Mahesha Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 07.12.2017 PASSED BY THE I ADDITIONAL DISTRICT AND

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SESSIONS JUDGE AND SPECIAL JUDGE, SHIVAMOGGA IN S.C.NO.211/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(n) AND 506 OF IPC AND SEC. 5(j)(ii) AND (1) R/W SEC. 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT.

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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 MRS. JUSTICE K.S.MUDAGAL and

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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 S.C.No.211/2013 on the file of I Addl District and Sessions Judge & Special Judge, Shivamogga, has preferred this appeal.

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The appellant was tried in SC No.211/2013 for the charges for the offences punishable under Sections 376(2)(n) and 506 IPC and Sections 5(j)(ii) and 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) on the basis of the charge sheet filed by Ripponpet Police of Shivamogga District in Crime No.178/2013 of their police station. Said case was registered on the basis of Ex.P1/the complaint filed by PW.1. For the purpose of

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convenience, the parties are referred to henceforth according to

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their ranks before the Trial Court.

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The case of the prosecution in brief is as follows.

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i) PW.3/victim girl was aged 16 years, PW.1 is her

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elder sister. As the parents of PWs.1 and 3 were not alive, both of them were living with PW.4/their senior aunt. The accused was relative of PWs.1, 3 and 4. PWs.1 and 4 used to go for coolie work and PW.3 used to stay alone in the house. Accused was a widower. Taking advantage of PW.3 being alone in the house, he visited their house multiple times and committed aggravated sexual assault on PW.3. He threatened the victim not to reveal the incident to others. Consequently, to the acts of the accused, victim conceived. Noticing that the victim was dull, she was taken to PW.5/doctor at Melige Hospital of Thirthahalli. On conducting tests on her, PW5 revealed that victim is pregnant. On enquiry by PWs.1 and 4, the victim revealed the fact of accused sexually abusing her and she not revealing the same due to his intimidation.

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ii) Then PW.1 filed complaint as per Ex.P1 based on which PW.11/PSI of Ripponpet Police Station registered FIR/Ex.P15 and arrested the accused. PW.8/CPI took up further

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investigation, subjected the victim and the accused to medical

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examination and conducted substantial part of the investigation. PW.10 took up further investigation, collected FSL report and filed the charge sheet against the accused for the offences punishable under Section 376(2) and 506 IPC and Section 4 of the POCSO Act.

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The Trial Court, on hearing the parties initially on 15.02.2014 framed the charges against the accused for the offences punishable under Sections 376(2)(i) and 506 IPC and Section 4 of the POCSO Act. Subsequently, Trial Court by order dated 08.09.2017, altered the charge to invoke the offences under Sections 376(2)(n) & Sections 5(j)(ii) and (l) read with Section 6 of the POCSO Act. The accused denied the charges and claimed trial. Therefore, trial was conducted.

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In support of the case of the prosecution, PWs 1 to 11 were examined, Exs.P1 to P15 were marked. The trial Court examined the accused under Section 313 Cr.P.C. He did not adduce any defense evidence.

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The trial Court on hearing the parties by the impugned judgment and order has held that the charges against the accused were proved by the evidence of the

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prosecution. The trial Court has convicted and sentenced him

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for the different terms of sentence as follows:

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Sl. No.	Offences under Sections	Sentence	Fine Amount in Rs.	Defau Sente	lt nce
1	366 of IPC	RI for five years	5,000/-	SI for year	one
2	506 of IPC	RI for one year	-	-
3	5(j)(ii) & 5(l) r/w Section 6 of POCSO Act	RI for life	30,000/-	SI for year months	one four

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The accused has challenged the said order in the above appeal.

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Submissions of Sri Diwakara, learned Senior Counsel appearing for Adithya D, learned Counsel on record :

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The victim being juvenile was not proved in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Rules as per several precedents of the Hon'ble Supreme Court. Once the minority of PW.3 is not proved, as per the prosecution itself, the alleged sexual abuse was for 15 times over a period of around 8 months, victim had not revealed the same to anybody. Even before the doctor she did not name the accused. That leads to the inference that relationship was consensual one. The victim herself in her deposition stated that she has not given

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statement before the Investigating Officer that she was intimidated by the accused, therefore, the charge for the offence under Section 506 IPC or the allegation that she had concealed the fact of the alleged sexual abuse due to the threats of the accused does not sustain. In the alternate, if the Court holds that the accused has not rebutted the presumption under Section 114A of the Indian Evidence Act, 1872 (‘Evidence Act’ for short), as the accused has already undergone 9 years’ imprisonment, considering the facts and circumstances of the case, sentence be reduced to minimum prescribed period.

