Devaraj Vs the State of Karnataka

THE STATE OF KARNATAKA, THROUGH SHORAPUR POLICE STATION, REPRESENTED BY THE ADDL. PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, AT KALABURAGI BENCH – 585 103.

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…RESPONDENT

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(BY SRI JAMADAR SHAHABUDDIN, HCGP)

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

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TRIAL COURT ON 28-06-2018 IN SPECIAL CASE NO.(POCSO) 125/2017 AND SET THE APPELLANT AT LIBERTY HOLDING THAT THE PROSECUTION HAS NOT PROVED THE GUILT OF THE APPELLANT.

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE V SRISHANANDA)

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Heard Sri Anil Kumar Navadagi learned Amicus Curiae for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the respondent/State.

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Facts in the nutshell for the disposal of the appeal are as under:

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The appellant is the accused, who has been charge sheeted by Shorapur Police Station for the offences

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punishable under Section 376 read with Section 511 of IPC and under Section 6 of the POCSO Act, 2012.

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Essential facts relating to filing of charge sheet for the aforesaid offences would reveal that on 02.05.2017 at about 12.30 p.m., victim girl, who was aged about 7 years, was taking her bath in the nearby water tank situated by the side of her house near Munavar Bhasha Darga, Rangampeth Beech Mohalla, Shorapur, the appellant being a stranger to her, approached her; removed the towel that was worn by the victim girl to cover her body and thereafter inserted his finger in her private part. The victim girl being shocked and unable to bear the pain, raised hue and cry, seeking for help.

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On hearing such loud hue and cry, appellant ran

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away from the spot. The victim girl informed the incident to her mother immediately. Thereafter, the victim girl was taken to the Government Hospital, Yadagiri. The doctor

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after examining the victim girl, sent a medico legal case

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report to the Shorapur Police.

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Based on said MLC report, Shorapur Police visited the hospital and enquired the mother of the victim girl as well as the victim girl and based on the complaint lodged by mother of the victim girl, registered a case in Crime No.125/2017 initially against the unknown person for the offences punishable under Section 376 read with Section 511 of IPC and under Section 8 of the POCSO Act, 2012. After thorough investigation, charge sheet came to be filed as aforesaid.

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During the course of investigation, the police have secured the presence of the appellant and on an enquiry, he has been made as the accused in the case. From the date of arrest, the accused is in custody.

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Thereafter, presence of the accused was

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secured. After compliance of Section 207 Cr.P.C., charges were framed against the accused for the offences under

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Section 376 IPC and under Section 6 of the POCSO Act.

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The accused pleaded not guilty. Therefore, trial was held.

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Initially, accused engaged an advocate of his choice. Later on, the accused was given the legal aid to defend the case.

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In order to prove the case of the prosecution, in all 13 witnesses were examined and ten documents were marked as Exs.P.1 to P.10 and one material object was marked on behalf of the prosecution.

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On completion of recording of prosecution evidence, accused statement as is contemplated under Section 313 of Cr.P.C. was recorded, wherein the accused has denied all incriminatory material but did not choose to place any oral and documentary evidence on record. Thereafter, the learned Trial Judge heard the parties and on cumulative consideration of oral and documentary evidence on record, convicted the accused for the offences under Section 376 of IPC and Section 6 of the POCSO Act

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and ordered to undergo simple imprisonment for a period of ten years and to pay fine of Rs.50,000/- with default sentence of six months. Accused was given the benefit of Section 428 of Cr.P.C. and compensation amount of Rs.1,00,000/- was ordered to be paid by the State under victim compensation scheme.

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Being aggrieved by the same, the accused has preferred the present appeal on the following grounds:

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“7. It is submitted that, the impugned Judgment is contrary to law and evidence in the case.

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It is submitted that, the Trial Court has committed a grave error in law by accepting and acting upon the inadmissible evidence.

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It is submitted that, the findings of the Trial Court are perverse since the Trial Court has acted solely upon guess work and assumption. The impugned judgment and order are illegal, improper and incorrect.

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It is submitted that, the impugned judgment has resulted in miscarriage of justice.

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It is submitted that, the learned Sessions Judge Yadgir has grossly erred in convicting the appellant for the offences U/s 376 of IPC.

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It is submitted that, there are no independent eye witnesses who state that they have seen the Appellant for committing the offence.

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It is submitted that, all other witnesses are examined in this case are also do not speak to the direct complicity of the appellant in the crime. However, the evidence now relied upon by the learned Sessions Judge Yadgir is on the basis of solely on guess work and assumptions.

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It is submitted that, the learned Sessions Judge Yadgir has erred by way of explaining the hypothesis of the guilt of the accused which is against the principles of natural justice. Hence, the conviction order passed by the Trial Court is deserved to be set aside.

