Jagadish Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 20-4-2015 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AND SPECIAL COURT, DAVANAGERE, IN SESSIONS CASE NO.33 OF 2014 CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366 AND 342 OF IPC, SECTION 3(2)(v) OF SC/ST (POA) ACT AND SECTION 6 OF POCSO ACT.

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THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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This appeal is filed against the judgment of conviction and sentence against the appellant-accused for the offences punishable under Sections 366 and 342 of the Indian Penal Code, 1860 (for short, 'IPC), under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'SC/ST Act') and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'). The maximum punishment imposed on the appellant is life imprisonment with fine of Rs.10,000/- for the offence punishable under Section 3(2)(v) of SC/ST Act.

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The factual matrix of the case of the prosecution is that, the victim-PW1 is a minor as defined under Section 2(d) of POCSO Act and she was subjected to sexual act continuously

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from 13.09.2013 to 02.12.2013. It is also the case of the prosecution that the victim was subjected to sexual act on the false promise of the accused that he would marry her and as a result, she became pregnant. The specific complaint of the victim as per Ex.P1 is that the accused took her to his residence, wrongfully confined her in his house and subjected her continuously for sexual act against her will and thus, she became pregnant. Later, the accused turned hostile to his promise and hence, the victim lodged a complaint before the Police. The Police investigated the matter and filed the chargesheet against the accused. Now, the accused is in custody in view of conviction and sentence.

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The trial Court secured the presence of the accused, he did not plead guilty and claimed to be tried. The prosecution examined PWs.1 to 17 including the victim, Doctor, and other witnesses and also considered the documents as per Exs.P1 to P18. The trial Court having considered both oral and

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documentary evidence, particularly, the evidence of PW3, a witness to Ex.P3-spot mahazar, Ex.P5-Caste Certificate of the victim issued by the Tahsildar, Ex.P14-medical report of the victim, which clearly discloses that the victim was pregnant of 13 weeks and also relying on Ex.P16-medical report of the accused that the accused is capable of having sexual intercourse, convicted the accused for the aforesaid offences.

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Being aggrieved by the judgment of conviction and sentence, the present appeal is filed by the accused before this Court.

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Sri N.S. Sampangi Ramaiah, learned Amicus Curiae appearing for the appellant-accused, would vehemently contend that the trial Court erred in considering the fact that the victim and the accused are known to each other, the victim forced the accused to marry her and when the accused disagreed to marry her, she came to the house of the accused and settled there. The accused was shocked and informed the same to the parents of the victim, but the parents of the victim did not come to his house for taking the victim back to their house. He further contended that the accused was not aware

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that the victim belonged to the Scheduled Caste and when the accused is not aware of the said fact, the question of invoking Section 3(2)(v) of SC/ST Act against the accused does not arise at all. Further, PW1 in her evidence has clearly stated that the accused did not know her caste, but he knew that she was a Tamilian. Therefore, the trial Court wrongly convicted the accused for the offence punishable under Section 3(2)(v) of SC/ST Act. He further contended that the accused was sentenced to undergo rigorous imprisonment for a period of ten years for the offence punishable under Section 6 of POCSO Act. Since the accused has already undergone the sentence for a period of nearly twelve years, the Court may show lenience and prays to set him at liberty.

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Per contra , Smt. Rashmi Jadhav, Additional State Public Prosecutor appearing for the respondent-State, has brought to the notice of this Court that during the course of cross-examination of PW1, the learned counsel for the accused himself suggested to the witness that the accused is aware of the caste of the mother of the victim. The evidence of PW1 is credible and same inspires confidence of the Court. Since there

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are no contradictions, omissions and commissions in the evidence of the prosecution witnesses, the trial Court rightly convicted the accused for the aforesaid offences. She further contended that Ex.P8-Caste Certificate of the victim is issued by the Tahsildar and it clearly discloses that the victim belonged to the Scheduled Caste. When such thing occurs, extending any benefit in favour of the accused does not arise.

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Having heard the learned counsel for the appellantaccused, the learned Additional State Public Prosecutor for the respondent-State and the material available on record, the point that arises for consideration of this Court is:

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Whether the trial Court committed error in convicting the accused for the offences invoked against him and imposing life sentence?