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In support of his submission, he relies on the

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following judgments:

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Ashwani Kumar Saxena V. State of Madhya Pradesh¹

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Rishipal Singh Solanki V. State of Uttar Pradesh and Ors.²

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P.Yuvaprakash V. State Rep. by Inspector of Police³

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Submission of Sri Vijaykumar Majage, learned Special Public Prosecutor for Respondent No. 1 and Sri M.Venkatesh, learned counsel for respondent No.2/victim :

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The age of the victim was proved by the evidence of

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PW.6/Assistant Headmaster and PW.4/aunt of the victim. The

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1 (2012) 9 SCC 750

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2 (2022) 8 SCC 602

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3 2023 SCC OnLine SC 846

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accused himself in the cross examination has suggested that the sexual relationship was consensual one. Therefore, the presumption under Section 114A of the Evidence Act regarding absence of consent of the victim arises. It was for the accused to rebut the said presumption. He did not rebut the said presumption. Therefore, the impugned judgment and order of conviction and sentence do not warrant interference of this Court.

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On considering the submissions on both side and on examining the materials available on record, the question that arises for consideration is:

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“whether the impugned judgment and order of conviction and sentence is sustainable?”

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ANALYSIS

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According to the prosecution, victim/PW.3 was aged 16 years and the accused committed aggravated sexual assault on her multiple times. Further, the accused had intimidated the victim/PW.3 not to reveal the incident to others, therefore, for about 8 months she had not revealed the incident. Thus, according to the prosecution, the accused is guilty of commission of offence punishable under Sections 376(2)(n)

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and 506 of IPC and Section 6 of the POCSO Act. The prosecution therefore was required to prove beyond reasonable doubt that as on the date of the incident PW.3/victim was minor and the accused committed aggravated penetrative sexual assault on her and he criminally intimidated her as alleged.

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Reg. minority of the victim:

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To prove that the victim was aged 16 years, the prosecution examined PW.6/Assistant Headmaster, Government Higher Primary School, Huncha. He deposed that from 2007 to 2015 he was working as in-charge Headmaster of the said school and on requisition of the police and on examination of the school records, he issued Ex.P7/the certificate regarding the date of birth of the victim. As per the said records, he states that her date of birth is 13.10.1997. In the cross examination, he admits that in Ex.P7, it is not mentioned in which class the victim was studying. He states that victim’s date of birth was entered in Ex.P7 based on the transfer certificate.

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The larger Bench of Hon’ble Supreme Court in

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Mahadeo vs. State of Maharashtra⁴ has held that whenever question of determination of age of the victim arises, the same procedure as required for determination of the age of the child in conflict with law prescribed under Rule 12(3) of the Juvenile Justice (Care and Protection of children) Rules, 2007 has to be followed. Para 12 of the said judgment reads 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

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4 (2013) 14 SCC 637

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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 the age of a victim as well .”

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(Emphasis supplied)

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Reading of the above judgment shows that to prove the

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age of the victim, the prosecution is required to produce the matriculation or equivalent certificate of the victim, only in the absence of that the date of birth certificate from the school first attended has to be produced. In the absence of the same, birth certificate issued by the Corporation or Municipal Authority or Panchayat has to be produced. In the absence of the aforesaid 3 certificates, the ossification test has to be resorted to. The same view was taken by the latest judgment of the Hon’ble Supreme Court in P.Yuvaprakash’s case referred to supra .

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In this case, as per the prosecution, the victim was a drop-out from VI Standard, hence matriculation certificate will not be available. Then what was to be produced next was the birth certificate from the first attended school, other than the play school. The evidence of PW.6/Asst.Head master clearly

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shows that his school was not the first attended school of the victim. The Investigating Officer has not taken any steps to get the first attended school’s certificate and there is no explanation for such lapse. Apparently, birth certificate issued by the local authorities was not taken nor the victim was referred to ossification test. Therefore, the finding of the Trial Court based on the evidence of PW.6 and Ex.P7 regarding minority is contrary to the aforesaid judgment of the Hon'ble Supreme Court, hence unsustainable.

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Reg. aggravated sexual assault:

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Since the age of the victim was not proved, the

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charge under the POCSO Act does not sustain. Then the next question is whether there was forced sexual assault on the victim. The accused himself in para 4 of the victim's deposition has suggested that the victim was used to physical relationship with the accused. Thereby there is an admission on his own part that there was sexual relationship between him and the victim. Once such relationship is admitted, the presumption under Section 114A of the Evidence Act arises which states that

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once the sexual intercourse by the accused is proved, the question is whether it was without the consent of the woman

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alleged to have been raped and if such woman in her evidence deposes as such before the Court, the Court shall presume that she did not consent.

