Santhosh P L Vs State of Karnataka by

THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 16.08.2021 AND ORDER OF SENTENCE DATED 17.08.2021, PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, AT DAVANGERE IN S.C.NO.93/2019, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 363,376,506 OF IPC AND SEC.6 OF POCSO ACT AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The appellant/accused No.1 has preferred this appeal against the judgment of conviction dated 16.08.2021 and order on sentence dated 17.08.2021 passed in S.C.No.93/2019 by the II Additional District and Sessions Judge and Special Judge, Davanagere (for short 'the trial Court').

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For the sake of convenience, parties herein are referred to as per their rank before the Trial Court.

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Brief facts leading to this appeal are that, the Circle Inspector of Police, Harihara, laid a charge sheet against accused Nos.1 to 3 for the offence punishable under sections 363, 506, 114 and 376 read with 34 of Indian Penal Code and Section 6 of POCSO Act, 2012. It is alleged by the prosecution that 6 months ago to the alleged incident, accused No.1 was in touch with the victim-CW13, who was the daughter of CW1. On 26.11.2018 at about 12.00 noon, accused No.1 had pacified the victim and without the consent and knowledge

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of her guardians, took her from the bus stand of Nandishwara camp on a motorcycle bearing Reg.No.KA17/EH-4137, which belonged to CW16, to Kumbalur village and from there he took her in a bus to Dharamsthala and

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from there he had taken her to Doddabbigere village, Channagiri Taluk and then to Kalapura village, Kotturu Taluk. Further it is alleged that, the accused No.1 after taking the victim to Doddabbigere to the house of CW17, stayed with the victim in the said house for a period of one and half months and during the said period, he had committed forcible sexual intercourse with the victim everyday, against her will and without her consent. Again accused No.1 had taken the victim to the house of CW20 in Kalapura village and stayed there for about 20 days and during the said period, he had committed forcible sexual intercourse with the victim everyday against her will and without her consent. Further it is alleged that, inspite of knowing that the victim girl was a minor, the accused No.1 had committed the act of aggravated penetrative sexual

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assault on the victim by giving life threat. Further, it is alleged by the prosecution that accused Nos.2 and 3 being the parents of accused No.1, when accused No.1 was staying in Doddabbigere and Kalapura with the victim, went there and informed accused No.1 about filing of a police case against him and also they have encouraged and instigated him to commit sexual assault on the victim. Thus, the accused has committed offences punishable under sections 363, 506, 114 and 376 read with 34 of Indian Penal Code and Section 6 of POCSO Act, 2012. After filing the charge sheet, case was registered in SC.No.93/2019. Accused No.1 was arrested on 25.02.2018. Since the date of his arrest, accused No.1 is in judicial custody.

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On hearing the arguments, the trial Court has framed charges against the accused for the alleged commission of offences. Having understood the same, accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution has examined 25 witnesses as PWs1 to 25. 32 documents were marked as Exs.P1 to P32 and 23 material objects were marked as MOs.1 to 23. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. was recorded. Accused has totally denied the evidence of prosecution witnesses. But he did not choose to lead the defense evidence on his behalf.

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Having heard the arguments on both sides, trial Court has acquitted accused Nos.2 and 3 for the commission of offence under sections 363, 376, 506 and 114 r/w 34 of IPC and Section 6 of POCSO Act. The trial Court has held that accused No.1 has committed offences punishable under sections 363, 376 and 506 of IPC and Section 6 of POCSO Act and passed the sentence. Being aggrieved by this judgment of conviction and order on sentence, accused No.1/appellant has preferred this appeal.

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Learned counsel appearing on behalf of the appellant

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would submit that, according to the complaint of PW1, victim was missing from 26.11.2018 wherein PW1 had clearly stated in her examination-in-chief itself, that on 26.11.2018 when she returned home from her work, she came to know that her daughter was missing. PW1 lodged a complaint on 18.12.2018 after lapse of 23 days which clearly shows that there is an inordinate delay of 23 days in lodging the complaint. This itself creates a suspicion in respect of missing of the victim on 26.11.2018. The prosecution has failed to explain the delay in filing the complaint. Further it is submitted that the statement of victim-PW2 itself reveals that she left the house on 26.11.2018 in an auto and she went to Nandagudi and thereafter from there she joined the appellant and went on his bike, which clearly shows that there was no threat to the victim at the time when she left the house nor there

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was any forcible kidnap by the appellant. It clearly shows that there is no material to show that victim was forcibly

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kidnapped by the appellant. In order to prove the offence under Section 363 of Indian Penal Code, without appreciating the same, the conviction and sentence passed by the learned Sessions Judge is liable to be set aside.

