Sri.v.Ashok Kumar Vs the State of Karnataka

THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET ASDIE THE IMPUGNED JUDGMENT AND SENTENCE DATED 09.05.2019 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR IN S.C.NO.118/2017, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 363, 376 OF IPC AND SECTION 6 OF POCSO ACT. THE ACCUSED IS SENTENCED TO UNDERGO S.I FOR A PERIOD OF SEVEN YEARS WITH FINE OF RS.2000/- FOR THE OFFENCE P/U/S 363 OF IPC IN CASE OF DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER

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HC-KAR

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IMPRISONMENT OF ONE MONTH. THE ACCUSED IS SENTENCED TO UNDERGO S.I FOR A PERIOD OF SEVEN YEARS WITH FINE OF RS.5000/- FOR THE OFFENCE P/U/S 376 OF IPC IN CASE OF DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO FURTHER IMPRISONMENT OF ONE MONTH.

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THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant being the accused in SC No.118/2017 on the file of the learned II Additional District and Sessions Judge, Kolar, is impugning the judgment of conviction and order of sentence dated 09.05.2019, convicting him for the offences punishable under Sections 363, 376 of the Indian Penal Code (for short 'the IPC') and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act) and sentencing to undergo simple imprisonment for a period of 7 years, and to pay a fine of Rs.2,000/- for the offence punishable under Section 363 of IPC, to undergo simple imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 376 of IPC, with default sentences.

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HC-KAR

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Brief facts of the case of the prosecution are that,

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the accused had kidnapped PW2 - the minor girl, when she had been to her college on 30.01.2017 at 7.30 am., with an intention to marry her. He had taken her to Hoskote and kept her in a small room. He has committed penetrative sexual assault repeatedly and thereby committed the offence punishable under Sections 363, 376 of IPC and Section 4 of the POCSO Act.

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The grandmother of the victim, lodged first information as per Ex.P1 on 01.02.2017, upon which, FIR was registered. The statement of the victim girl was recorded and after completing the investigation, the charge sheet came to be filed. The accused had appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 22, got marked Exs.1 to 27 and identified MOs.1 to 11 in support of its contention. The accused has denied all the incriminating materials available on record, but has not led any evidence in support of his defence. He got marked Exs.D1 and 2 during cross-examination of PW2. The Trial Court after taking into consideration all these materials on record, came to the

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conclusion that the prosecution is successful in proving the guilt of the accused for the aforesaid offences and accordingly, convicted the accused and sentenced him as stated above. Being aggrieved by the same, the accused is before this Court.

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Heard Sri.K.B.Monesh Kumar, learned counsel for the appellant and Smt. Rashmi Jadhav, learned ASPP for the respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

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My answer to the above point is in the 'Affirmative' for the following:

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REASONS

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The contention of the prosecution is that the accused had kidnapped the minor girl- PW2, when she had

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gone to her college, taken her to Hoskote, stayed there with her, and committed penetrative sexual assault repeatedly and thus committed the above stated offences.

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PW2 is the victim girl. She deposed before the Trial Court in her chief-examination and admits that she has given the statement as per Ex.P5 before the learned Magistrate, immediately after she was rescued. As per Ex.P5, the victim girl stated that during 2016, she was studying in I-PUC in PreUniversity College, Mulabagilu. She was in love with the accused. Her parents were trying to arrange the marriage against her wishes, with one Shrinivas. Since, her family members have decided to get her married to Shrinivas, she had gone with the accused during January 2017 and both of them were residing together. She married the accused in a temple at Hoskote and thereafter, they were having physical relationship, as a result of which, she became pregnant. She also states that

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she was not aware that since she was aged 17 years, was not aware that she was not suppose to have sexual relationship with the accused.

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When the victim girl is examined before the Trial

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Court as PW2, she states that she had been to Mulabagilu in a bus along with the accused, since they were college mates. It is pertinent to note that in the chief-examination, the witness never states anything to the effect that the accused had forcibly committed sexual assault on her.

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Ex.P5 - the statement of victim under Section 164 of Cr.PC and the chief-examination of PW2 - the victim girl discloses that PW2 voluntarily went along with the accused and willingly stayed with him and had physical relationship atleast for a period of 5 to 6 months. It is also pertinent to note that PW1 the grandmother of the victim had lodged the first information as per Ex.P1 on 01.02.2017. The victim and the accused were traced on 02.06.2017 and the victim was produced before the Court on 03.06.2017. PW2 during her cross-examination deposed before the Trial Court that when she was staying with the accused at Mulabagilu, she had called her father over phone thrice. But none of the family members have came to Mulabalgilu. All these facts and circumstances disclose that the family members of the victim were knowing

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that she had gone to Mulabagilu and staying there with the accused. The victim has never raised any alarm to draw the attention of any other person or complained that she was forcibly kidnapped or that the accused committed sexual assault against her will.

