Gurumurthy M R @ Guru @ Gombe Vs State of Karnataka

THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND CONVICTION SENTENCE DATED 31.07.2021 IN SPECIAL CASE (POCSO) NO.14/2020 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC I CHIKKAMAGALURU CONVICTED FOR OFFENCE P/U/S.376(2)(n),450,506 OF IPC AND SEC.5(j)(ii),5(L),6 OF POCSO ACT 2012 AND ACQUIT THE APPELLANT.

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THIS APPEAL, COMING ON FOR DICTATING ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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Appellant who is accused and convicted of the offences

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punishable under Sections 376(2)(n), 450, 506 IPC and Sections 5(j)(ii), 5(L) & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), is before this Court being aggrieved by the judgment and order of conviction and sentence dated 31.07.2021 passed in Special Case (POCSO) No.14/2020 by the Court of Addl. District & Sessions Judge, FTSC-1, Chikkamagalur, by which the appellant-accused has been sentenced as under:

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(i) For the offences punishable under Section 376(2)(n) of IPC and Sections 5(j)(ii), 5(l) & 6 of the POCSO Act, accused shall undergo rigorous imprisonment for a period of 20 years, and pay fine of Rs.50,000/- and in default, shall undergo simple imprisonment for a period of one year.

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(ii) For the offence punishable under Section 450 of IPC accused shall undergo simple imprisonment for a period of one year, and pay fine of Rs.10,000/- and in

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default, shall undergo simple imprisonment for a period of three months.

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(iii) For the offence punishable under Section 506 of IPC, accused shall undergo simple imprisonment for a period of one year.

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Brief facts and the case of the prosecution is that, when the victim had gone to her grandfather's house at Allampura Village, Chikkamagalur Taluk, about four years prior to 08.02.2020, she became acquainted with the accused/appellant. That they continued to converse over phone. The accused had represented that he was in love with her and would marry her and in the month of June 2019, he had come to her house at Bettagere village of Moodagere Taluk, and when no one was there at home, he had enticed her and had forcible sexual intercourse on four to five occasions.

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That such forcible act was committed last at 11.00 a.m. on 27.06.2019. He had threatened her not to disclose the same to any of her relatives by stating that he would not marry her if

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she revealed to anyone. That he is responsible for her becoming pregnant. A complaint in this regard was lodged by her on 08.02.2020 before Banakal Police Station, who

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registered the case in Crime No.5/2020. Investigation was conducted and statement of the victim was recorded under Section 164 Cr.PC before the Magistrate. Spot mahazar was prepared Statement of the witnesses was taken. Accused was arrested.

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A charge sheet was filed for the offences punishable under Sections 376(2)(n), 450, 506 of IPC and Sections 5(j)(ii), 5(L) & 6 of the POCSO Act. Accused pleaded not guilty and sought to be tried. The prosecution examined 15 witnesses as PW-1 to PW-15 and produced 21 documents which were marked as Exs.P-1 to P-21. The statement of the accused under Section 313 of Cr.PC was recorded. He has denied the incriminating evidence produced against him. The Trial Court framed the following point for its consideration:

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"1) ¢£ÁAPÀ 27.06.2019 gÀAzÀÄ ¨É¼ÀUÉÎ 11.00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è, ªÀÄvÀÄÛ CzÀQÌAvÀ ªÉÆzÀ®Ä, CzÉÃ wAUÀ½£À°è £Á®ÌjAzÀ LzÀÄ ¨Áj, ªÀÄÆrUÉgÉ vÁ®ÆèPÀÄ, ¨ÉlÖUÉgÉ UÁæªÀÄzÀ°ègÀÄªÀ ZÁ¸Á-2 C¥Áæ¥ÀÛ £ÉÆAzÀ ¨Á®QAiÀÄ ªÀÄ£ÉUÉ DgÉÆÃ¦AiÀÄÄ, AiÀiÁgÀÆ E®èzÀ ¸ÀªÀÄAiÀÄzÀ°è CwPÀæªÀÄ ¥ÀæªÉÃ±À ªÀiÁr, ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉ PÀ®A 450 gÀ£ÀéAiÀÄ C¥ÀgÁzsÀªÀ£Éß¸ÀVzÁÝ£É, JAzÀÄzÀ£ÀÄß C©üAiÉÆÃd£ÉAiÀÄÄ ¸ÀA±ÀAiÀiÁwÃvÀªÁV gÀÄdÄªÁvÀÄ ¥Àr¹zÉAiÉÄÃ?

