Rakesh Vs the State by

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 18.12.2017 AND ORDER OF SENTENCE DATED 19.12.2017 PASSED BY THE SPECIAL II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C.(POCSO) NO.42/2016 - CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376 AND 506 OF IPC AND SECTIONS 5(l), 5(j)(ii) AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT.

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IN CRL.A NO. 247/2019

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BETWEEN:

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SRI SANTHOSH S/O HUCHAPPA AGED ABOUT 23 YEARS OCCUPATION : COOLIE RESIDENT OF BOMMENAHALLI VILLAGE HOLALKERE TALUK

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CHITRADURGA DISTRICT - 577 526. ...APPELLANT

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(BY SRI.SRINIVAS N., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY HOLALKERE POLICE STATION CHITRADURGA DISTRICT – 577 526

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SMT. B.L. KAVYA D/O LAKKAPPA AGED ABOUT 21 YEARS R/O BOMMENAHALLI VILLAGE

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HC-KAR

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HOLALKERE TALUK

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CHITRADURGA DISTRICT - 577 526 … RESPONDENTS

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(BY SRI. VIJAYAKUMAR MAJAGE SPP II., ADVOCATE FOR R1; SRI. N.S. SAMPANGI RAMAIAH., ADVOCATE FOR R2)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 18.12.2017 AND ORDER OF SENTENCE DATED 19.12.2017 PASSED BY THE SPECIAL II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C.(POCSO)NO.42/2016 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376 AND 506 OF IPC AND SECTIONS 5(l), 5(j)(ii) AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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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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These appeals arise out of judgment and order of

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conviction and sentence passed against the appellants in Spl.C.(POCSO)No.42/2016 on the file of II Additional District and Sessions Judge , Chitradurga.

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Appellants in Crl.A.No.247/2019 and

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Crl.A.No.314/2018 were Accused Nos. 1 and 2 respectively in Spl.C.(POCSO)No 42/2016. They were tried in that case for the offences punishable under Sections 376, 506 of IPC and

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HC-KAR

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Sections 5(l), 5j(ii) and 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') on the basis of charge sheet filed by Holalkere Police Station.

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Case of the prosecution in brief is as follows;

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(i) In the year 2015 the victim/ PW.1 was aged about 16

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years. Accused No.1 was her cousin brother and accused No.2 was co-villager. When PW1's parents were absent, accused Nos. 1 and 2 committed aggravated sexual assault on her in her house situated at Bommenahalli village of Holalkere Taluk, Chitradurga District. Further the accused had threatened her that, if she reveals their abuse to anybody they would kill her. Consequent to such abuse she became pregnant. Her father/PW4 was working in Saasthana village, Udupi District and her mother also frequently visited that place. On complaint of stomachache by the victim, she was taken to Community Medical Centre, Bramhavara. PW.5/Gynecologist of the said hospital on examining the victim revealed that she is pregnant. PW.1 gave birth to a male child on 18.11.2015.

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(ii) For further management, PW.1 was sent to Udupi Government Hospital. On the basis of the medico-legal intimation sent by PW.5, Women Assistant Sub Inspector of

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HC-KAR

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Kota Police Station visited the hospital and recorded the statement of PW.1 as per Ex.P23. Based on such information Sub Inspector registered FIR in Crime No.245/2015. Investigation was conducted initially against accused No.1. During the course of investigation, on further statement said to have been made by PW.1, accused No.2 was also implicated in the case. On investigation, charge sheet was filed against both accused for the aforesaid offences.

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During the trial, appellants were in custody. The Trial Court on hearing the parties, framed the charges against accused for the offences punishable under Sections 376 and 506 of IPC, Sections 5(l), 5j(ii) and 6 of POCSO Act and trial was conducted.

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In support of the case of prosecution, PWs.1 to 23 were examined and Exs.P1 to 35 were marked. On request of the accused, Ex.P35/ossification test report was summoned and marked. After their examination, accused did not lead any defence evidence under Section 313 of Cr.P.C .

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The Trial Court on hearing the parties by impugned judgment and order held that prosecution has proved the

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HC-KAR

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charges brought against the accused beyond reasonable doubt and evidence led by the prosecution is acceptable one. Trial

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Court by the impugned judgment and order convicted the appellants. For the major offence i.e., under Section 376 IPC and Sections 5(l), 5(j)(ii) and 6 of POCSO Act the appellants are sentenced to life imprisonment and fine of Rs.30,000/- and for the offence under Section 506 of IPC they are sentenced to imprisonment of two years and fine amount of Rs.5,000/-.