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PW10 is the Principal of college, where the victim was studying. He has produced Ex.P10 the copy of the transfer certificate pertaining to the victim, according to which, the date of birth of the victim girl is 10.01.2001. Considering the date of birth of the victim, she was aged 16 years at the time of commission of the offence.

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It is also pertinent to note that PW9 is the Principal of college, where the accused was studying and he produced Ex.P8, copy of the Admission Register of the accused, according to which, date of birth is 08.08.1998 that means to say, the accused was hardly 19 years at the time of commission of the alleged offence of kidnapping and sexual assault.

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The materials on record disclose that the victim is aged 16 years and the accused was aged hardly 19 years 5 months. They left the house, stayed together for about 6

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months, and when the family members of the victim were not bothered about her even though she states that she had called her father several times over phone, I am of the opinion that this incident is the result of an act committed by two adolescents without understanding its consequences. It is unfortunate to note that the accused who was hardly aged 19 years was made to languish in the jail. It is stated that, he is still in custody from the date of his arrest, it is unfortunate to note that the Trial Court without considering any of these facts, proceeded to convict the accused solely on the ground that the victim was aged 16 years and was minor at the time of commission of the offence. It has ignored the facts that the accused was also aged 19 years. He may be not in a position to understand the consequences of his acts, since he was also an adolescent.

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Ex.P5 - the statement of the victim recorded by the learned Magistrate under Section 164 of Cr.PC immediately after her rescue as referred to above speaks in volumes, as she has stated that she was in love with the accused. Since, her family members were thinking of marrying her to another

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person by name Shrinivas, she had gone with the accused voluntarily and had stayed with him. Her evidence before the Trial Court that she had called her father within five days after she had gone to Mulabagilu, and thereafter several times called over phone, for which she has not received any response from her family members, also supports such view that the victim and accused have gone to Mulabagilu and stayed there as husband and wife for about 5 months.

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It is one of those unfortunate instances which showcases the adverse impact of the POCSO Act where, an adolescent boy aged 19 years, accompanied the victim girl, who was also an adolescent aged 16 years willfully. It is a classic example of failure of the system in understanding the sexual urge of 2 adolescent college mates. At least after rescuing, they were in need of counseling by a professional. Unfortunately the teenagers have not received required family support and counseling. The college in which they were studying was also least bothered about the incident and not thought it fit to provide required handholding to the youngsters at the right time. The state has also not provided required

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counseling and rehabilitation to them. However, the girl is branded as the victim, who receives support from the system. Whereas the accused, who may be equally innocent, is branded as an offender and made to languish in prison for nearly 8 years. The Court can only imagine the plight of the accused, who was in prison for such long time. I wish he may not turn out to be a hardcore criminal, while coming out of the prison. Under such situation, the accused may be in need of rehabilitation.

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In this background, great responsibility lies on the Trial Court while, considering the bail application filed by the accused and also while considering the materials on record either to convict the accused. I am of the opinion that the Trial Court was not sensitive in the matter and proceeded to convict him ignoring the facts narrated above that both were adolescents and were college mates. It has also ignored Ex.P5 -

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the statement of the victim under section 164 Cr.PC. Therefore, I am of the opinion that the judgment of conviction and order of sentence passed by the Trial Court is liable to be set aside.

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Accordingly, I answer the above point in the

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Affirmative and proceed to pass the following:

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ORDER

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(i) Criminal appeal is allowed .

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(ii) The judgment of conviction and order of sentence dated 09.05.2019 passed in SC.No.118/2017 on the file of the II Additional District and Sessions

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Judge, Kolar , is hereby set aside.

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(iii) Consequently, the accused is acquitted for the offences punishable under Sections 363, 376 of the IPC and Section 6 of the POCSO Act, 2012.

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(iv) The bail bond of the accused and that of his sureties shall stand cancelled.

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(v) Fine amount, if any, deposited by the accused shall be refunded to him after the appeal period is over.

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(vi) The appellant is ordered to be released from custody forthwith, if he is not required in any other

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case.

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(vii) The State is directed through the learned Additional SPP to provide counseling and rehabilitation that may be required to the accused to bring him to the mainstream and to evolve a robust rehabilitation plan for such youngsters to provide them the required counseling, handholding etc., through the educational institutions or otherwise and submit a compliance report in this regard within three months.

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Registry is directed to send back the Trial Court records along with copy of this judgment, for information and needful action.

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Sd/(M G UMA) JUDGE

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BH

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CT:VS

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List No.: 1 Sl No.: 16

Sri.v.Ashok Kumar v. the State of Karnataka

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Sri.v.Ashok Kumar v. the State of Karnataka

Case brief

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