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DgÉÆÃ¦AiÀÄÄ ZÁ¸Á-2 C¥Áæ¥ÀÛ £ÉÆAzÀ ¨Á®QAiÀÄ ªÀÄ£ÉUÉ ªÉÄÃ®ÌAqÀAvÉ CPÀæªÀÄ

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¥ÀæªÉÃ±À ªÀiÁrzÀ £ÀAvÀgÀ, DPÉAiÀÄ£ÀÄß ¦æÃw¸ÀÄwÛgÀÄªÀÅzÁVAiÀÄÆ, ªÀÄzÀÄªÉAiÀiÁUÀÄªÀÅzÁVAiÀÄÆ ¥ÀÄ¸À¯Á¬Ä¹, DPÉAiÀÄ EZÉÑUÉ «gÀÄzÀÞªÁV §®ªÀAvÀ¢AzÀ

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HC-KAR

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¯ÉÊAVPÀ ¸ÀA¨sÉÆÃUÀ £ÀqÉ¹, UÀ©üðuÉAiÀiÁUÀ®Ä PÁgÀt£ÁV, ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉ PÀ®A 376(2) (J£ï) ºÁUÀÆ ¥ÉÆPÉÆìÃ PÁAiÉÄÝAiÀÄ PÀ®A 5(eÉ)( ii ), 5(J¯ï), 6 gÀ£ÀéAiÀÄ C¥ÀgÁzsÀªÀ£Éß¸ÀVzÁÝ£É, JA§ÄzÀ£ÀÄß C©üAiÉÆÃd£ÉAiÀÄÄ ¸ÀA±ÀAiÀiÁwÃvÀªÁV gÀÄdÄªÁvÀÄ

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¥Àr¹zÉAiÉÄÃ?

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DgÉÆÃ¦AiÀÄÄ ZÁ¸Á-2 C¥Áæ¥ÀÛ £ÉÆAzÀ ¨Á®QAiÀÄ eÉÆvÉ §¯ÁvÁÌgÀªÁV gÉÊAVPÀ ¸ÀA¨sÉÆÃUÀ £ÀqÉ¹zÀ «ZÁgÀªÀ£ÀÄß AiÀiÁjUÀÆ ºÉÃ¼À¨ÁgÀzÉAzÀÄ DPÉAiÀÄ£ÀÄß ºÉzÀj¹, ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉ PÀ®A 506 gÀ£ÀéAiÀÄ C¥ÀgÁzsÀªÀ£Éß¸ÀVzÁÝ£É, JA§ÄzÀ£ÀÄß C©üAiÉÆÃd£ÉAiÀÄÄ ¸ÀA±ÀAiÀiÁwÃvÀªÁV gÀÄdÄªÁvÀÄ ¥Àr¹zÉAiÉÄÃ?"

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On appreciation of the evidence, the Trial Court answered

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the points for consideration in the affirmative and consequently passed the order and sentenced him to undergo imprisonment as noted above. Being aggrieved, the accused is before this Court.

