Mohammad Rafi @ Mohammad Rafeeq Nadaf Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 31.10.2022 AND ORDER ON SENTENCE DATED 04.11.2022 PASSED BY THE ADDL.DISTRICT AND SESSIONS JUDGE AND FTSC-I (POCSO), KALABURAGI IN SPECIAL CASE (POCSO) NO.27/2020 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 363 READ WITH 366(A), 342, 376(2) (i)(n), 506 OF IPC AND UNDER SECTION 6 OF THE POCSO ACT.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.03.2025 AT KALABURAGI BENCH, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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This appeal has been filed by the appellant being aggrieved by the judgment of conviction dated 31.10.2022 and order on sentence dated 04.11.2022 in Special Case (POCSO) No.27/2020 on the file of Additional District and Sessions Judge and FTSC-I (POCSO) at Kalaburagi.

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The ranks of the parties before the Trial Court will be considered henceforth for convenience.

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HC-KAR

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Factual matrix of the case:

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It is the case of the prosecution that, on 29.02.2020, the complainant filed a complaint stating that he was residing along with his family members, including the victim. On 27.02.2020, at about 05.00 p.m., he is stated to have received a message stating that his daughter was found missing from the house. After receiving the said information, he started searching the whereabouts of the victim along with his relatives. As they did not find the victim, he lodged a complaint before the respondent police against an unknown person. The respondent police, after receipt of the complaint, registered a case in Crime No.10/2020 for the offences under Section 366-A of IPC. After registering a case, the respondent police have secured the victim and she narrated the incident in the following manner.

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On 27.02.2020, the victim had been to school at about 10.00 a.m. When she had been to answer the nature call near the canal situated at the backside of her school, the accused came on his motorcycle bearing its registration

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HC-KAR

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No.KA-32-W-2754 and told her that he was loving her and asked her to accompany him to go to some place for the purpose of marriage. Even though the victim refused to accompany him, the accused gave a life threat and took her forcibly on his motorcycle and kept her in the house of Rahiman Makandar/CW.14, which is situated at the outskirts of the village. On the next day morning, at about 6.00 a.m., the accused came to the house and committed sexual assault on her. Thereafter, he took her on his motorcycle to Solapur and parked his motorcycle at a remote place, from there, he took her to Pune in the train. They went to Shiradi. In Shiradi, he is stated to have committed sexual assault. From Shiradi, they came back to Solapur and took the motorcycle of which he had parked there, and came to Kalaburagi on the motorcycle. When they were coming back to Kalaburagi near Savalagi cross, the police have apprehended the accused and rescued the victim.

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Based on the statement of the victim and also the complaint, the respondent - police have conducted the investigation and submitted the charge sheet.

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HC-KAR

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To prove the case of the prosecution, the prosecution examined 25 witnesses as PWs.1 to 25 and got marked 37 documents as Exs.P1 to P37 and also got marked 6 material objects as M.O.1 to M.O.6. The Trial Court recorded the conviction for the offences punishable under Sections 363 r/w 366(A),342, 376(2)(i)(n), 506 of IPC and Section 6 of the POCSO Act.

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Heard Sri.Mahantesh.H Desai, learned counsel for the appellant, Sri.Gopal Krishna Yadav, learned High Court Government Pleader for respondent No.1 and Sri.Rajesh Doddamani, learned Amicus Curiae for respondent No.2.

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It is the submission of learned counsel for the appellant that the judgment of conviction and order on sentence passed by the learned Sessions Judge is opposed to the law, facts and also the circumstances of the case and hence, the same is liable to be set aside.

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It is further submitted that the Trial Court has committed an error in convicting the appellant by considering the concocted story and also the evidence of the persons who are interested in the case. The Trial Court further relied

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HC-KAR

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on certain improvements, omissions and contradictions in the evidence of witnesses and recorded the conviction, which is erroneous and not proper.

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It is further submitted that the age of the victim ought to have been considered properly by the Trial Court. In fact, the medical evidence has not corroborated the evidence of the victim. To substantiate the rape or sexual assault, no struggle marks or signs of forcible sexual assault are found in the report.

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It is further submitted that there are no documents produced by the prosecution to substantiate that the victim was a minor girl as on the date of the alleged incident. The procedure which was required to be followed to demonstrate the age of the victim has not been proved properly. Therefore, the same is held to be contrary to the judgment of the Apex Court. Since the judgment of conviction is contrary to the dictum of the Apex Court, the same is liable to be set aside. Making such submissions, the learned counsel for the appellant prays to allow the appeal.

