IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST 2019 BEFORE THE HON’BLE Mr. JUSTICE B.A.PATIL CRIMINAL APPEAL NO.911 OF 2019 BETWEEN:
Mallikarjuna G.N @ Mallika, S/o.Ningaiah, Aged about 28 years, Electrician, R/at Gekaravalli Village, H.Belluru Post, Aluru Taluk, Hailakandi, Hassan District-573 213. …Appellant (By Smt.Rattihalli Geetha Veeranna, Advocate) AND:
State of Karnataka by, Madikeri Rural Circle Police Station, Madikeri, Kodagu District-571 201, Rep. by SPP High Court, Bengaluru-560 001. …Respondent (By Sri.M.Diwakar Maddur, HCGP;
Sri.Mohan Kumar.D, Advocate for victim/PW1) This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the judgment and order of sentence dated 21.12.2018, passed by the Prl. District and Sessions Judge, Kodagu at Madikeri in Spl.C.No.161/2018, convicting the appellant/accused for the offence p/u/s 363, 376(2)(n) of IPC and u/S 4 and 6 of POCSO Act.
This appeal coming on for Orders, this day, the Court delivered the following:-
JUDGMENT The present appeal has been preferred by petitioner-accused being aggrieved by the Judgment of conviction and sentence passed by the Sessions Judge, Kodagu, Madikeri in Special Case No.161/2018 dated 21.12.2018 convicting the accused-appellant for the offences punishable under Section 376(2)(n) of IPC and Section 363 of IPC.
2. Brief facts of the case of the prosecution are that, complainant had been to Mangalore Hospital as care taker of PW.5 who was getting treatment from the said hospital and the accused was also there as care taker in the hospital to provide treatment to his mother. Accused and complainant met each other and there was a love affair between them. The complainant was minor as on the date. After returning from the hospital, the complainant and accused started conversing on the mobile phone and she used to talk with accused. In that light, on 05.06.2018, complainant had gone to Madikeri to obtain caste certificate and she intimated the same to the accused. Accused also came to Madikeri and when the complainant told her that her parents were making arrangements to get her marriage with somebody, the accused induced her and took her in a KSRTC bus to the house of C.Ws.9 and 10 and kept the complainant in the said house. On 24.06.2018 and 25.06.2018, when C.Ws.9 and 10 had gone to attend naming ceremony of some of their relative, at that time, accused came and had a forcible intercourse with the complainant. The father of the complainant filed a missing complaint on 06.06.2018 at about 12.15 p.m. and subsequently, the A.S.I.
traced the victim and after recording the statement, a case came to be registered in Crime No.192/2018. After investigation, charge sheet was laid against the appellant - accused. Thereafter, case was committed to the Sessions Court and the Sessions Court took cognizance and secured the presence of the accused. After hearing the learned Public Prosecutor and the learned counsel for the accused, charges were framed, read over and explained to the accused. Accused pleaded not guilty and he claimed to be tried. As such, trial was fixed.
3. In order to prove the case of the prosecution, prosecution got examined 17 witnesses as PWs.1 to 17, got marked 14 documents as Exs.P.1 to P.14 and thereafter, accused was examined under Section 313 of Cr.P.C., by putting the incriminating materials were against him, but he denied the same. Thereafter, he has not lead any defence evidence nor got marked any documents. After hearing both the counsels, the impugned judgment of conviction and sentence came to be passed. Challenging the same, accused is before this Court.
