Sanjeev Paul Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 23.01.2025 AND SENTENCE DATED 23.01.2025 PASSED BY THE LEARNED ADDL. CITY CIVIL AND SESSIONS JUDGE (FTSC-IV) AT BANGALORE IN SPL.C.C.NO.204/2017 FOR THE OFFENCE P/U/S 376(2)(f) AND (n) OF IPC AND SEC. 5(I), 5(n) R/W SECTION 6 OF POCSO ACT, 2012 AND ACQUIT 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 S RACHAIAH

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HC-KAR

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ORAL JUDGMENT

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This appeal has been filed by the appellant / accused No.1 being aggrieved by the judgment of conviction and order on sentence dated 23.01.2025 in Spl.C.C No.204/2017 on the file of the learned Additional City Civil and Sessions Judge, FTSC-IV at Bengaluru, wherein accused No.1 has been convicted for the offence punishable under Section 376(2) (f) and (n) of Indian Penal Code (for short ‘IPC’) and Sections 5(l), 5(n) r/w Section 6 of the Protection of Children from Sexual Offenses Act, 2012 (for short ‘POCSO Act’).

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The ranks of the parties in the Trial Court henceforth will be considered as per their rankings in the Trial Court.

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Factual matrix of the case is as under:

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The case of the prosecution is that accused Nos.1 and 2 are the husband and wife. Both were residing at Bengaluru. Accused No.3 is the father of the victim and he is the cousin brother of accused No.2. The victim was

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brought to Bengaluru to take care of the children of accused Nos. 1 and 2. Accused No.2 was working as a sales girl and she used to go to work in the morning and was returning home at about 9.00 p.m. Her husband, who is accused No.1, was remaining at home and doing the work of preparing food as a caterer.

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It is further stated that the victim girl was not only taking care of children of accused No.2, but also she was working as a maid. It is further stated that she has been subjected to sexual assault by accused No.1 on several occasions. In spite of brining the said fact to the notice of accused No.2, accused No.2 did not respond properly. Therefore, it is stated that on 22.12.2016, the victim left the house and boarded the bus to escape from the house of accused No.2. As the victim could not say anything to the bus conductor and also she did not have money to go to her native, the conductor took her to the nearest police station. Later, the police have taken her and joined her to Balakiyara Bala Mandira. In the meantime, accused No.2 had lodged a missing complaint

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of the victim with Baiyappanahalli police station on 29.12.2016.

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It is further stated that, based on the complaint, the police have registered a case in Cr.No.362/2016. On 09.01.2017, the statement of the victim was recorded, thereafter, the victim was handed over to accused Nos.1 and 2.

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It is further stated that Ms. Shanta Mallige, who was working in the said Balakiyara Bala Mandira, had called Byappanahalli Police Station and informed about sexual harassment committed to the victim by accused No.1. Again, the victim girl was secured and she was produced before the learned Magistrate to record her statement under Section 164 of Cr.P.C. Accordingly, FIR in crime No.26/2017 was registered against accused Nos.1 to 3. Based on the statement of the victim, investigation was conducted and charge sheet was submitted.

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In order to prove the case of the prosecution, the prosecution examined 9 witnesses as P.W.s.1 to 9 and

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got marked 15 documents as Exs.P.1 to 15 and also identified five material objects as M.Os.1 to .5.

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On the contrary, the defence got examined three witnesses as D.Ws.1 to 3 and got marked 8 documents as Exs.D.1 to 8. The Trial Court after considering the oral and documentary evidence on record, recorded the conviction.

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Heard Sri. Rakshith.R, learned counsel for the appellant and Smt. Pushpalatha.B, learned Additional State Public Prosecutor for respondent No.1 – State.

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It is the submission of learned counsel for the appellant that the victim girl initially, had left the house of accused Nos.1 and 2. On a complaint having been lodged, the victim was secured and her statement was recorded. In her statement recorded under Section 164 of Cr.P.C., she did not disclose about sexual harassment. However, under the instigation of Ms. Shanta Mallige who was working in the Balakiyara Bala Mandira, the victim has resiled her earlier statement and made a statement against accused No.1 which is contrary in nature.