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Appellants have challenged the said judgment and order in these appeals on the grounds that;

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(a) The age of the victim being less than 18 years was not proved;

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(b) The evidence adduced by prosecution with regard to involvement of accused No.2 was unacceptable;

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(c) So far as accused No.1, the victim's own statement before PW.5 reveals that said relationship was consensual;

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(d). The Trial Court has committed gross error in appreciating all the evidence holistically and law applicable.

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HC-KAR

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Learned SPP and Sri.N.S. Sampangiramaiah, learned Amicus Curiae support the impugned judgment on the ground that the evidence of the victim is consistent and that was further corroborated by the evidence of her parents, medical evidence and other evidence on record. The fact of victim delivering a child is also not disputed. The age of the victim was proved by evidence of her mother PW.9. Under such circumstances, the presumption under Sections 29 and 30 of the POCSO Act was not rebutted by the prosecution.

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Considering the submissions of both side and

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examining the material on record, the question that arises for determination is;

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"Whether impugned judgment and order of conviction and sentence is sustainable"?

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ANALYSIS:

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There is no dispute that PWs.4 and 9 are the

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parents of PW.1 and accused No.1 was cousin brother of PW.1. It is also not in dispute that PW.1 became pregnant and delivered a male child on 18.11.2015 in Community Medical Centre, Bramhavara and PW.5 had attended PW.1. Considering the medical condition of PW.1, after delivery PW.5 referred her

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HC-KAR

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to Udupi Hospital for further treatment and she was treated there.

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The two prime questions the prosecution was required to establish beyond reasonable doubt were as follows;

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(i) As on 2015, whether the victim was aged 16 years? (ii) Whether accused Nos.1 and 2 have committed aggravated sexual assault on her?

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Reg. Age of PW.1:

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When the prosecution claimed that during the

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relevant time i.e., in the year 2015, the victim was aged 16 years or minor, the burden to prove the said fact was on the prosecution.

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Hon'ble Supreme Court in the case of MAHADEO S/O KERBA MASKE VS. STATE OF MAHARASHTRA¹ P. YUVAPRAKASH VS. STATE REP. BY INSPECTOR OF POLICE² have held that in assessing the age of both the juvenile victim as well as the juvenile in conflict with law, the norms prescribed under Rule 12 of the Juvenile Justice (Care and Protection of

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1 (2013) 14 SCC 637

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2 2023 SCC Online SC 846

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Children) Rules, 2007 (for short the 'Rules 2007') have to be followed.

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14. The Hon’ble Supreme Court in para 12 of judgment

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in Mahadeo’s case, referred to supra held as follows:

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12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:

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" 12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

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(a) (i) the matriculation or equivalent certificates, if available ; and in the absence whereof;

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(ii) the date of birth certificate from the school (other than a play school) first attended ; and in the absence whereof;

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(iii) the birth certificate given by a corporation or a municipal authority or a panchayat ;

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Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining

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the age of a victim as well .”

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(Emphasis supplied)

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As per the aforesaid judgment, to prove the age, the prosecution is required to produce first the matriculation or equivalent certificate of the victim. If the same is not available, then the date of birth certificate from the school first attended by the victim and in the absence of that the birth certificate issued by the local authority i.e., the Municipal Corporation or Panchayat. Only if none of them are available ossification test shall be conducted.

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In view of such law laid down to prove age of the victim, prosecution was required to produce the matriculation or equivalent certificate. In the absence of that birth certificate from school first attended or in the absence of that birth certificate issued by the local body had to be produced. In the absence of any of such records Investigation Officer had to refer for ossification test of victim.

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In this case. PW.1/victim herself stated that her date of birth is 10.01.1997 and as per school records shown to her which is subsequently marked as Ex.P17 her date of birth is 10.01.2002. In her cross-examination she stated that her parents gave her date of birth as 10.01.2002 approximately as both of them were illiterates. No doubt, PWs.4 and 9 the

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parents in their evidence tried to say that victim was minor. To prove her age, Investigation Officer did not summon the admission register extract of first attended school. Ex.P17 states that victim was admitted to Government School, N.G.Halli. Clause 13 of the said document itself states that before that she had studied in Government Higher and Primary School, N.G. Halli, Investigation Officer does not explain what was his difficulty in not collecting the date of birth proof from first attended school.

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To improbabalise the case of the prosecution with regard to age of the victim, the accused summoned Ex.P35. The evidence of PW.22 coupled with Ex.P35 show that the Investigation Officer had referred the victim for ossification test, on conducting such ossification test, report Ex.P35 was submitted to him. However, he did not include the same in the charge sheet records submitted to the Court. He admits that he has received Ex.P35. Though author of Ex.P35 was cited as CW.16, he was not examined. As per Ex.P35 the victim's age as on 11.12.2015 was shown as more than 18 years.

