of his defence. The Trial

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Court after taking the consideration of all these materials on

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record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and convicted and sentenced as stated above. Being aggrieved by the same, the appellant is before this Court.

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Heard Sri B Lethif, learned counsel for the appellant

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and Sri Harish Ganapathy, learned High Court Government Pleader for the respondent - State. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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"Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?"

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My answer to the above point is 'partly in the affirmative' for the following:

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HC-KAR

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REASONS

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It is the contention of the prosecution that the victim - PW1 was aged 3 years at the time of incident. The accused being her neighbor induced her and took to his house to commit aggravated penetrative sexual assault/rape and thereby committed the offences punishable under Section 376(AB) of IPC and under Section 5(m) read with Section 6 of POCSO Act.

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In order to prove its contention, the prosecution examined the PW1 - the victim girl, who has deposed before the Court that on the date of incident i.e., the date on which the flag was hoisted in her school, she came back early and was playing with one Preetham. In the meantime, the accused called her and took her to his house, committed penetrative sexual assault, as a result of which, there was bleeding in her private part. She started weeping and thereafter the accused left her. She came to the house and informed her mother, who applied coconut oil to her vagina. Inspite of that, she was having burning sensation. Later, she was taken to hospital. The doctor examined her. Witness was cross examined by the learned counsel for the accused. But nothing has been elicited

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from her to disbelieve her version regarding commission of the sexual assault by the accused.

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PW2 is the mother of the informant, who lodged the first information and deposed about the fact that was stated to her by the victim girl. PW3 is the PSI who registered the FIR and apprehended the accused.

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PW4 is the doctor who examined the victim girl and issued the medical certificate as per Exs.P8 and P9. In her chief examination, the witness stated that she had examined the child, collected the samples and forwarded it to FSL. She received the FSL Report on 04.10.2019. After considering the FSL Report, she issued the opinion that there is no evidence of sexual intercourse committed on the victim girl. Witness also stated that some questions were sent to her by the Investigating Officer. She stated that the victim was subjected to sexual assault. There was redness in the inner surface of labia majora, that could have been caused while trying to sexually assault the victim. During cross examination, it is elicited from the witness that there was no external injuries on

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HC-KAR

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the body of the victim girl. The history of injury was narrated by the child and also by her mother.

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Ex.P8 is the medical certificate issued by PW4 after examining the victim. As per this report, the hymen was intact, fourchette was intact, vagina was normal, discharge was absent, labia majora was normal, but there was redness on the inner surface of the labia majora. The final opinion was kept pending for want of RFSL. Ex.P9 is the final report given by PW4 after referring to RFSL. As per this report, the final opinion of the Doctor is that there is no evidence of sexual intercourse. Ex.P10 is the RFSL report, according to which, neither seminal stains nor spermatozoa were detected in any of the articles sent for examination.

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On the basis of these materials on record, learned counsel for the appellant contended that the Trial Court has committed an error in convicting the accused for the offence punishable under Section 376(AB) and Section 5(m) read with Section 6 of POCSO Act. As in fact, neither Section 376(AB) of IPC nor Section 5(m) read with Section 6 of POCSO Act, could be attracted, as in the present case, there was no penetrative

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sexual assault. At the most, the offence in question may amount to Section 9(m) of POCSO Act, as it is aggravated penetrative sexual assault on the child below 12 years.

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I have considered the materials on record. Even though the victim girl has stated that the accused has committed the penetrative sexual assault, the medical examination of the victim does not support such allegations. The say of the victim is to be considered in the light of the fact that she was hardly aged 3 years at the time of incident. Therefore, much reliance could be placed on the medical evidence placed by the prosecution, instead of relying on the oral testimony of the child aged 3 years.

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PW4 who examined the victim girl immediately after the incident, issued Ex.P8 with her finding as referred to above. No abnormality except redness was found by her. Ex.P9 is the final opinion given by the Doctor after referring to RFSL report which is as per Ex.P10. When a categorical finding is recorded by PW4, the Medical Officer, that there was no evidence of sexual intercourse, I am of the opinion that the prosecution has failed to prove the commission of offence punishable under

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Section 376(AB) of IPC or under Section 5(m) read with Section 6 of the POCSO Act. The materials on record squarely attract Section 9(m) of the POCSO Act as the act committed by the accused amounts to aggravated sexual assault committed on the child below 12 years. Hence, the accused is liable for conviction under Section 9(m) punishable under Section of 10 of POCSO Act.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The Trial Court has proceeded to accept the evidence of PW1,

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the child who was hardly aged 3 years to form an opinion that there was rape/aggravated penetrative sexual assault and accordingly, convicted and sentenced him. From the discussions held above, I am of the opinion that the accused is found guilty for the offence under Section 9(m) punishable under Section 10 of POCSO Act. Under such circumstances, the impugned judgment of conviction and order of sentence passed by the Trial Court is to be modified. Accordingly, I answer the above point partly in the affirmative and proceed to pass the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment of conviction and order of sentence dated 08.09.2021 passed in Spl.C.No.441 of 2019 on the file of the learned Additional District and Sessions Judge, FTSC-I, Mysuru, is hereby set aside.

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(iii) Instead, the accused is convicted for the offence under Section 9(m) punishable under Section 10 of POCSO Act and he is sentenced to undergo rigorous imprisonment for a period of six years and to pay fine of Rs.50,000/- as ordered by the Trial Court.

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(iv) The accused is entitled for set off as provided under Section 428 of Cr.P.C. for the period he has undergone the detention.

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(v) The concerned Jail Authorities are directed to verify the length of imprisonment undergone by the appellant and if he has already undergone the sentence imposed by this Court, to release him immediately, if he is not required in any other cases, and if the fine amount is deposited.

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Registry to send back the Trial Court records along with copy of this judgment for information and for needful action, i.e., to issue conviction warrant, if not already issued.

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Sd/(M G UMA) JUDGE

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*bgn/CT:VS List No.: 1 Sl No.: 17

Jagadeesha v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Jagadeesha v. the State of Karnataka

Case brief

What is this about?

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What the court decided

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