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However, the said contradiction has been ignored by the Trial Court, consequently, the impugned judgment is passed which is required to be set aside.

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It is further submitted that the age of the victim is stated to be 12 years. However, no documents are produced to demonstrate her actual age. Though the age is disputed, the Trial Court has not considered the said aspect in accordance with law.

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It is further submitted that in fact, the evidence of P.W.9, who was working as a Head Master of G.H.P.S, Kodathi, would indicate that the age of the victim has been determined on the basis of the application given by the parents. The parents of the victim have neither produced any birth certificate nor any other relevant document to show that she is aged about 12 years. Therefore, the conviction recorded by the Trial Court is contrary to the law laid down by the Hon'ble Supreme Court. Hence, the conviction is liable to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal.

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Per contra, learned Additional State Public Prosecutor for respondent No.1 – State vehemently submitted that P.W.1 – victim has stated in her evidence that she had been subjected to sexual assault. Though she had brought to the notice of accused Nos.2 and 3 about the said incident, they did not take suitable action against accused No.1 by taking her to the competent Authority. Therefore, the case against all the accused has been proved properly. The Trial Court has rightly recorded the conviction. Therefore, interfere with the findings of the Trial Court is not required. Making such submissions, learned Additional State Public Prosecutor for respondent No.1 – State prays to dismiss the appeal.

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Having heard learned counsel for the respective parties and on perusal of findings of the Trial Court, it is relevant to take note of the evidence of all the witnesses for the purpose of re-appreciation.

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P.W.1 who the victim girl has supported the case of the prosecution.

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P.W.2 – Bhavana Chiranjay has been appointed as support person by the Child Welfare Committee (CWC) to support the victim girl.

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P.W.3- Dr.T. Arul Das, conducted radiological examination of the victim and submitted his report as per Ex.P5. As per the said report, the age of the victim girl is more than 14 years and less than 16 years.

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P.W.4 - Dr. Spandana, Senior Medical Officer at Bowring Hospital, conducted medical examination of the victim girl. She stated in her evidence that there were no external injuries found on the victim, however, the hymen was not intact. According to the Medical Officer, the victim had been subjected to sexual assault.

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P.W.5 – Mr. Dharmarao, Head Constable of Byappanahalli Police Station stated in his evidence that he had registered a missing complaint lodged by accused No.2 on 29.12.2016. On the basis of the said information, he had registered FIR in Crime No.362/2016 for the offence under Section 363 of IPC.

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P.W.6 – Mr. Hombalaiah, Police Sub Inspector, stated in his evidence that he had conducted a partial investigation. He received a complaint as per Ex.P2 and registered FIR in Crime No.26/2017 as per Ex.P8.

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P.W.7 – Mr. Ganapathi R.L., Investigating Officer has stated in his evidence that he had also conducted a partial investigation.

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P.W.8 - Ramesh G.T, Police Officer deposed in his evidence that he had obtained a Medical Examination Report as per Ex.P.6 and also collected the FSL report as per Ex.P.12 and handed it over to the Investigating Officer.

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P.W.9-Vanitha.K., in-charge of Head Master, Government School, submitted the Report as per Ex.P15. According to her, the date of birth of the victim girl is 01.01.2007.

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D.W.1 in her examination-in-chief has stated that she was living along with her husband in the address stated supra. The victim girl was brought to Bengaluru to take care of her children. The victim had step-mother, as the

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step mother was not taking care of victim properly, accused No.3 had sent her to her house.

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It is further stated that her husband was working as a Security at Indiranagar and she denied the entire allegations made by the victim against her husband.

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D.W.2 and D.W.3 are the witnesses, who were stated to be the neighbours, have deposed that accused No.1 was working as a watchman. He used to go to work on everyday. Though, they have been cross-examined at length, nothing has been elicited to support the case of the prosecution.