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HC-KAR

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Per contra, Sri.Rajesh Doddamani, learned Amicus Curiae for respondent No.2 vehemently opposed the submissions of learned counsel for the appellant and he further submitted that, the evidence of the victim has been corroborated by the facts and circumstances of the case. According to the victim, when she had been to attend the nature call near canal situated at the backside of her school, the accused forcibly took her on his motorcycle by threatening her and kept her in the house of P.W.16 by locking the said house and thereafter, on the following day, he is stated to have committed sexual assault on her. Thereafter, he took her to different places, namely, Solapur, Shiradi, etc. According to P.W.1, the accused again committed sexual assault at Shiradi. Thereafter, he took her back to Solapur, took his motorcycle and came back to Kalaburagi. The victim has narrated the said incident, not only, before the police, but also, before the learned Magistrate in the statement made under Section 164 of Cr.P.C. The evidence of the victim cannot be disbelieved, in the meantime, nothing has been elicited by the defence to contradict her

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HC-KAR

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evidence. Therefore, the conviction recorded by the Trial Court is just and proper. Interference with the said findings may not be necessary. Making such submissions, learned Amicus Curiae for respondent No.2 prays to dismiss the appeal.

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Similarly, the learned High Court Government Pleader for respondent No.1 adopted the arguments advanced by learned Amicus Curiae for respondent No.2 and he further submitted that the age of the victim has been proved by the prosecution on examining P.W.19, who was working as a Headmaster of the school in which the victim had studied. As per the documents, namely, Exs.P28 and P29, her date of birth was 29.04.2006. Therefore, nothing was required to be proved by the prosecution beyond the said documents. Hence, the findings of the Trial Court in recording the conviction is proper and just. Therefore, it is not appropriate to interfere with the said findings. Making such submissions, learned HCGP prays to dismiss the appeal.

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HC-KAR

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Heard, the learned counsel for the respective parties and perused the findings of the Trial Court in recording the conviction. The Trial Court, while assigning the reasons for conviction, opined that the prosecution has examined material witnesses, namely, the victim, her parents, panch witnesses, namely, P.Ws.3 to 9, the Doctor - P.W.10, P.W.12 - Scientific Officer. All these witnesses have supported the case of the prosecution. The Trial Court after appreciating the evidence of the victim and P.W.10 opined that, the age of the victim is 14 years, therefore, recorded the conviction. The said conviction, whether or not is proper, is the moot question to be answered.

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Now, it is relevant to have a look upon the evidence of all the material witnesses. The victim and the Doctor are the material witnesses as per the findings of the Trial Court. Be that as it may, the entire case is based on the evidence of the victim and the same has been corroborated by the evidence of the Doctor, who examined the victim. According to the victim, she was kidnapped by the accused on 27.02.2020 around 12.00

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HC-KAR

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p.m., when she had been to attend a nature call behind her school. She further deposed that she was kidnapped by the accused on the motorbike along with another person. However, the person who was riding the motorbike was neither examined as a witness nor arrayed as an accused. She further deposed that she was confined in the shed put up in the agricultural land. She had been subjected to sexual assault on the following day.

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However, she further deposed that the appellant had committed sexual assault in the house of P.W.16. Further, P.W.16 has turned hostile and he has deposed before the Court that neither the victim nor the appellant had been to his house.

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The victim further deposed that the appellant and herself had been to Shiradi temple, where they hired a room in the lodge and she had been subjected to sexual assault in Shiradi. However, the Investigating Officer has not conducted any mahazar relating to the incident stated to be held at Shiradi.

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HC-KAR

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Having considered all the facts and circumstances of the case, it appears that the evidence of the victim is not believable and there are some inconsistencies, improvements in her evidence. Under such circumstances, the Court has to look for corroboration. Except the evidence of the victim, none other witnesses have spoken about either the kidnap or the sexual assault. In such a situation, it would be very difficult to sustain the conviction. In such a way, the Trial Court ought to have dealt with it. However, the impugned judgment is passed, which is required to be set aside.

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In the light of the observation made above, I proceed to pass the following:

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ORDER

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i) The appeal is allowed.

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ii) The judgment of conviction dated 31.10.2022 and order on sentence dated 04.11.2022 passed in Special Case (POCSO) No.27/2020 by the Additional District and Sessions Judge and FTSC-I (POCSO) at Kalaburagi, is set aside.

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HC-KAR

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iii) The accused is acquitted for the offences punishable under Sections 363 r/w 366(A),342, 376(2)(i)(n), 506 of IPC and Section 6 of the POCSO Act.

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iv) The Registry is directed to communicate this order to the concerned jail authority forthwith.

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v) Bail bonds executed if any, stands cancelled.

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vi) The assistance rendered by the learned Amicus Curiae is appreciated. The same is placed on record. The Legal Services Authority is directed to pay remuneration of Rs.5,000/- (Rupees Five Thousand only) to the learned Amicus Curiae for his effective assistance forthwith.

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Sd/(S RACHAIAH) JUDGE

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UN,

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List No.: 19 Sl No.: 2

Mohammad Rafi @ Mohammad Rafeeq Nadaf v. the State of Karnataka

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Mohammad Rafi @ Mohammad Rafeeq Nadaf v. the State of Karnataka

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