IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR.JUSTICE R. DEVDAS CRIMINAL APPEAL NO.349/2015 BETWEEN:
Manja S/o Lakshmanappa Aged about 21 years Electrician, R/o Hasavi Village, Soraba Taluk Shivmoga District-577 429.
(By Sri. Aruna Shyam M., Advocate) AND:
…Appellant The State of Karnataka through Anavatti Police Station Shivmoga Represented by the State Public Prosecutor High Court Building High Court of Karnataka Bengaluru-560 001.
…Respondent (By Sri Vijay Kumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated 26.11.2014 and sentence dated 27.11.2014 passed by the I Addl. District and Sessions Judge, Shivamogga in Spl. (A) C.No.2/2014 - convicting the appellant/accused for the offences punishable under Sections 376(1) and 506 of IPC and under Section 4 of POCSO Act and under Section 3(2)(V) of SC and ST (POA) Act.
This Criminal Appeal coming on for hearing this day, B.A. PATIL J. delivered the following:-
J U D G M E N T The present appeal has been preferred by the appellant/accused being aggrieved by the judgment of conviction and order of sentence passed by I Addl. District and Sessions Judge, Shivamogga, in Spl.(A) Case N.2/14 dated 26/27.11.2014.
2. We have heard the learned counsel Sri Aruna Shyam M. and Additional SPP Sri.Vijay Kumar Majage.
3. The genesis of the case of the prosecution are that the grand-mother of the victim filed the complaint alleging that her grand-daughter was studying in second standard. On 8.10.2013 when she had been to coolie work, victim was staying in the home as there were holidays to her school. When complainant return back at about 6.00 p.m., she noticed that her grand-daughter was not found at home and as such she went in search of her grand- daughter. At about 6.15 p.m. she heard screaming sound of her grand-daughter from the house of the accused. Immediately, she entered the house and there she saw that her grand-daughter was standing nude and accused was found in his undergarments. Accused was kissing the victim and on seeing the complainant, he took his shirt and trousers and ran away from the back door. When she made enquiries with her grand-daughter, she told that when she was playing in front yard of the house, accused came and told that her uncle had called over the phone. When the victim went along with the accused, he took her inside his house and told her to watch television and thereafter he removed her undergarments and skirt and thereafter he made her to fell on the floor, then he slept on her. On the basis of the said complaint, a case was registered in Crime No.262/2013 for the offences punishable under Sections 376(2)(i) of Indian Penal Code and also under Section 4 of the POCSO Act. Thereafter, after investigation, the charge sheet was laid against the accused.
4. After filing of the charge sheet, the copies of the charge sheet material were supplied to the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was prepared, read over and explained to the accused. Accused pleaded not guilty and he claims to be tried and as such trial was fixed.
5. In order to prove the case of the prosecution, prosecution got examined PWs.1 to 15 and got marked Exs.P1 to P25 and also got marked Mos.1 to 11. After closure of the prosecution evidence, accused has not led any evidence, but he got marked Ex.D1. After hearing the learned counsels appearing for the parties, the impugned judgment of conviction and order of sentence came to be passed, wherein the accused was convicted and sentenced to undergo imprisonment for two years for the offence under Section 506 of Indian Penal Code and to pay a fine of Rs.2,000/-, in default to undergo imprisonment for three months. Accused is sentenced to undergo rigorous imprisonment for ten years for the offence punishable under Section 376(1) of Indian Penal Code r/w Section 4 of POCSO Act and fine of Rs.5,000/- and in default he shall undergo imprisonment for six months and he was also sentenced to undergo imprisonment for life for the offence under Section 3(2)(v) of SC/ST (POA) Act and fine of Rs.10,000/- and in default he shall undergo imprisonment for one year. Challenging the legality and correctness of the said judgment, the appellant is before this Court.
6. It is the submission of the learned counsel for the appellant/accused that the evidence of the victim is not trust worthy and reliable. He further submitted that the evidence of the victim who is a child witness is required to be scrutinized carefully and cautiously by the Court before relying upon the said evidence. This aspect has been ignored by the trial Court. He further submitted that there are contradictions and omissions in the evidence of the victim as well as other witnesses, but the said aspect has not been properly considered and appreciated by the trial Court. He further submitted that there are variations in the date of birth of the victim as per the evidence of PWs.4 and 5. This aspect has not been properly considered and appreciated by the trial Court. He further submitted that there is delay in registering the case as against the accused. He further submitted that the evidence of PW1 is contradictory to the evidence of PW3. He further submitted that PW1 has specifically deposed that she went and saw the victim in the house of the accused, but the evidence of PWs.2 and 3 clearly goes to show that she ran out of the house and she was not present in the house of the accused. These major contradictions have not been properly appreciated by the trial Court while convicting the accused. On these grounds, he prayed to allow the appeal and set aside the impugned judgment of conviction and order of sentence.
7. Per contra, the learned Addl. SPP vehemently argued and submitted that the evidence of PW2 the victim clearly goes to show that it is the accused who has sexually assaulted her and the said evidence is also corroborated with the evidence of PW9- Doctor who examined the victim and has issued the certificate as per Ex.P15. He further submitted that though there are some contradictions in the evidence of PWs.1 and 2, they are minor contradictions. The fact remains from the evidence of PW2 and the doctor PW9 that the victim has been sexually assaulted by the accused. The trial Court after considering and appreciation of the evidence has properly came to the conclusion that the accused has abused her and threatened her and thereafter making her nude has sexually assaulted and keeping in view the above said aspects, the trial Court has rightly convicted the appellant/accused. The appellant/accused has not made out any good ground so as to interfere with the judgment of the trial Court. The judgment of the trial Court requires to be confirmed by dismissing the appeal. On these grounds, he prayed to dismiss the appeal.
8. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and we have also perused the grounds and the evidence placed on record.
9. On re-appreciation of the evidence it clearly goes to show that the prosecution in order to establish its case examined PW.1-grand-mother of the victim. She has deposed with regard to the victim staying along with her and she went for coolie work and evening she came and noticed that the victim was not present in the house and thereafter she searched and when she went near the house of the accused, she heard the screaming voice of the victim and there she found in the house of the accused and even the victim also disclosed that the accused has sexually assaulted her and on the basis of the said information she filed the complaint and she has also supported the evidence of the prosecution. Even during the course of cross-examination nothing has been elicited so as to discard the evidence.
10. PW.2 is the victim. She has also deposed that she is residing along with her grand-mother PW1 and she has also identified the accused and she has also deposed that at about 4 to 5 p.m. accused called her by stating that her uncle called over the phone and when she went along with the accused, accused closed the door of the house and removed her undergarments and thereafter she has been sexually assaulted and even during the course of cross- examination nothing has been elicited so as to discard the evidence of victim.
11. PW3 is the neighbourer. She has also deposed that PW2 is residing along with PW1 and at about 5.00 p.m. when she had been to fetch butter milk from the house of Gangamma, she met the accused on the way and at that time accused asked about the victim and when she stated that a little while ago, the victim was near her house and she must be somewhere there and she went away and thereafter she came to know that at about 6.00 p.m. the persons have gathered and told that the accused has sexually assaulted the said victim.
12. The evidence of PWs.1 to 3 if it is closely scrutinized, it clearly goes to show that there is corroborations in the evidence of these witnesses. PW3 has categorically deposed that accused asked about the victim and immediately thereafter the victim has been sexually assaulted. That itself clearly goes to show that the accused went and took her to his house and thereafter taking her inside the house has sexually assaulted.
13. Be that as it may. If we peruse the evidence of PW9-doctor who examined the victim on 9.10.2013 has deposed that she had noticed reddish discoloration on left inner surface of vulval outlet with tenderness, hymen was intact. X-ray was taken for age estimation. She has further deposed that, the age of the victim is in between 6 to 8 years and she has also collected undergarments, long skirt, swab from vulval surface and inner aspect of vulval, finger nails of the victim and handed over the same to the police under packed seal. On the basis of the FSL report, she has opined that there was an attempt of sexual assault on the victim. This evidence of PW9 also corroborate with the evidence of PW2-victim.
14. Even PW12 the Scientific Officer has also deposed that the presence of the seminal stains in item No.2 and there were no seminal stains on item Nos.1, 3, 5 to 8 and 10 and this particular evidence is also clearly goes to show that there was sexual assault on the victim PW2.
15. Though it is contended by the learned counsel for the appellant/accused that the hymen is intact, it has been elicited during the course of cross- examination that the hymen will not be ruptured as the penetration may not be upon the hymen in case of a girl like the victim who is aged about 6 to 8 years. It is well established principles of law that even it is not necessary that there must be penetration, if an attempt has been made in this behalf it is sufficient. Then under such circumstances, the provisions of Section 376 of Indian Penal Code are also attracted.
16. Looking from the evidence of PWs.1, 2, 3, 9 and 12, it clearly goes to show that there is sufficient evidence produced by the prosecution to show that it is the accused who has sexually assaulted the minor girl-PW2.
17. During the course of arguments the learned counsel for the appellant/accused submitted that the deposition of the child witness i.e. PW2 victim cannot be relied upon, as it is not going to inspire the confidence of the Court. We are conscious of the fact that the evidence of a child witness is not required to be rejected, but Court as a rule to consider such evidence with close scrutiny. This proposition of law has been laid down in the case of Golla Yelugu Govindu Vs. State of Andhara Pradesh reported in AIR 2008 Supreme Court 1842.
18. We have kept into view the proposition of law laid down by the Hon’ble Apex Court with that background, if the evidence of PW2 if it is looked into the said evidence reposes the confidence of this Court that it is convincing and it is also corroborated with the evidence of PWs.1, 3, 9 and 12.
19. Under the said facts and circumstances the contention of the learned counsel that the evidence of PW2 does not reposes the confidence is not acceptable.
20. We have also gone through the other evidence that there are some minor discrepancies with reference to the age and other factors, but these discrepancies and contradictions are minor and they will not take away the case of the prosecution in any manner.
21. Looking to the case of the prosecution, the prosecution has clearly established all the ingredients of the charges levelled against the accused. The appellant/accused has not made out any good grounds so as to interfere with the judgment of conviction and order of sentence passed by the trial Court.
22. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court after considering the entire evidence, material placed on record has rightly came to a right conclusion, the judgment is neither perverse nor it is illegal. The same requires to be confirmed and accordingly the same is confirmed. Hence, we pass the following order:
Appeal is devoid of merits, hence the same is dismissed by confirming the judgment of conviction and order of sentence passed by the trial Court.
Sd/- JUDGE Sd/- JUDGE *AP/-