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In this case, the victim PW.3 in her deposition stated that the accused forcibly committed sexual intercourse and it was without her consent. Therefore, burden was on the accused to rebut the presumption under Section 114A of the Evidence Act. To rebut such presumption, the accused did not lead any evidence. The witnesses had denied his suggestion that such relationship was consensual one. At least in his statement under Section 313 Cr.P.C, the accused did not say that the relationship was consensual one. His explanation was that of total denial. Therefore, it could be stated without any hesitation that the accused has failed to prove the relationship was consensual one. The only suggestion of accused to PW.3 is that she was above 18 years. He did not even suggest what exactly was her age. The evidence on record shows that PW.3 had just attained adulthood. The evidence on record further shows that she had lost both parents at an early age. Her family had poor economic and social background. Merely because she did not reveal the incident to PWs 1 and 4, on first

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or second occasion, the girl of that age and background getting perplexed or confused in not acting like matured adult person is natural. Therefore, it cannot be said that she had exposure to understand the worldly affairs and she had consented for the acts of the accused. Therefore, the order of conviction of the accused for the offence under Section 376(2)(n) is sustainable. However, the only error in the order of sentence is quoting of Section 366 IPC. That has to be corrected appropriately.

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Reg. criminal intimidation:

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It was the case of the prosecution that the accused on committing rape each time, went on intimidating her of her life if she reveals the incident to others. Therefore, she did not reveal the incident to PWs.1 and 4. Hence, he was charged for the offence under Section 506 of IPC. The prosecution was required to prove that there was criminal intimidation to PW.3 In her chief examination PW.3 admits that the accused committed rape on her 10 to 15 times. In the chief examination she states that the accused was threatening her of life whenever she told him that she will reveal the incident to PW.1. She states that apprehending that he may cause harm to her sister also, she did not reveal the incident. In para No.6 of her

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deposition, she states that she has not stated before the police that the accused threatened her. She further states that she had not revealed the incident before the police apprehending that the accused may cause harm to PW.1. In the complaint Ex.P1 she has only stated that the accused threatened her not to reveal the incident to anybody. She does not state that he threatened of her life or life of her elder sister i.e. PW1. Though she denied her statement before the Investigating Officer regarding intimidation by the accused, neither the same was clarified by re-examination nor she was treated as hostile to that extent or her statement under Section 161 Cr.P.C was confronted to her to prove the same. Therefore, it becomes clear that the prosecution version that the accused had threatened PW.3 not to reveal the incident is not proved beyond reasonable doubt. Hence conviction for that offence does not survive. Irrespective of the charge under Section 506 of IPC being unsustainable, the fact remains that the accused failed to rebut the presumption under Section 114A of Indian Evidence Act regarding victim's consent, hence the charge under Section 376 of IPC sustains.

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Reg. the conviction and sentence:

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Once it is held that victim/PW.3 being below 18 years is not proved, the conviction and sentence for the offence under Sections 5(j)(ii) and 5(l) read with Section 6 of the POCSO Act, does not sustain. Hence, they need to be set aside.

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Though the trial Court convicted the accused under Section 376(2)(n) of IPC, the sentence is passed for the offence under Section 366 of IPC. That seems to be in all-probability typographical error, which the trial Court has not noticed. However, under Sections 5(j)(ii) and 5(l) he is sentenced for life imprisonment, but he should have been sentenced for 376(2)(n) of IPC.

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In view of the aforesaid discussion, the order of sentence under Section 5(j)(ii) and 5(l) read with Section 6 of the POCSO Act and Section 506 of IPC does not sustain. So far as the sentence for offence under Section 376(2)(n) the records show that the accused was aged 27 years. It is submitted that he is a widower and has 2 children. In view of his incarceration those children are suffering, he has no other criminal antecedents. Considering his educational, social and economical background and the fact that he has already

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undergone incarceration close to 9 years, it would be just to sentence him to the minimum punishment prescribed. Hence, the impugned judgment and order deserves to be modified only

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to that extent. For the aforesaid reasons, the following:

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ORDER

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i) The appeal is partly allowed.

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ii) The impugned judgment and order of conviction and sentence for the offences punishable under Sections 5(j)(ii) and 5(l) read with Section 6 of the POCSO Act and Section 506 of IPC are hereby set aside.

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iii) The impugned judgment and order of conviction for the offence under Section 376(2)(n) of IPC is confirmed. For the said offence he is sentenced to rigorous imprisonment for 10 years and fine of Rs.30,000/-. In default to pay the fine amount, he shall undergo SI for one year.

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The default sentence shall run consecutively. The Trial Court shall issue modified conviction warrant accordingly.

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Sd/(K.S.MUDAGAL) JUDGE

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

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AKC List No.: 1 Sl No.: 6

Mahesha v. the State of Karnataka

Case brief

What is this about?

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Mahesha v. the State of Karnataka

Case brief

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