Krishnappa Vs State by Jayapura Police Station

KRISHNAPPA S/O KARIYA AGED ABOUT 60 YEARS LABOURER, R/AT SITE HOUSE NEAR CHURCH, BASARIKATTE HONNEGUNDI VILLAGE, KOPPA TALUK CHIKKAMAGALURU DISTRICT-577 126 NOW IN CENTRAL PRISON (CONVICT NO.4181) DHARWAD-580 001. …APPELLANT

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(BY DR.J.S.HALASHETTI, ADVOCATE)

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AND:

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

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STATE BY JAYAPURA POLICE STATION NOW REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001. …RESPONDENT

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(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO ALTER THE NATURE AND EXTENT OF SENTENCE DATED 16.05.2018 PASSED BY THE I ADDITIONAL SESSIONS AND SPECIAL JUDGE, CHIKKAMAGALURU IN SPL.C.(PCSOA)NO.18/2017 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(f)(i)(n) AND 506 OF IPC AND SECTIONS 5(j)(II)(l)(n) AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 ETC

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

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HC-KAR

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

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Challenging the judgment and order of conviction and

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sentence passed against him, the accused in Spl.C.(PCSOA).No.18/2017 before I Additional Sessions and Special Judge, Chikkamagaluru has preferred this appeal.

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By the impugned judgment and order, the trial Court has convicted the appellant for the charges for the offences punishable under Sections 376(2)(f),(i),(n) and 506 IPC and Sections 5(j)(ii), 5(l), 5(n) read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and sentenced him for different terms of

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sentence as follows:

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Sl. No	Offence under Section	Sentence	Fine amount in Rs.	Default sentence
1	376(2)(f)(i)(n) IPC & 5(j)(ii), 5(l), 5(n) r/w with 6 of POCSO Act.	Life imprisonment	25,000/-	SI for 2 years
2	506 IPC	SI of 1 year	5,000/-	SI for 3 months

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HC-KAR

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The trial Court by the impugned judgment and

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order held that the appellant has committed aggravated penetrative sexual assault on his foster child/PW.2 leading to her pregnancy and delivering a baby boy. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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Heard both side.

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Submissions of Dr.J.S.Halashetti, learned Counsel for the accused:

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There are material contradictions in the evidence of the prosecution witnesses. PW.1/complainant states that she recorded the statement of PW.2 on the direction of the Higher Officer/Child Development and Protection Officer (CDPO). But the said CDPO is not examined. According to PW.2’s statement/Ex.P6, accused himself had taken her to the hospital. The genesis of the case itself is suppressed. If this Court upholds the conviction, lenient view in sentence may be taken as the accused is presently aged about 67 years. He has dependent blind wife.

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Submissions of Sri Vijaykumar Majage, learned SPP-II:

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The accused did not dispute that victim was his fostered child and she was living with his wife and himself. He

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did not even dispute that the victim was pregnant and delivered the child. If culprit was some other person, he should have acted to protect the interest of the minor victim by filing complaint. He has no explanation about the minor victim’s pregnancy or delivery. DNA test report has confirmed him to be the biological father of the child. PW.2/the minor victim has completely supported the prosecution case. The presumption under Sections 29 and 30 of the POCSO Act was not rebutted. The offence was brutal one. The trial Court on judicious appreciation of the evidence and law has passed the judgment of conviction and sentence. The same does not warrant any interference.

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On hearing both side and on examination of the materials on record, the point that arises for consideration is “whether the impugned judgment and order of conviction and sentence is sustainable”?

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ANALYSIS

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The accused Krishnappa was prosecuted in Spl.Case (PCSOA)No.18/2017 before the trial Court for the charges for the offences punishable under Sections 376(2)(f)(i)(n) and 506 of IPC and Sections 5(j)(ii), 5(l) and 5(n) read with Section 6 of

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the POCSO Act on the basis of the charge sheet filed by Jayapura Police in Crime No.14/2017. The said case in turn was registered against the accused on the basis of Ex.P1/the statement of PW.2 recorded by PW.1/Counsellor of Koppa Mahila Santhwana Helpline who in turn had submitted that to the police.

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The case of the prosecution in brief is as follows:

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(i) PW.2/the victim girl as on 07.02.2017 was aged 14 years. Her parents had three children and she was eldest amongst them. Her father had deserted her mother and the three children long back. PW.2/victim girl, her mother, younger sister and brother were residing in Koggare village. Accused is the Senior maternal uncle of mother of the victim/PW.2. Considering the precarious condition of victim’s family, the accused brought her to his house in Basarikatte at her age of three years and fostered her since then. His sons were grown up and residing separately with their families in Balehole and Mangalore.