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Having re-appreciated both oral and documentary evidence, particularly, the evidence of PW1, she has clearly stated that she was aged about 17 years and the accused was her neighbour. The accused promised her to marry and though she has not given consent, he took her forcibly in a bus to Davanagere and made her to stay in his house, wrongfully confined her and that on 13.09.2013 against her will , subjected

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her for sexual act. Further, when she expressed her willingness

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to join her parents, he used to assault her and when she tried to go to Bengaluru along with her clothes, he snatched her clothes. Taking advantage of no one in the house, he committed sexual act on her and when she refused for sexual act, he used to assault her. During the course of crossexamination, except making suggestions, nothing is elicited apart from sexual act of the accused. It is her evidence that at the distance of 70 feet, both of them are living in Bengaluru. It is suggested that the accused has never given any assurance that he would marry her and said suggestion was also denied. However, it is elicited that she did not scream while the accused taking her to Davanagere and also, she did not inform the same to the Police. It is suggested that at no point of time, she requested the accused to give money to go back to Bengaluru and said suggestion was also denied.

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Learned Additional State Public Prosecutor for the respondent-State also brought to the notice of this Court that during cross-examination of PW1, suggestion was made to PW1 that the accused was aware of the caste of her mother and the

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accused was aware of the same when he was in Bengaluru. However, she denied the said suggestion. Further, at page No.4 in her evidence, PW1 has categorically deposed before the Court that she belongs to Adi Dravida and the accused belongs to Lingayat and when the accused took her from Bengaluru, he was not aware of the fact that she belonged to Adi Dravida, but he knew that she was Tamilian. Hence, it is clear that the accused was not aware of the caste of PW1. No doubt, the prosecution mainly relies on the evidence of PW16-Tahsildar, who issued Ex.P5-Caste Certificate of the victim and on perusal the same, it is clear that the victim belongs to Adi Dravida community. The evidence of PW1 is very clear that the accused was not aware of her caste and he knew that she was Tamilian. Therefore, the Court has to take note of both oral and documentary evidence available on record. It is also important to note that the medical report of the victim-ExP14 discloses that the victim's hymen was not intact and there was no evidence of recent sexual act. Based on FSL report-Ex.P13, it is found that the victim was 13 weeks pregnant. However, no DNA test was conducted in respect of pregnancy of the victim is concerned, except medical report of the accused-Ex.P16 that

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the accused is capable of having sexual intercourse and in view of categorical evidence of the victim and medical evidence proved the sexual act and pregnancy.

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Having considered the oral evidence of PW1 and also the medical report of the victim-Ex.P14, it is clear that the victim became pregnant on sexual act of the accused, though there was no recent sexual act as on the date of filing of the complaint, i.e. on 02.12.2013. Ex.P13-FSL report also does not support the case of the prosecution with regard to the seminal stains and recent sexual intercourse. The trial Court having considered both oral and documentary evidence available on record, convicted the accused for sexual act committed by him for a period of ten years with fine of Rs.15,000/- for the offence punishable under Section 6 of POCSO Act, but imposed life imprisonment for the offence punishable under Section 3(2)(v) of SC/ST Act and we do not find any error invoking Section 6 of POCSO Act.

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Having re-assessed the material available on record, there is Ex.P5-Caste Certificate of the victim that she belongs to Adi Dravida community and the evidence of PW1 is very

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clear that the accused while taking her to his residence at Davanagere was not aware of the particular caste of the victim, but he knew that she was Tamilian. Therefore, the very admission of PW1 that ' the accused did not know her caste while taking her to his residence at Davanagere and while subjecting her for sexual act ' comes to the aid of the accused in invoking Section 3(2)(v) of SC/ST Act. The trial Court committed an error in convicting the accused for the offence punishable under Section 3(2)(v) of SC/ST Act, which requires re-consideration by this Court for setting aside the same. In view of the discussions made above, we pass the following

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O R D E R

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i. Criminal appeal is allowed-in-part .

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ii. The judgment of conviction and order on sentence dated 20-4-2015 passed by the Principal District and Sessions Judge and Special Judge, Davanagere, in Sessions Case No.33 of 2014, for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, against the appellant-accused is set aside. However, with regard to

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offences punishable under Sections 366 and 342 of the Indian Penal Code, 1860, and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, are confirmed.

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iii. The appellant is acquitted of the charge for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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iv. Since the accused has served his sentences for the offences punishable Sections 366 and 342 of the Indian Penal Code, 1860, and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, he shall be set at liberty forthwith, if his detention is not required in any other case.

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Communicate copy of this order to the trial Court and concerned Prison, forthwith.

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This Court, while acknowledging the services rendered by

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Sri N.S. Sampangi Ramaiah, learned Amicus Curiae for the appellant-accused, recommends honorarium of a sum of Rs.10,000/- payable to him by the Registry.

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This Court appointed Smt. Bharathi M., learned Amicus Curiae , to assist the Court on behalf of respondent No.2. Since no assistance was rendered by her, the Registry is directed not

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to make payment to her.

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Sd/(H.P.SANDESH) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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KVK List No.: 1 Sl No.: 22

Jagadish v. State of Karnataka

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Jagadish v. State of Karnataka

Case brief

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