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It is submitted that, the Learned Sessions Judge Yadgir not scrutinized the case properly and the aforesaid circumstances are no where complete the chain to hold that the appellant have committed the offence on the fateful day.

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It is submitted that, the Trial Court has failed to appreciate the evidence properly. Hence, the

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order passed by the Learned Sessions Judge Yadgir is liable to be set aside

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It is submitted that, the Trial Court has not appreciated properly the evidence on record.

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It is submitted that, the learned Sessions Judge Yadgir ought to have acquitted the appellant from the charges leveled against him.

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It is submitted that, the Trial Court erred by way of explaining the hypothesis and failed to appreciate the evidence on record properly.

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It is submitted that, the prosecution have failed to prove their case. But, the Trial Court opined that the prosecution have proved their case the opinion formed by the Trial Court is against the evidence on record.

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It is submitted that, the other relevant grounds would be urged at the time of final hearing.”

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Sri B. C. Jaka, learned counsel, who has filed

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the appeal before this Court has retired from the case and

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in order to prosecute the appeal in accordance with law, this Court appointed Sri Anil Kumar Navadagi learned counsel as an Amicus Curiae.

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Reiterating the grounds urged in the appeal memorandum, learned counsel Sri Anil Kumar Navadagi would contend that the case of the prosecution is doubtful, inasmuch as there is a serious discrepancy with regard to the identity of the very accused especially in the light of the report given by the head constable vide Ex.P.8.

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He would further contend that concept of fair trial has not been followed by the learned Trial Judge while passing the order of conviction, which is impugned in the present appeal, inasmuch as material witnesses namely, P.W.1 and P.W.2 are not even cross-examined by the counsel, who represented the accused in the Court below.

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He would also contend that since the accused has spent more than seven years in the custody, remitting the matter to the Trial Court for fresh disposal would only result in futile exercise and as such sought for modifying the order of sentence before this Court itself by treating the custody period already undergone by the accused as

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period of imprisonment and sought for allowing the appeal to that extent.

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Per Contra, Sri Jamadar Shahabuddin, learned

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High Court Government Pleader would contend that accused was given legal aid at his request and when there was no proper instruction given by the accused with regard to the incident, the learned counsel for the appellant, who represented him in the Trial Court was unable to cross-examine P.W.1 and P.W.2 for which the matter cannot be remitted to the Trial Court.

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He would also contend that identity of the accused is disputed for the first time before this Court, inasmuch as when the accused was produced before the learned Special Judge, there was no contention raised in that regard nor any other proceedings were initiated, if the accused person is no way connected with the incident and sought for dismissal of the appeal in toto.

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Having heard the arguments of both sides, this

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Court perused the material on record meticulously. On such perusal of the material on record, the following points would arise for consideration:

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(i) Whether the prosecution is successful in establishing all the necessary ingredients to attract the offences under Section 376 of IPC and Section 6 of the POCSO Act?

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(ii) Whether the impugned judgment is suffering from legal infirmity, material irregularity, procedural lapses and perverse in nature and thus calls for interference?

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(iii) Whether the sentence is excessive.

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(iv) What order?

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Regarding point Nos.1 and 2:

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In the case on hand, as could be seen from the

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material evidence placed on record, victim girl, who is examined as P.W.1 was taking bath near the tank situated

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near her house, which is situated in Munavar Bhasha

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Darga, Rangampeth Beech Mohalla, Shorapur on 02.05.2017 at about 12-30 p.m. She has covered her body with towel. Accused having spotted the victim girl, who was all alone near the water tank, approached the victim girl and pulled her towel and thereafter holding her legs tightly, said to have inserted finger into her private part. Admittedly, victim girl is aged about 7 years, unable to bear the pain on account of unexpected incident, victim girl raised hue and cry. On hearing such hue and cry, the appellant ran away from the spot.

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Immediately, the incident was reported by the victim girl to her mother who is examined as P.W.2. Immediately P.W.1 was taken to Government hospital, Yadagiri, wherein the victim girl was examined by P.W.4/Dr. Preeti.

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After examining the victim girl, in the light of the history given by the victim girl, the incident was reported to the jurisdictional police by P.W.4 by sending a

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medico legal report marked at Ex.P.4. Doctor has noticed that there were blood stains which were clotted on the Labia Majora. Tenderness and swelling were also noticed by the doctor but hymen was intact. She has further noticed redness over the Labia Majora and there was white discharge from the vagina. After collecting the white discharge as sample, she has sent a preliminary report and based on that, the police registered the case.

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Sample of white discharge collected by the doctor was sent to the forensic science laboratory and on examination of the said sample, the forensic science laboratory issued the certificate vide Ex.P.5, wherein neither seminal stains nor spermatozoa were detected.

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It is no doubt true that P.W.1 to P.W.3 are not

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cross-examined on behalf of the accused but there is a specific noting by the learned Special Judge that despite directing to cross-examine the witnesses, the learned

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counsel for the appellant failed to cross-examine P.W.1 to P.W.3, who are the victim and her parents.