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On careful reading of the evidence of all the witnesses, now, it is relevant to refer the age of the victim, which is relevant to the case.

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P.W.1 is the victim. According to the prosecution, the Admission Register Extract is produced as per Ex.P15. P.W.9 had deposed in her evidence that the date of birth of the victim is 01.01.2007. The Doctor, who conducted radiological examination, had submitted the Age

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Estimation Certificate as per Ex.P5. As per the said document, the age of the victim is above 14 years and less than 16 years.

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Now, it is relevant to refer the judgment of the Hon'ble Supreme Court in the case of P.Yuvaprakash v. State Rep. by Inspector of Police¹ . The Hon'ble Supreme

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Court held in paragraph No.19, which reads as under:

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“19. It is clear from the above narrative that none of the documents produced during the trial answered the description of “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating “that the age of the said girl would be more than 18 years and less than 20 years”. In the cross-examination, she admitted that M's age could

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1 2023 SCC OnLine SC 846

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be taken as 19 years. However, the High Court rejected this evidence, saying that “when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor”. This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94(2)(i) mandates; nor are they in accord with Section 94(2)(ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.”

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On careful reading of the judgment of the Hon'ble Supreme Court, it is relevant to mention that the age of the victim has to be determined as per the ratio laid

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down by the Hon’ble Supreme Court. In the present case, the age of the victim, though it is stated to be 12 years, no relevant document is produced to substantiate the same. However, the radiological test would indicate that the age of the victim is more than 14 years and less than 16 years. As per the evidence of PW9, the document indicates the age of the victim on the basis of statement of the father of the victim. Therefore, I am of the considered opinion that the age of the victim has not been proved properly by the prosecution and the Trial Court has not appreciated it appropriately.

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Now, it is relevant to refer the evidence of P.W.1. PW1 stated to have been eloped from the house of accused No.2, she was secured by the conductor and handed over to the police. The police, in turn handed over her to Balakiyara Balamandira. In the meantime, on the basis of missing complaint lodged by accused No.2, she was secured by the police and her statement under Section 164 of Cr.P.C., was recorded. In the said statement, she did not disclose anything about the sexual harassment by accused No.1.

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However, on the basis of the complaint filed by the worker namely Smt. Bhavana Chiranjay, the Baiyappanahalli police station again, secured the victim and produced before the Magistrate to record her statement under Section 164 of Cr.P.C In the said statement she has resiled her earlier statement and made certain allegation against accused No.1 regarding sexual harassment. Therefore, accused No.1 and other two accused have been implicated in this case.

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On reading of the evidence and also the statement given before the learned Magistrate, it appears that, she is not a witness of trustworthy. When the case is based on the evidence of sole prosecutrix, the Court has to consider the evidence of the said prosecutrix, if it inspires the confidence of the Court. However, in this case, as there are two contradictory statement made by the victim in respect of alleged incident, the benefit of doubt should have been extended in favour of the accused. Having failed to extend of the benefit, resulting in passing the impugned judgment, which is construed as miscarriage of

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justice. Therefore, the judgment of conviction passed by the Trial Court is liable to be set aside. Hence, I proceed to pass the following:

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ORDER

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(i) The Criminal Appeal is allowed.

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(ii) The judgment of conviction and order on sentence dated 23.01.2025 passed in Spl.C.C No.204/2017 by the Additional City Civil and Sessions Judge, FTSC-IV at Bengaluru, is set aside.

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(iii) The appellant/accused No.1 is acquitted for the offence punishable under Section 376(2) (f) and (n) of IPC and Sections 5(l), 5(n) r/w Section 6 of POCSO Act.

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(iv) Bail bonds executed, if any, shall stand cancelled.

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(v) The Registry is directed to communicate this order to the concerned jail authority.

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Sd/(S RACHAIAH) JUDGE

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UN/NM/JS List No.: 1 Sl No.: 44

Sanjeev Paul v. State of Karnataka

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Sanjeev Paul v. State of Karnataka

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