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Learned Counsel for the appellant, at the outset, taking this Court to the records, more particularly, the document at Ex.P-16, which is a certificate issued by Smt. Ningamma Bommaiah Government High School, Bettagere, submits that the date of birth of the victim is shown as 23.05.2002. Calculated from the said date, her age as on the date of the alleged incident would have been approximately 17 years 11 months. That there is no acceptable material evidence produced by the prosecution to establish the fact of victim

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being a child below the age of 18 years. She refers to Sections 2(d) & 34 of the POCSO Act, and submits that unless and until the prosecution proves and establishes beyond reasonable doubt that the victim was a child below the age of 18 years, in the manner as contemplated under Section 34 of the POCSO Act, the appellant cannot be either tried or convicted for the alleged offences punishable under Sections 5 & 6 of the POCSO Act. She submits that though a document at Ex.P-16 - school certificate has been produced, neither the author of the said document is examined nor the original records based on which the said the declaration is furnished has been produced before the Court. Thus, she submits that the prosecution has miserably failed to prove victim being below the age of 18 years. She further submits that since the prosecution has failed to prove age of the victim, the only other ground which probably would be available is to consider the case of the accused under Section 376 of IPC. In this regard, she refers to the deposition of the victim which was recorded on 30.06.2021 wherein, according to the Counsel, the victim has in unequivocal terms deposed that she herself had called the accused to come to her house on 27.06.2019 when no one was

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at home. Thus, referring to this, she submits that it is not a case of forcible sexual assault as sought to be made out by the prosecution. It is a consensual relationship which the accused had with the victim. Therefore, on both the counts, the order of conviction and sentence passed by the Trial Court is unsustainable. Hence, seeks for allowing the appeal.

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Per contra, learned HCGP appearing for the State, submits that the fact of victim being a child below the age of 18 years is established by the prosecution by producing the document at Ex.P-16 which is the school record. The said document is one of the documents contemplated under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'JJ Act'). Therefore, the said requirement of law stands complied with unless the same is rebutted, which is not the case. Once the prosecution has established the factum of victim being below the age of 18 years, nothing further survives for consideration as the burden shifts on the accused under Section 29 of the POCSO Act to rebut the said presumption.

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Learned Counsel appearing for the victim, supplementing

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the submissions made by the learned HCGP, submits that the victim being aged below 18 years, has not been disputed by the accused. Therefore, the contention now sought to be canvassed by the Counsel for the appellant cannot be accepted in the light

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of the oral and documentary evidence produced by the prosecution on record. Hence, seeks for dismissal of the appeal.

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Heard. Perused the records.

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9. Section 2(d) of the POCSO Act reads as under:

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"2(d) 'Child' means any person below the age of eighteen years."

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10. Section 34 of the POCSO Act reads as under:

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"34. Procedure in case of commission of offence by child and determination of age by Special Court.(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).

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(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

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(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under

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sub-section (2) was not the correct age of that person."

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The Apex Court in the case of MAHADEO VS STATE OF

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MAHARASHTRA - (2013)14 SCC 637 , in paragraph no.12 has

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held as under:

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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, by 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

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followed by the courts for the purpose of ascertaining the age of a victim as well."

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Similarly, the Apex Court in the case of STATE OF UTTAR

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PRADESH VS ANURUDH & ANOTHER - IN 2026 SCC ONLINE SC

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40 , in paragraph 13, has held as under:

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"13. At the outset of this analysis, it is important to delve into the scope and ambit of the POCSO Act. Pardiwala J, writing for the Court in Just Rights for Children Alliance v. S. Harish [2024 SCC OnLine SC 2611], examined in detail, the objects, reasons and scope of the legislation. Relevant paragraphs of the decision are extracted hereinbelow:

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“ 43. The Statement of Objects and Reasons for the enactment of the POCSO makes it abundantly clear that since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalized, the POCSO has been enacted to protect the children from the offences of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences and for matters connected therewith and incidental thereto.

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44. It further states that the POCSO is a ‘self-contained comprehensive legislation’ for the purpose of enforcing the rights of all children to safety, security and protection from sexual abuse and exploitation countered through commensurate penalties as an effective deterrence for sexual offences and pornography and has been enacted keeping in mind Articles 15 and 39 of the Constitution respectively and the United Nations Convention on the Rights of the Children. …

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45. The primary legislative intent behind the enactment of the POCSO was to create a comprehensive legal framework that would not only punish offenders but also provide a childfriendly system for the recording of evidence, investigation, and trial of offenses. The POCSO was designed to cover all forms of sexual abuse against children, including sexual harassment, child pornography, and aggravated sexual assault, among others. It aimed to ensure the safety and dignity of child victims during the legal process, with specific provisions that mandate incamera trials, the presence of a trusted adult during the proceedings, and the prohibition of aggressive questioning of child victims."