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It is pertinent to note that the accused was initially represented by a counsel of his choice, who failed to proceed with the case in a proper manner and therefore at the request of accused, services of legal aid counsel was furnished to him but when P.W.1 to P.W.3 were examined, it is the counsel of accused of his choice failed to crossexamine P.W.1 to P.W.3.

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Therefore, contention urged on behalf of the appellant that there is a failure of concept of fair trial cannot be countenanced in law.

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The oral testimony of P.W.1 and P.W.2, who have deposed in line with the complaint averments with graphic details, is corroborated by the oral testimony of P.W.4.

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In fact, it is her report, which actually set the

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criminal law into motion. Mere fact that seminal stains and spermatozoa being not detected in the sample marked at Ex.P.5 cannot be a ground for acquittal of the accused, inasmuch as it is not the case of prosecution that the private part of the appellant, which was inserted into the private part of the victim girl. It is the finger of the appellant that was inserted into the private part of the victim girl.

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In this regard, it is just and necessary for this Court to cull out Section 3(b) of the POCSO Act, which reads as under:

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“3(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person;“

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On careful consideration of sub-section (b) of

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Section 3 of the POCSO Act, it is noticed that if any object or a part of the body, not being the penis of the accused,

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if inserted into the vagina or the urethra or anus of the child, it is considered as penetrative sexual assault which is punishable under Section 4 of the POCSO Act. But the child being aged about 7 years, the act committed by the accused though is only a penetrative sexual assault, under Section 5(m) of the POCSO Act, if the penetrative sexual assault has taken place on a child who is below 10 years, then it is deemed to be aggravated penetrative sexual assault resulting in commission of the offence under Section 5 of the POCSO Act which is punishable under Section 6 of the POCSO Act, wherein the minimum punishment is prescribed of 10 years.

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In the case on hand, P.W.1 being the minor, aged 7 years has been the victim of the penetrative sexual assault attributable to the appellant.

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Admittedly, appellant is a stranger to the victim girl and her parents. Soon after the incident, the victim girl raised hue and cry and on hearing the hue and cry,

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appellant escaped away from the scene of offence. Immediately, the victim girl as a natural consequence came home and reported the incident to her mother. Mother of victim girl without further waste of time, took the victim girl to Government Hospital, Yadagiri, wherein

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P.W.4 has examined the victim girl and sent the preliminary report vide Ex.P.4, which is the basis for the Shorapur Police to initiate the criminal action against the appellant.

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Therefore, from the above attendant facts and circumstances, this Court is of the considered opinion that all ingredients required to attract the offence under Section 6 of the POCSO Act have been established by the prosecution.

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The only legal infirmity that is now pointed out for the first time before this Court is the identity of the accused. Admittedly, no such ground was taken before the

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Trial Court when the accused was first produced before the

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learned Special Judge or at any time of the trial.

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P.W.5 is the doctor, who examined the accused

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to issue a Potency Certificate. Accused did not raise any objection before the doctor, who examined him that he is no way connected with the incident and therefore there was no nexus between the incident and him.

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An omnibus suggestion is made to the investigation officer P.W.12 that he has filed a false charge sheet against the accused cannot be treated as disputing the identity of the accused.

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Further, in the absence of cross-examination to P.W.1 which is the best opportunity for the accused to dispute the identity of the accused, having not taken place, on the act that has attributed to the counsel for the appellant, who was a private counsel appointed by the accused at the first instance to defend the matter, this Court is of the considered opinion that the alleged legal

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infirmity is not going to effect the well reasoned order by the learned Trial Judge in annulling the findings of guilt recorded by the Trial Judge in the impugned judgment.

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Thus, viewed from any angle, this Court is of the considered opinion that the impugned judgment is not suffering from any legality or procedural irregularity or perversity.

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In view of the foregoing discussion, point No.1

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is answered in the Affirmative and point No.2 in the Negative.

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Regarding point No.3:

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In the case on hand, the learned Trial Judge has awarded minimum punishment for the accused and also given the benefit under Section 428 of Cr.P.C. However, fine amount of Rs.50,000/- imposed on the appellant with default sentence of six months needs reconsideration having regard to the financial condition of the accused. Therefore, the fine is reduced from

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Rs.50,000/- to Rs.25,000/- and default sentence from six

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months to three months.

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Accordingly, point No.3 is answered partly in

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the Affirmative.

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Regarding point No.4:

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In view of the findings of this Court on point

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Nos.1 to 3 as stated above, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) While maintaining the conviction of the accused for the offences punishable under Section 376 read with Section 6 of the POCSO Act, the sentence of imprisonment ordered by the Trial Judge is hereby confirmed but fine amount is reduced from Rs.50,000/- to Rs.25,000/- with default sentence from six months to three months.

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