4. It is the submission of the learned counsel for the appellant-accused that the Court below, without application of mind and appreciating the evidence on record, has come to a wrong conclusion that the accused has committed the alleged offences. It is her further submission that the victim girl herself has stated that she herself used to talk with the appellant – accused and she had called the appellant stating that she is going to Madikeri. The accused also accompanied her and took her to the house of C.Ws.9 and 10 and even when she was there, she has not resisted to the said act of the accused. All these material evidence clearly goes to show that it is a consensual sex. It is her further submission that C.W.9 is the brother-in-law and C.W.10 is the sister- in-law. It is the case of the prosecution that three months prior to the said incident, both met each other and they got acquainted with each other. It is her further submission that P.Ws.7 and 8 are the mahazar witnesses to Ex.P.2 and they have not supported the case of the prosecution. It is her further submission that Section 376(2)(n) of IPC will not attract when the party has given consent to the alleged act. It is her further submission that no other injuries were found over the body of the victim. That itself shows that she was a consenting party. It is her further submission that without considering the above said facts, the Court below has wrongly convicted the accused. On these grounds, she prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
5. Per contra, it is the contention of the learned High Court Government Pleader that the victim was a minor girl and he eloped her and kept her in the house of C.Ws.9 and 10 and on 23.06.2018 and 24.06.2018, when no one was there in the house, sexually assaulted her three times without her consent. It is his further submission that the accused-appellant has committed serious offences and after considering the evidence placed on record, the Court below has come to a right conclusion. There was no infirmity in the order of the Trial Court. The Trial Court order deserves to be confirmed. On these grounds, he prayed to dismiss the appeal.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. On close reading of the evidence of P.W.1, who is the victim, it is clear that she has deposed that during September 2017, she had been to A.J. Hospital at Mangalore and there, she got acquainted with the accused and thereafter, they started talking with each other and had fallen in love. It is further deposed that she used to talk to the accused through mobile phone of her father. When she had been to Madikeri on 11.02.2018, accused had also come there and he purchased one Lava mobile phone with SIM for her and they used to talk with each other over the said mobile. It is further deposed that on 05.06.2018, she was intending to go to Madikeri for obtaining caste certificate and accused also informed that he will also come and meet her. At about 10.00 a.m., she left to Madikeri and thereafter, they moved around at Rajaseat and after talking for sometime, she told the accused that in her house, they are searching for a boy to get her married and she is not interested in marrying to somebody else. At that time, accused told that she is not major and she should not marry and called her to his sister’s house to settle the matter. In the first instance, she did not agree, but subsequently, she agreed. In a KSRTC bus, they went to Hassan and from there, they went to Sakaleshpur and they stayed in the house of his sister. It is further deposed that after reaching the said village, she messaged her father by using others mobile and informed that she has gone along with a boy whom she likes and they have got married by registered marriage. It is further deposed that the accused left her in the house of his sister and brother-in-law i.e., C.Ws.9 and 10, who are engaged in Coolie work and in the intervening session, accused used to go and see her. It is further deposed that on 24.06.2018, when C.Ws.9 and 10 went to attend a naming ceremony and no body were in the house, the accused came in the afternoon at about 2.30 p.m., and he took her to a bedroom against her will, he unrobed her and had a sexual act against her and that on the said night also, P.Ws.9 and 10 did not come back to the house and at 10.30 p.m., again she has been sexually assaulted. It is further deposed that on 25.06.2018 between 10.30 and 11.00 a.m., again he had a sexual act against her and in the afternoon, C.Ws.9 and 10 came and accused went to his house. On 26.06.2018, Police came and took her along with her parents.
8. During the course of cross-examination of this witness, she has deposed that as and when she was willing to talk with the accused, she used to call him and in the month of December, between 3rd and 11th, she called the accused and asked him to come to Madikeri and as she was not comfortable with the mobile phone of her father, she told the accused to get a mobile for her. It is further elicited in the course of cross-examination that on 05.06.2018, she went along with the accused to his sister’s house and with consent, she had sexual intercourse with her. She has admitted during the course of her cross-examination that before going to his sister’s house, she told that in her house, they are searching for a bridegroom and she is not having any interest to marry any person other than the accused. It is further admitted that willingly she had gone along with the accused to his sister’s house. It is further elicited that she has made any hue and cry, nor resisted or she did call anybody at the time when the accused promised that he is willing and going to marry her and had sex with her for three times. Except this nothing has been elicited in her cross-examination. It is also admitted during the course of cross-examination that as on the date of evidence, she was 18 years and she is willing to marry the accused and before the doctor, she has stated that the parents would have objected her marriage with the accused as her parents were planning to marry her to another person other than the accused.
9. P.W.2 is the father of victim-P.W.1. He has deposed about the filing of the missing complaint as per Ex.P.4. P.W.3 is the mother of the victim. She has also reiterated the statement of P.W.2. P.W.4 is the relative of P.W.2. He speaks about the victim and the wife of P.W.2 going to the hospital on 27.09.2017 and during the course of cross-examination, nothing has been elicited from the mouth of this witness.
P.W.5 is the doctor, who examined the accused and issued the certificate as per Ex.P.6. P.W.6 is one of the panchas to spot mahazar – Ex.P.5. He has not supported the case of the prosecution and he is treated hostile. P.W.9 is the brother-in-law of the accused in whose house, the accused made the victim girl to stay. P.W.10 is the doctor who examined the victim and issued opinion as per Ex.P.8. In her evidence, she had deposed that she did not find external injuries. On examination, she found that there were signs of recent sexual act present, no external injuries and she collected the samples in air dried packet, sealed and sent to FSL. During the course of cross-examination of this witness, nothing has been elicited to substantiate the case of the victim. P.W.11 is the wife of P.W.9. She has also reiterated the evidence of P.W.9. P.W.12 is the P.D.O who has issued the House Property Extract as per Ex.P.10. P.W.13 is the P.S.I who recorded the statement of P.W.1 and got it marked as Ex.P.11.