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(ii) The eye sight of the wife of the accused was affected since about ten years. The victim considered the accused and his wife as her parents and used to call them as

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father and mother. Ever since the time she was brought to the

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family of the accused, she used to sleep with him treating him as her foster father. About four months prior to 07.02.2017, namely the date of her statement/Ex.P1, during one night the accused undressed her, committed penetrative sexual assault on her and threatened her not to reveal the incident to anybody. Thereafter up to February 2017, intimidating her, multiple times he committed penetrative sexual assault on her. Consequently, she missed her menstrual cycle. When she revealed the same to the accused, he took her to Basarikatte Hospital. On examining her, she was found four months pregnant. Then he took her back.

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(iii) When such child abuse became public, PW.1 visited the house of the accused, enquired PW.2 and recorded her statement as per Ex.P1. In turn PW.1 submitted the said complaint to PW.10/Assistant Sub-Inspector of Police of Jayapura Police Station. Based on that he registered the FIR/Ex.P17 against the accused and handed over further investigation to PW.13. PW.13 got the victim medically examined, got recorded Ex.P6/the statement of the victim under Section 164 of Cr.P.C., arrested the accused, recorded

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the statements of the witnesses, collected her school certificate/Ex.P15 in proof of birth and medical records and filed the charge sheet. Victim was sent to Government Childcare Institute for rehabilitation. After filing the charge sheet, the victim delivered a baby boy. Then collecting their samples, DNA test was conducted and report as per Ex.P22 was received confirming the paternity of the accused. Subsequently, that was submitted to the trial Court.

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Trial Court on conducting the trial by the impugned judgment and order has convicted and sentenced the accused as aforesaid on the ground that the evidence of PW.2 is found acceptable and the same is corroborated by other evidence on record.

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Accused did not dispute the fact that PW.2 being minor and his blood relative and that he was fostering her in his house. He also did not dispute that in his house himself, his visually impaired wife and victim alone were residing. He also did not dispute the fact of PW.2 conceiving and delivering baby boy, but he only disputed that he was the perpetrator of crime.

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Since accused is convicted for the charges for the offences punishable under Sections 376(2)(f)(i)(n) and 506 of

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IPC and Section 5(j)(ii), 5(l) and 5(n) read with Section 6 of

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POCSO Act, it is useful to refer to the relevant provisions which read as follows:

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Section 376(2)(f)(i) (n) of IPC :

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“376. Punishment for rape

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(1)

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(2) Whoever,—

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(f) being a relative , guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

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(i) commits rape on a woman when she is under sixteen years of age ; or

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(n) commits rape repeatedly on the same woman ,

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shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.”

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Relevant provisions of Section 5(j)(ii), 5(l) 5(n)

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and 6 of POCSO Act read as follows:

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“5. Aggravated penetrative sexual assault

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(j) whoever commits penetrative sexual assault on

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a child, which—

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(i) …………………………………

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(ii) in the case of female child, makes the child

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pregnant as a consequence of sexual assault;

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(l) whoever commits penetrative sexual assault on

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the child more than once or repeatedly; or

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(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child , commits penetrative sexual assault on such child; or

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is said to commit aggravated sexual assault.

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6. Punishment for aggravated penetrative sexual assault

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Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.”

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In view of the above provisions and in the context of the facts of the present case, the prosecution was required to prove the following facts:

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(i) That PW.2 was aged below 18 years/‘child’ as contemplated under Section 2(d) of POCSO Act.

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(ii) She was under foster care of accused.

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(iii) Accused committed penetrative sexual assault on

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her more than once.

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(iv) By such sexual act, he made PW.2 pregnant.

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Reg. Age:

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According to the prosecution, at the time of incident, PW.2 was aged 14 years. To prove her age, prosecution relied on the evidence of PW.8/Headmaster of Government Higher Primary School where victim studied and school certificate/Ex.P15. PW.8 deposed that he was working as Headmaster in Basarikatte Government Higher Primary School. On the requisition of the police and on examining the admission records of PW.2, he issued certificate Ex.P15. As per those records her date of birth is 16.05.2003. He denied the suggestion that he has issued Ex.P15 to suit the convenience of the police. It was accused himself who had admitted the child to the school. Then he should be knowing her date of birth, as he had admitted her to the school. In the cross examination of PW.8, it was not even suggested that PW.2 is above 18 years.

