IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.258/2019 BETWEEN:
Rajashekara @ Raju @ Raja S/o Durugappa, Aged about 20 years, R/at Maldikere Oni, Kodiyala Hospete Village, Belagola Hobli, Ranebennur Taluk, Haveri District, Pin Code: 571 438.
(By Sri. Shivaswamy, Advocate) AND:
The State of Karnataka, By Arasikere Police, Davangere District.
Pin Code: 571 438.
Represented by State Public Prosecutor, High Court Buildings, Bengaluru – 560 001.
... Appellant ... Respondent (By Sri.M.Divakar Maddur, HCGP) This Crl.A is filed u/s.374(2) of Cr.P.C., praying to set aside the impugned judgment dated 14.12.2018 and sentence dated 15.12.2018 passed by the II Additional District and Sessions Judge and Special Judge at Davanagere in S.C. No.16/2018 convicting the appellant/accused for the offence p/u/s 366 and 376 of IPC and Section 6 of POCSO Act.
This appeal coming on for Orders, this day, the Court delivered the following:
J U D G M E N T Heard the learned counsel for the appellant.
2. Learned High Court Government Pleader is directed to take notice for respondent – State.
3. Though this case is listed for Hearing – Interlocutory Application, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.
4. The present appeal has been preferred by the appellant/accused challenging the legality and correctness of the judgment passed by the Court of II Additional District and Sessions Judge and Special Judge at Davangere in S.C. No.16/2018 dated 14/15.12.2018 where under, the accused is convicted for the offences punishable under Sections 366, 376 of IPC and also under Section 6 of the POCSO Act, 2012.
5. The factual matrix of the case of the prosecution in brief is that since 1 ½ year prior to lodging of the complaint, the accused was in contact with the victim, who was a minor. On 28.10.2017 at 10.00 a.m., when the victim was alone in front of her house, the accused came in a motorbike bearing Regn. No.KA-27/EK-4021 and told the victim that he would take her for a ride and forcibly took her on his motorbike and went to Somashettyhalli from Davanagere and from there, Nalluru, Joladahalu village and there in the house of his relative, kept the victim girl and from 28.10.2017 to 31.10.2017, he committed forcible aggravated penetrative sexual assault on her and he also pacified the minor victim girl stating that he would marry her and thereby, he has committed an offence. On the basis of the missing complaint, a case was registered and thereafter, the accused and the victim were traced. After investigation, the charge sheet was filed. In order to prove the case of the prosecution, it has got examined 37 witnesses and has got marked 33 documents and also 13 material objects thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused has not led any evidence and has not produced any documents. After hearing the learned counsel for the petitioner and the learned Public Prosecutor, the impugned order was came to be passed. Challenging the same, the appellant/accused is before this Court.
6. It is the submission of the learned counsel for the appellant/accused that there is no medical evidence to convict the accused under Section 376 of IPC. It is his further submission that no injuries were found on the body of the victim. Further it is submitted that the FSL report has also not substantiated the case of the prosecution. The victim is aged about 17 years and they have fallen in love with each other and voluntarily she has gone along with the accused. Even, during the course of her evidence she has deposed about the said fact. It is his further submission that the victim was came to be examined as PW.2 and her evidence is having many inconsistencies. It is his further submission that as per the evidence of PW.21- the Doctor, who examined the victim and as per Ex.P23 has opined that there is no evidence of recent sexual act. Further it is submitted that though the accused has been convicted for the offence punishable under Section 376 of IPC, while sentencing, the accused has been combinedly convicted to Section 376 of IPC along with Section 6 of the POCSO Act and he is only sentenced under Section 6 of the POCSO Act. There is illegality in sentencing the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of the trial Court.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that the evidence of the victim and PW.21 is corroborated with each other and the Doctor has opined that the hymen is raptured. It is further submitted that the victim is a minor girl and he has eloped her from the custody of the lawful guardian and thereafter, by keeping the victim in the house of CW.17, he has sexually assaulted her. He further submitted that there is ample material to connect the accused to the alleged crime. The trial Court after considering the said evidence has rightly convicted the accused. It is further submitted that while sentencing, the trial Court has not erred in sentencing for the offence punishable under Section 376 of IPC along with Section 6 of the POCSO Act. On these grounds, he prayed to dismiss the appeal.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. Without discussing anything on the merits of the case, I am of the considered opinion that if the conviction and sentence passed by the trial Court if it is looked into, the trial Court after considering the evidence placed on records has recorded its finding that the accused is guilty of the offences punishable under Sections 366 and 376 of IPC and also Section 6 of the POCSO Act, 2012. Though it has been observed that the accused is convicted for the offence punishable under Section 376 of IPC along with Section 6 of the POCSO Act, but while sentencing the accused, it has sentenced only under Section 6 of the POCSO Act, 2012. Under said facts and circumstance of the case, the sentence imposed by the Court below is not in accordance with law. Though in the order Section 42 of the POCSO Act has been referred but it has not properly understood while imposing the sentence. Section 42 reads as under:
“42. Alternate punishment.-Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or Section 509 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is grater in degree.”
10. The combined sentence for two or more offences is not proper. Accused should be fined separately, imposition of the joint sentence or the fine on the accused is illegal.
11. Section 31(2) of Cr.P.C., makes it clear that in the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: proviso(a) is added to limit the aggregate of the sentence which a Court can pass while making the sentence consecutive. Taking into consideration of the said aspect, though the trial Court convicted the accused for the offences punishable under Section 376 of IPC as well as Section 6 of the POCSO Act, it has been observed that he is sentenced only under Section 6 of the POCSO Act and the said observation itself sends a signal that the sentence is only for the offence punishable under Section 6 of the POCSO Act. It is not a consecutive sentence to both the offences. In that light, the punishment imposed by the Court below is not proper.
12. Even as could be seen from Section 376(1) of IPC, a minimum sentence of 10 years has been stated and the accused is liable for the sentence as well as fine. It is not only sentence. Under such circumstance, the accused has to be convicted and sentenced and he should also be fined. Without looking into the said provision, only by referring to section 42 of the POCSO Act, the trial Court has wrongly convicted.
13. In so far as Section 6 of the POCSO Act is concerned, a minimum sentence is 10 years and fine is also there. When the accused has been convicted for both the offences then under such circumstance, the Court below ought to have sentenced the accused for both the offences and thereafter, it could have been exercised the power that both the sentences must run concurrently then only, the spirit of Section 42 ought to have been taken into consideration. Without doing the same, the trial Court has sentenced only under Section 6 of the POCSO Act. In that light, the said sentence is not in accordance with law and as such, the matter requires to be considered by the trial Court after recording the correct findings for the purpose of conviction and thereafter, appropriate sentence is required to be passed.
14. In the light of discussions held by me above, the judgment passed by the Court of II Additional District and Sessions Judge and Special Judge, at Davanagere in S.C. No.16/2018 dated 14/15.12.2018 is set aside and the matter is remitted to the said Court with a direction to hear the learned counsel appearing for both the parties regarding merits of the case as well as the sentence and after considering the evidence, which has been already recorded, has to pass an appropriate order of conviction and sentence within an outer limit of two months from the date of receipt of this order.
In view of disposal of the main matter, I.A. No.1/2019 does not survive for consideration. Accordingly, the same is disposed off.
VBS Sd/- JUDGE