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Further it is submitted that, PW11-Sunil, PW12Susheelamma had clearly stated in their evidence that, appellant along with victim had gone to their house and stayed there for one and half month and they came to know about the forcible sexual assault by the appellant on the victim only when police visited their house. When the victim and appellant were staying in their house for about one and half month, there was no such complaint by the victim either to PWs.11 or 12 nor with any neighbours regarding forcible sexual assault on her, which itself creates great suspicion in respect of the case of the prosecution that the victim was forcibly kidnapped by the appellant and thereafter committed sexual assault repeatedly on the victim. But without looking into such an important aspect, the conviction and sentence passed by

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the trial Court is perverse and liable to be set aside. Further it is submitted that according to PW13-Sunitha, the appellant and victim stayed in their house for about 1 month and 20 days. But according to PW1, the victim was missing from 26.11.2018 and lodged a complaint on 18.12.2018 and the victim girl was traced on 25.02.2019 which means that totally from 26.11.2018 to 25.02.2019 victim was missing for about 91 days. Both victim and the appellant stayed in the house of PW11 to PW13 nearly one and a half months each. But there is no single complaint nor any allegation against them, by the victim for such a long period. After leaving the house on 26.11.2018, PW2victim went with the appellant to Nandagudi village in an auto and from there went on his bike upto Hubbalur and from there went to Dharmasthala and stayed there for two days. Thereafter returned to Doddabbigere and went to Kalapura near Kotturu and again went to Doddabbigere. Therefore, even though victim was with the appellant for about 90 days in 2-3 places which were public places. She

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never made any attempt nor raise any alarm for help nor she complained. This would definitely bring doubt on the allegation levelled against the appellant. PW13 had clearly stated in her cross-examination that when the appellant and the victim were staying in their house, the appellant was going for coolie work and victim was not complaining anything for a period of 1 month 20 days. When the appellant used to be in the house, he was with the victim. This itself shows that there is no life threat or any aggravated sexual harassment by the appellant to the victim.

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Further it is submitted that PW11 to PW13 clearly stated that they know the father of the appellant who is an Archaka in the temple except that they were neither close friends nor any relatives and the victim was totally a stranger to them. When that being the case, simply allowing the appellant and the victim to stay in their house

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for nearly about 1 and half months is highly unbelievable and suspicious. Therefore, in the entire evidence, the

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prosecution has utterly failed in proving that victim along with the appellant had stayed in the said stranger's house for 1 and half months and the ppellant had committed aggravated sexual act against the will of the victim for about 3 months. It is totally a false story created by the prosecution. Further, he would submit that the admission card of the victim girl marked as Ex.P31 for age purpose, and according to the said admission card, at the time when the victim left the house, she was aged about 17 years 9 months. But at the time of giving statement before the police and at the time of medical examination she was a major (18 years 7 days). Therefore, mere school admission record is not sufficient to prove the age of the victim beyond all reasonable doubt. Without appreciating such a material fact, the conviction and sentence passed by the trial Court for an offence under Section 6 of POCSO Act is not sustainable and it is liable to be set aside. The trial Court has failed to appreciate the evidence on record in its proper perspective. On all these grounds, it is sought

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for allowing this appeal. To substantiate his arguments, he relied on the judgment of Hon'ble Supreme Court in the case of LALL BAHADUR KAMI vs. STATE OF SIKKIM reported in 2018 CRI.L.J.439.

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The learned HCGP, B.Lakshman would submit that the trial Court has properly appreciated the evidence on record. There are no grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court and sought for dismissal of this appeal.

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Having heard the arguments on both sides and on perusal of the materials placed before this Court, the following points would arise for my consideration:

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(i) Whether the prosecution proves beyond all reasonable doubt that the victim was a child as defined under Section 2(d) of Protection of Children from Sexual Offences Act, 2012?

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(ii) Whether the judgment of conviction and order on sentence passed by the trial Court

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is perverse, illegal and contrary to the law and facts?

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(ii) What order?

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My answer to the above points are as under:

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(i) In the Negative.

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(ii) In the Affirmative.

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(ii) As per final order.