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PW.2 in her deposition dated 31.01.2018 has given her age as 14 years. In her cross examination, her age was not at all disputed. Further PW.12/the doctor who examined her

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deposed that on 07.02.2017 at 11.57 p.m. he examined PW.2

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aged 14 years, who was brought by Koppa Police. On investigation like scanning and blood test, he found her pregnant of 20-22 weeks. In that regard he submitted report Ex.P2 to the Investigating Officer. In Ex.P2 he has shown the age of the victim as 14 years. In his cross examination, absolutely there was no whisper to deny the age of PW.2 or she being minor. Similarly, in the evidence of other witnesses including the Investigating Officer, age of the victim was not disputed. Thus, the trial Court was justified in accepting that PW.2 was ‘child’ as on the date of the offence.

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Reg. aggravated sexual assault:

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The prosecution’s case, that victim was foster child of the accused and she was staying with him and in February 2017 she was found pregnant of four weeks was not disputed. PW.2/victim categorically stated that the accused sexually abused her multiple times, despite she screaming, he did not spare her. She also stated that she had missed her menstrual cycle. In her statement, Ex.P1 given before PW.1, she has stated that accused threatened not to reveal his overt acts to others. She also testified about she giving statement as per

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Ex.P1 before PW.1, she being taken to the police station, subjected to medical examination, collecting samples etc. and about her pregnancy. She also deposed about, she delivering a baby boy and recording of her statement before Magistrate as per Ex.P6. In her cross examination, except denial in toto, nothing was elicited. It was not even suggested to PW.2 that somebody else was the cause of her pregnancy. As the accused was the foster father of the victim, when she was found pregnant, he should have first initiated action against the culprit, if it was somebody else.

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The evidence on record shows that after PW.2 delivering baby boy, DNA samples of the accused, PW.2 and child were taken and sent for scientific analysis. DNA report/Ex.P22 confirmed that accused was biological father of the child. By such evidence, prosecution discharged its initial burden of proving the charges against the accused. As the offence under POCSO Act was also involved and in view of proof of the aforesaid aspects, presumptions under Sections 29 and 30 of the POCSO Act regarding commission of the offence by the accused and his culpable mental state of the mind arise. Accused failed to rebut such presumptions either in the cross

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examination of the prosecution witnesses or by way of any explanation under Section 313 of Cr.P.C. or by defence evidence. In the appeal memo, the ground raised was only regarding quantum of sentence and not on merits of conviction. Under the circumstances, the trial Court was justified in convicting the accused for the aforesaid charges.

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Reg. sentence:

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It was contended that accused was aged 59 years in the year 2017. Presently, he is aged 67 years, he has visually impaired wife, therefore, leniency should be shown in sentence.

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As already noted, for the offences of sexual abuse are punishable both under IPC and under the provision of the POCSO Act. Trial Court invoking Section 42 of POCSO Act has held that whichever offence amongst them carries higher sentence has to be imposed. Further, trial Court has held that though minimum sentence for the offence under Section 6 of the POCSO Act and Section 376 of IPC is 10 years and extendable up to life imprisonment, considering the fact that accused a foster father has committed such heinous offence, he is not entitled to any leniency. It is to be noted that at the time

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of the offence, the accused was aged 59 years and the child

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was hardly aged 13½ years. There was an age difference of more than 45 years between the victim and the accused. The victim already had devastating family background, she had sought refuge under the accused. He had brought her into his house and fostered her as foster father. The victim was highly vulnerable. He was her sole protector. But without any mercy turned to be her predator and indulged in beastly Act. The offence is abhorable and shocks the conscience of the society.

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So far as the concern of the accused about his visually impaired wife, by committing such act he has betrayed her. He is trying to use her as pawn for his convenience before this Court saying that his wife is visually impaired. Whereas in the cross examination of PW.2 he has suggested that his wife has good eyesight, she was cooking and performing household work. The evidence on record shows that he had two grown up sons. Under the circumstances, the trial Court was justified in rejecting his plea of dependent wife and imposing maximum imprisonment. In the considered opinion of the Court, there are no grounds to reduce the sentence. Hence the following:

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HC-KAR

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ORDER

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The appeal is dismissed.

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Acting under Section 357A Cr.P.C. the matter is referred to Victim Compensation Committee of District Legal Services Authority, Chikkamagaluru for determination of compensation payable to PW.2/victim and for payment of the same.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(M.G.S. KAMAL) JUDGE

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KSR List No.: 1 Sl No.: 13

Krishnappa v. State by Jayapura Police Station

Case brief

What is this about?

What did the court decide?

Krishnappa v. State by Jayapura Police Station

Case brief

What is this about?

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What the court decided

Issues for consideration

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