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The Trial Court failed to notice all these material contradictions in the prosecution's own evidence and failed in

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following the judgments of the Hon'ble Supreme Court and Rule 12 of the Rules 2007. Therefore, finding of the Trial Court with

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regard to minority of PW.1 are contrary to the evidence on record and judgments of the Hon'ble Supreme Court in cases of Mahadeo and P. Yuvaprakash referred to supra . The said finding needs to be reversed.

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Reg. Aggravated sexual assault by accused Nos. 1 and 2:

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Admittedly after PW.5 examining the victim and after receiving the medical report, Police registered the case. Before PW.5, PW.1 implicated accused No.1 as perpetrator of the offence. She did not whisper anything about accused No.2. Subsequently her first statement was recorded by Investigation Officer on 18.11.2015 as per Ex.P.23, there also she implicated only accused No.1. On 10.12.2015 the Investigation Officer stated to have recorded further statement of PW.1 as per Ex.P18, where for the first time she substitutes the perpetrator from accused No.1 to accused No.2. Subsequent to Ex.P18, on the same day, statement of the victim as per Ex.P.27 stated to have been recorded by the jurisdictional Magistrate. In that statement also she gives total go-bye about the acts of accused No.1 and implicates accused No.2 alone.

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Ex.P1 is the spot mahazar stated to have been conducted on 10.12.2015 after registering the FIR. In that document victim has only implicated accused No.1. She stated to have shown place of offence stating that accused No.1 subjected her to sexual assault in that place. Admittedly, the Investigation Officer had referred the samples of accused No.1, victim and child for DNA test. Ex.P26/DNA Test report excluded accused No.2 for being biological father of child whereas Ex.P26 states accused No.1 was biological father of the child.

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As per Ex.P8/wound certificate of victim issued by PW.5 with clearly shows that the victim revealed before PW.5 that herself and accused No.1 were in a relationship since about one year prior to 18.11.2015. It was also revealed that he absconded since Ugadi festival time of 2015. Ex.P8 came into existence at the earliest point of time where there was no scope for manipulation/fabrication. This inconsistency insofar as involvement of accused No.2 was not explained by the prosecution.

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Hon'ble Apex Court in the case of Oriental Insurance Company Ltd vs. Premlatha Shukla and others³ has

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3 (2007) 13 SCC 476

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held that if a document is admitted on behalf of a party, such party cannot ask the Court to rely only on one part of the document which goes in their favour. It was held that parties cannot approbate and reprobate. Evidence of accused No.2 is that accused No.1 is responsible for birth of the child and he was falsely implicated in this case. Since the foundation regarding the involvement of accused No.2 is shaky, the judgment and order against accused No.2 was unsustainable.

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Above discussion shows that Trial Court has failed to appreciate the evidence judiciously and in accordance with the principle that prosecution has to prove itself beyond reasonable doubt. So far as accused No.1, as already noticed the fact of victim being below 18 years was not proved beyond reasonable doubt. Further prosecution's own record/Ex.P18 and evidence of PW.5 show that the relationship between victim and accused No.1 was consensual one. Even to invoke Section 376 of IPC against accused No.1, the alleged act of sexual intercourse must be against the will of the victim. As evidence of PW.5 and Ex.P8 improbabilized the fact of accused No.1 committing forceful sexual assault intercourse, Section 376 of IPC cannot be invoked against accused No.1.

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HC-KAR

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So far as presumption under Sections 29 and 30 of POCSO Act, it is settled principles of law that such presumption could be raised only on prosecution discharging its initial burden of proof with regard to age of victim and assault on her. Since the age of victim was not proved, Sections 29 and 30 of the POCSO Act cannot be invoked.

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It is unfortunate case that though the prosecution

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had not proved its case beyond reasonable doubt, the accused No.2 who is aged hardly 22 years at the time of incident, had to suffer incarceration of more than nine years. The impugned judgment and order of conviction and sentence is unsustainable. The same is liable to be set aside. Hence, the following:

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ORDER

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(i) The appeals are allowed.

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(ii) The impugned judgment and order of conviction and sentence in Spl.C.(POCSO) No.42/2016 passed by II-Additional District and Sessions Judge, Chitradurga is hereby set aside.

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(iii) Appellants/accused Nos.1 and 2 are acquitted of the charges for the offences punishable under Sections 376, 506

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