P.W.14 is the C.P.I who partly investigated the case.
P.W.15 is the A.S.I who registered the case and issued FIR on the basis of the complaint-Ex.P.4 as per Ex.P.12. P.W.16 is the P.S.I who partly investigated the case and P.W.17 is the C.P.I who investigated the case and filed charge sheet as against the accused.
10. From the above evidence, let us consider whether prosecution has proved its case in order to constitute an offence under Section 375 of IPC, the said sexual act must be against the will of the victim or without her consent. But as could be seen from the evidence of P.W.1-victim itself, she has clearly stated that she along with accused got acquainted during September, 2017 when she had been to the hospital. Thereafter, she starting talking to the accused over her father’s mobile and that, as it was inconvenient, she requested the accused to buy a mobile phone for her. Accordingly, accused bought a mobile phone and handed over to her. For nearly about six months, they were talking to each other. It is further averred in the evidence that when they reached Madikeri, they went to Rajaseat and when they were moving around, she informed the accused that her parents are in search of a boy and she is not willing to marry some other person and that she is interested in marrying the accused. When they went to the house of P.Ws.9 and 10, she informed her father through a message that she is with the accused and is willing to marry him. Further, if the conduct of the victim is looked into, she has deposed that as and when she was willing to have a talk with the accused and willing to see the accused, she used to call the accused and so also she has given a call between 3rd and 11th December, 2017 and she only called the accused to come to Madikeri. She has also admitted that she was not willing to marry any other person and that she went to the house of his sister’s house along with accused willfully and by consent. All these materials clearly go to show that the said act of the accused is a consensual sex.
11. Though it is contended by the learned High Court Government Pleader that as on the date, the victim was minor and he eloped with the victim and got married with her and if the accused had eloped the minor victim and if he had got married, then under such circumstances, accused could have been charged under Section 4 of the Child Marriage Act, but no charge has been framed under this section.
12. Be that as it may, on 05.06.2018, when the victim was taken by the accused, she was aged about 17 years 06 months. If the evidence of the doctor-
P.W.10 who examined the victim in the hospital is gone through, it is clear that she has stated that the victim told her that she was in friendship with the accused since September, 2017. They used to converse through mobile phone often and she only called the accused to Rajaseat and from there, he had taken the victim to his sister’s house. Even on examination, she has stated that there were signs of recent sexual act present, but no external injuries were there and samples were collected and sent to the FSL. The said records also indicate the fact that when the accused sexually assaulted the victim, she has not resisted and no resistance marks/injuries were found on the body of the victim. On perusal of the evidence of P.W.1-victim and other materials, it clearly go to show that she has willingly gone along with the accused to the house of P.W.9 and when she was staying there, they had a sexual intercourse and no resistance was made. In the said facts and circumstances of the case, the main ingredients of Section 375 of IPC are not attracted. As the victim was aged 17 years 06 months at the time of alleged incident, she had maturity of mind and she has gone willingly along with the accused and the said fact is also been admitted by the victim in her cross- examination. Even she has gone to the extent of saying that she was very much interested in marrying the accused other than any other person. The said act of the accused would indicate that the said sexual act would not attract the provisions of Section 375 of IPC and it is nothing but a consensual sex.
13. From the above facts and circumstances, the prosecution has utterly failed to prove the ingredients of Section 376 of IPC. The said aspect of the matter has not been properly considered and appreciated by the Court below while convicting the accused. In that regard, Judgment of the Trial Court has to be set aside.
14. In the light of the above discussion, the Appeal is allowed and the Judgment of conviction and order of sentence passed by the District and Sessions Judge, Kodagu, Madikeri in Sessions Case No.161/2018 dated 21.12.2018 is set aside. Accused is acquitted of the offence punishable under Sections 376(2)(n) and 363 of IPC and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012. Accused is released forthwith if he is not required in any other case.
In view of disposal of the appeal itself, I.A.No.2/2019 does not survive for consideration. Accordingly, it is disposed of.
Registry is directed to intimate the operative portion of this order forthwith to the concerned jail authorities.
The bail bond and surety bonds stand cancelled.
Sd/- JUDGE bnv*