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I have examined the materials placed before this

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court. The Circle Inspector of Police, Harihara, laid a charge sheet against accused Nos.1 to 3 for the offence punishable under sections 363, 506, 114 and 376 read with 34 of Indian Penal Code and Section 6 of POCSO Act, 2012. It is alleged by the prosecution that 6 months prior to the alleged incident, accused No.1 was in touch with the victim-CW13, who was daughter of CW1. On 26.11.2018 at about 12.00 noon accused No.1 had pacified the victim and took her from the bus stand of Nandishwara camp on a motorcycle which belonged to CW16 bearing Reg.No.KA-

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17/EH-4137 to Kumbalur village and from there he took

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her in a bus to Dharamsthala and from there he had taken

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her to Doddabbigere village, Channagiri Taluk and then to Kalapura village, Kotturu. Further it is alleged that, the accused No.1 after taking the victim to Doddabbigere to the house of CW17, he stayed with the victim in the said house for a period of one and half months and during the said period also, he had committed forcible sexual intercourse with the victim everyday, against her will and without her consent. Again accused No.1 had taken the victim to the house of CW20 in Kalapura village and stayed there for about 20 days and during the said period, he had committed forcible sexual intercourse with the victim everyday against her will and without her consent. Further it is alleged that, inspite of knowing that the victim girl was a minor, the accused No.1 had committed the act of aggravated penetrative sexual assault on the victim. Further, it is alleged by the prosecution that accused Nos.2 and 3 being the parents of accused No.1, when accused No.1 was staying in Doddabbigere and Kalapura with the

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victim, informed accused No.1 about filing of a police case against him and also they have encouraged and instigated him to commit sexual assault on the victim. Thus, the accused has committed offences punishable under sections 363, 506, 114 and 376 read with 34 of Indian Penal Code and Section 6 of POCSO Act, 2012. After filing the charge sheet, case was registered in SC.No.93/2019. Accused No.1 was arrested on 25.02.2018. Since the date of his arrest, accused No.1 is in judicial custody.

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To prove the guilt of the accused, prosecution has examined 25 witnesses as PWs1 to 25. 32 documents were marked as Exs.P1 to P32 and 23 material objects were marked as MOs.1 to 23.

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In Ex.P1-Complaint filed by PW1-Neelamma, the date of alleged kidnap is shown as 26.11.2018. The age of the victim was 17 years 9 months 8 days. But, the accused has specifically denied the age of the victim. To prove the age of the victim, the prosecution has produced Ex.P31School Certificate issued by the Government Junior

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College, Holesirigere, reveals date of birth of the victim was 18.02.2001. To substantiate this document, the prosecution has examined PW.25-Mahaboob Basha, Senior Assistant Teacher in Government Junior College, Holesirigere. He has deposed in his evidence that at the request of police, he had issued Ex.P31. During his crossexamination he has clearly admitted that, at the time of admission of the victim, she did not produce the birth certificate. Ex.P23-Medical Legal Examination Report of Sexual Violence pertaining to the victim is concerned, the age of the victim is shown as 17 years 9 months. The medical officer who is examined as PW.15Dr.G.B.Lakshmidevi, has deposed in her evidence as to issuance of Ex.P23 and she has clearly stated that as per Radiologist, the age of the victim was above 17 years and below 20 years. Same is also reflected in Ex.P23.

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On perusal of materials placed before this Court, it

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has come in the evidence of PW.15-Dr.G.B.Lakshmidevi that the victim was 18 years as on the date of her

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examination. In Ex.P23, the victim and her mother Neelamma have stated that, on 26.11.2018 at 10.30 am, appellant had taken the victim from Holasirigere village to Nandigudi Eshwara temple and got married in the temple. From there they went to Santhebennur of Abbigere village and stayed in friend's house for one and a half months. Then they went to Kalapura village near to Abbigere and stayed for one and a half months and from 26.11.2018 to 22.02.2019, they had sexual contact with each other. As per School certificate, the date of birth of the victim is 18.02.2001 and as on the date of evidence, i.e., 22.02.2019, the age of the victim comes 18 years 4 days.

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On perusal of the entire evidence on record, it is clear that there is no consistency regarding the age of the victim. The age of the victim shown in her school certificate is contrary to contents of Ex.P23-the medical certificate issued by PW.15. Apart from this, the IO has not collected birth certificate or SSLC marks card of the victim as

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required under Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the Act').