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In the aforesaid judgments, the Apex Court has taken into consideration the provisions of Section 94 of the JJ Act and Rule 12 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2007. The said provision, as noted above, mandate the prosecution to produce the documents in the nature of certificate of matriculation or equivalent, in the absence whereof, certificate of date of birth of the school first attended and in the absence thereof, birth certificate given by the Corporation and Municipal Authorities. In the absence of any of the aforesaid documents, the victim is required to be subjected to ossification test as noted above.

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In the present case, Ex.P-16 is the certificate apparently issued by the Head Master of Smt. Ningamma Bommaiah

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Government High School. Perusal of the said document would indicate that the victim was apparently studying in 9^th Standard and was continuously absent and her date of birth shown as 23.05.2002, which has been taken from her Registration No.19/2017-18. Her admission to the said school was on 20.05.2017, which is not the school first attended by the victim. Clearly the said document do not comply with the requirement of Section 94 of the JJ Act as noted above and the said document do not fall in any of the categories of the documents required to be produced by the prosecution.

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In addition, even the author of the said document has not been examined. No material is brought on record to show conducting a Ossification test of the victim. Considering her age admitted as on the date of the incident to be above 17 years, even as per the victim, and in the absence of any cogent documentary evidence, this Court, is of the considered view that there is considerable force in the submission made by the learned Counsel for the appellant that the prosecution has failed to prove and establish that victim was a child below the age of 18 years. Therefore, charging the accused of the

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offences punishable under Sections 5 & 6 of the POCSO Act and convicting him thereof is unsustainable.

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Having said that, the next point that requires

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consideration is the offence alleged against the accused punishable under Section 376(2)(n) of IPC. Sections 375 & 376(2)(n) of IPC reds as under:

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" 375. Rape.- A man is said to commit "rape" if he-

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

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(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such women or makes her to do so with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

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under the circumstances falling under any of the following seven descriptions:-

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First.Against her will.

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Second.Without her consent.

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Thirdly.With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

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Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any strupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent."

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" 376. Punishment for rape.- (1) xxx

(2) Whoever, -

(a) xxx

xxx

(n) commits rape repeatedly on the same woman,

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shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

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The deposition of the victim recorded in 30.06.2021 at paragraph 2 reads as under:

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HC-KAR

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"2. £Á£ÀÄ vÉÆÃlzÀ PÉ®¸ÀPÉÌ ºÉÆÃUÀÄwÛzÉÝ. ¢£ÁAPÀ 27.06.2019 gÀAzÀÄ £ÀªÀÄä ªÀÄ£ÉUÉ §gÀÄªÀÅzÀPÉÌ DgÉÆÃ¦AiÀÄ£ÀÄß £Á£ÉÃ PÀgÉ¢zÉÝ. D ¢£À £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è J®ègÀÄ PÉ®¸ÀPÉÌ ºÉÆÃVzÀÝgÀÄ. D ¢£ÀzÀ £ÀAvÀgÀªÀÇ £Á«§âgÀÄ ¥sÉÆÃ¤£À°è ªÀiÁvÀ£ÁrzÉÝÃªÉ. £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è AiÀiÁgÀÆ £À£Àß §UÉÎ C£ÀÄªÀiÁ£À¥ÀnÖgÀÄªÀÅ¢®è. £Á£ÀÄ UÀ©üðtÂAiÀiÁzÀ §UÉÎ £À£Àß CPÀÌ¤UÉ ªÀÄvÀÄÛ CwÛUÉUÉ «µÀAiÀÄ ºÉÃ½gÀÄªÀÅ¢®è. £Á£ÀÄ UÀ©üðtÂAiÀiÁzÀ «ZÁgÀªÀ£ÀÄß DgÉÆÃ¦UÉ ºÉÃ½zÉÝÃ£É. DvÀ CzÀPÀÆÌ, £À£ÀUÀÆ ¸ÀA§AzsÀ E®è JAzÀÄ ºÉÃ½zÁÝ£É. DgÉÆÃ¦AiÀÄ ªÀÄ£ÉAiÀÄªÀjUÉ £Á£ÀÄ UÀ©üðtÂAiÀiÁzÀ «ZÁgÀªÀ£ÀÄß w½¹zÉÝÃ£É. £À£Àß ªÀÄUÀÄ«UÉ FUÀ MAzÀÄ ªÀµÀð £Á®ÄÌ wAUÀ¼ÀÄ DVzÉ. ªÀÄUÀÄªÀ£ÀÄß DgÉÆÃ¦ £ÉÆÃrgÀÄªÀÅ¢®è. zÀÆgÀÄ ¤ÃrªÀÅzÀPÉÌ ªÉÆzÀ®Ä £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è J®ègÀÄ PÀÆvÀÄ ZÀað¹zÉÝÃªÉ. £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆÃ¦ E§âgÀÆ ¸ÉÃjzÀgÉ vÉÆAzÀgÉ DUÀÄvÀÛzÉ J£ÀÄßªÀÅzÀÄ £À£ÀUÉ UÉÆwÛvÀÄÛ, DzÀgÉ D jÃw vÉÆAzÀgÉ DzÀgÉ £Á£ÀÄ ¤£Àß eÉÆvÉUÉ EgÀÄvÉÛÃ£É JAzÀÄ DgÉÆÃ¦ ºÉÃ½zÀÝ. £Á£ÀÄ zÀÆgÀÄ ¤ÃrzÀ £ÀAvÀgÀ DgÉÆÃ¦ £À£Àß£ÀÄß ¨sÉÃn DVgÀÄªÀÅ¢®è. £ÁåAiÀiÁ¢üÃ±ÀgÀ ªÀÄÄAzÉ EzÉÃ jÃwAiÀÄ ºÉÃ½PÉ ¤ÃqÀ¨ÉÃPÀÄ JAzÀÄ £À£ÀUÉ AiÀiÁgÀÆ ºÉÃ½PÉÆnÖgÀÄªÀÅ¢®è. £Á£ÀÄ ªÀÄUÀÄ«UÉ d£Àä ¤ÃrzÀ ¸ÀªÀÄAiÀÄ°è DgÉÆÃ¦ ªÀÄvÀÄÛ DvÀ£À ªÀÄ£ÉAiÀÄªÀjUÉ ºÉÃ½gÀÄªÀÅ¢®è."

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As rightly contended by the learned Counsel for the appellant, the victim has voluntarily deposed in unequivocal terms that on 27.06.2019 she herself had called the accused to come home when there was no one at home and that she was aware of the consequences of her relationship with the accused. Therefore, the case of the prosecution that the accused had forcible sexual intercourse against the will of the victim cannot be sustained.

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HC-KAR

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On both the counts, prosecution has failed to bring home

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the guilt of the accused in the manner known to law. Accordingly, appeal succeeds and I proceed to pass the following order:

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(i) Criminal appeal is allowed.

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(ii) The impugned judgment and order of conviction and sentence dated 31.07.2021 passed by the Court of Addl. District & Sessions Judge, FTSC-1, Chikkamagaluru, in Special Case (POCSO) No.14/2020, is set aside.

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(iii) The appellant is acquitted for the offences punishable under Sections 376(2)(n), 450, 506 of IPC and Sections 5(j)(ii), 5(L), and 6 of the POCSO Act, 2012.

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(iv) The appellant shall be set at liberty forthwith, if he is not required in any other case.

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(v) Bail bonds and sureties stands cancelled.

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(vi) Registry is directed to communicate this order to the prison authorities.

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

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KK

Gurumurthy M R @ Guru @ Gombe v. State of Karnataka

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Gurumurthy M R @ Guru @ Gombe v. State of Karnataka

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