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PW2-victim has deposed in her evidence that she was a II year PUC student. Therefore, it is clear that she

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has got SSLC marks card. However, the Investigating Officer has not taken any steps to secure the birth certificate or SSLC marks card of the victim. The IO has

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not whispered anything for non-production of the birth certificate and SSLC marks card of the victim. The parents of the victim have also not deposed anything on which basis they have given the date of birth to School Authorities. In the absence of these material evidence, it is difficult to accept the entry in the school certificate which is marked as Ex.31. The contents of Ex.P23 reveals that the victim had attained the age of 18 years at the time of alleged commission of offence. Accordingly, prosecution has failed to prove that, as on the date of alleged commission of offence the victim was a child as

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defined under Section 2(d) of POCSO Act 2012. Hence, I

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answer Point No.1 in negative.

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Since the prosecution has failed to prove that the victim comes under the definition of 'child' as on the date of commission of offence, penal provisions of Section 6 of the POCSO Act are not applicable to the case on hand.

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With regard to the offence punishable under Section

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363 of IPC, it is the case of the prosecution that the accused had kidnapped the victim on 26.11.2018 at 10.30 am. The complaint came to be filed on 18.12.2018 at 03.00 pm. On the basis of this complaint, the Police Sub Inspector, Malebennur Police station, has registered the case in Crime No.216/2018 against the accused for the offence under Section 363 of IPC and submitted FIR to the Court on 19.12.2018 at 10.25 am. Thus, there is a delay of 23 days in filing the complaint. The prosecution has not properly explained regarding delay in filing the complaint.

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PW2-victim has not whispered anything as to the kidnap said to have been committed by the accused. On

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the contrary she has clearly stated that she voluntarily went in an auto along with the accused to Nandigudi. From there they travelled on his bike. Even while recording the statement under Section 164 of Cr.P.C., the victim has not whispered anything as to the alleged kidnap made by the accused. PW1-Neelamma, mother of the victim is a hearsay witness. Hence her evidence will not come to the aid to substantiate the case of the prosecution. Absolutely, there is no evidence to constitute the offence under Section 363 of IPC.

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The rest of the offences punishable under sections 376 and 506 of IPC are concerned, in the evidence of PW2-victim i.e., the statement under Section 164 of Cr.P.C., reveals that the accused took the victim to different places and committed sexual intercourse for several times, same was not protested by her. On the contrary, the evidence of victim reveals that she voluntarily went and got married with the accused. Mother of the victim-Neelamma and the victim have stated before

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the medical officer-PW15 that, the victim was regularly going to college. Victim came to know about the accused through her relative and got introduced to each other. Then the accused was in regular contact with victim through phone calls and messages. He told her that he had born in a rich family, his mother was a Social Club Member and he was doing the real estate business. He even told her that he was in love with her and he wants to marry her. On 26.11.2018, he had taken the victim from Holesirigere village at 10.30 am to Nandigudi Eshwara Temple and they got married there. Then he took her to Santebennur in Abbigere village. They stayed in his friend's house for 1½ months, then changed the place to Kalapur village near to Abbigere and stayed for 1½ months. From 26.11.2018 to 22.02.2019 the victim and the accused were in sexual contact with each other. Finally, she was traced by Police and brought to the hospital on 25.02.2019.

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On perusal of the evidence placed by the

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prosecution, it appears that there is no aggravated penetrative sexual assault by the accused with the victim as alleged by the prosecution. The materials placed before this court and the evidence of PW1 and the medical evidence reveals that even if there is any sexual intercourse between the accused and the victim, same is consensual sex. It does not come under the definition of Section 375 of IPC. With regard to the offence under Section 506, absolutely there is no evidence to prove the guilt of the accused for the offence under Section 506 of IPC. It is also relevant to mention here that the case of the

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prosecution is that accused Nos.2 and 3 have instigated the accused No.1 to commit rape on the victim. The trial Court has acquitted the accused Nos.2 and 3. The State has not preferred any appeal against the judgment of acquittal of accused Nos.2 and 3. The acquittal of accused Nos.2 and 3 will falsify the entire story of the prosecution. Viewed from any angle, I do not find any cogent, clinching,

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corroborative legal evidence to convict the accused for the alleged commission of offences. The trial Court has not properly appreciated the evidence on record in its proper perspective. Same is perverse, illegal and not sustainable

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under law. Hence, I answer Point No.2 in Affirmative.

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Regarding Point No.3 : For the aforesaid reasons and

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discussions, I proceed to pass the following:

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O R D E R

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(i) Appeal is allowed ;

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(ii) The judgment of conviction dated 16.08.2021 and order on sentence dated