IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.51 OF 2019 BETWEEN:
SRI PRAKASH, S/O BALAKRISHNA, AGED ABOUT 33 YEARS, DRIVER OF AUTO RICKSHAW, RESIDING IN THE LINE HOUSE, OF BALEKADU ESTATE, GADDEHALLA POST, SUNTICOPPA, KODAGU DISTRICT, PIN - 571237. ...APPELLANT (BY SRI RAHUL RAI K, ADVOCATE) AND:
THE STATE OF KARNATAKA, THROUGH SUNTICOPPA, POLICE STATION KODAGU, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA, BANGALORE - 560001. …RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 15.12.2018, PASSED BY THE PRINCIPAL SESSIONS JUDGE, KODAGU AT MADIKERI IN S.C.NO.66/2018, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 354-A(1)(I) OF IPC AND SECTION 8 OF POCSO ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal has been preferred by the appellant/accused challenging the judgment dated 15.12.2018 passed by the Principal Sessions Judge, Kodagu, Madikeri, in Special Case No.66/2018.
2. I have heard the learned counsel for the appellant and the learned Additional State Public Prosecutor for the respondent-State.
3. The case of the prosecution in brief is that on 16.11.2017 at about 9.30 a.m., the victim and her friend Nethravathi were standing on the side of the road to go to their school. At that time, the accused came with his autorickshaw by saying that he will drop them to school.
Believing the words of the accused, they boarded the autorickshaw and the accused drew the autorickshaw along with the victim and her friend towards Balekadu estate and then he stopped the autorickshaw. Thereafter, he dragged the victim by holding her hand and after taking inside the coffee estate, caught hold of her, hugged her and kissed her and when the complainant asked the accused as to whether he is having wife and children or not and what he is doing and when PW2 Nethravathi came and made a cry, immediately, the accused taking his autorickshaw went away from that place. The victim and her friend did not go to the school and they returned home. Later, as they were upset and not in a good mood, they left home thinking of going somewhere and left home by walk to go to Kushalnagar. While going to Kushalnagar, the Kushalnagar police came and took them to the Police Station and made an enquiry, but they did not inform the true facts, but stated that their class teacher had scolded them and hence they were upset. Thereafter, the Kushalnagar police brought them to Suntikoppa Police Station and the family members of the victim came to the station and took the victim and her friend to the house. Because of the fear, they did not tell the said fact to the police or to the members of the family and when the victim’s aunt subsequently pressurized and went on asking the victim to tell the true facts, and thereafter, the victim explained to her aunt about the said incident and later, a complaint was registered.
4. The main grounds urged by the learned counsel for the appellant are that the judgment and the order of sentence is contrary to law, evidence and materials placed on record. The trial Court has committed a serious error in appreciating the evidence. It is his further submission that, there are contradictions and omissions in the statement of the witnesses; the said aspects have not been properly appreciated and the trial Court has wrongly convicted the accused. It is his further submission that, the alleged incident has taken place in the coffee estate. The security personnel will be there and also other persons will be working. Under such circumstances, the happening of the event as alleged by the victim and her friend is a make belief story. This aspect has not been properly considered and appreciated by the trial Court. It is his further submission that, there is a delay of two days in filing the complaint. It is his further submission that, the prosecution has failed to prove the case beyond reasonable doubt. Inspite of that, the trial Court has wrongly convicted the accused. It is his further submission that, the version which has been stated in the complaint is not stated in 164 statement and that there is improvements in the evidence of PW1. If all the materials are considered, it clearly goes to show that without there being any material, the trial Court has wrongly convicted the accused. On these grounds, the learned counsel for the appellant prays to allow the appeal by setting aside the impugned judgment and prays to acquit the appellant.
5. Per contra, learned Additional State Public Prosecutor has vehemently argued and submitted that, PW1 is the victim and PW2 is the friend of the victim who was present at the time of the incident, their evidence is consistent and corroborative about the alleged incident having taken place. It is his further submission that, as on the date, the victim was a minor and there is nothing elucidated to discard their evidence during the course of cross-examination. It is his further submission that, there is a delay of two days and the same has been properly explained at the time of filing complaint. It is his further submission that, the act of the accused is nothing but it is a stigma on the character of the victim and there is no variation in the evidence of these two witnesses. It is his further submission that, there are some contradictions. But the said contradictions are minor and they will not go to the root of the prosecution case so as to discard the evidence and acquit the accused. On these grounds, he prays to dismiss the appeal as devoid of merits.
6. I have carefully and cogently gone through the submissions made by the learned counsel for the appellant and learned Additional State Public Prosecutor and perused the records.
7. In order to prove the case of the prosecution, the prosecution got examined nine witnesses. PW1 is the victim. In her evidence, she has reiterated what has been stated in the complaint. She has deposed that, on 16.11.2017, when they were waiting to go to the school, at that time, the accused came in an autorickshaw and told that he will drop them to the school. But, thereafter when they boarded the autorickshaw, he took them to a forest area and went inside the coffee estate and parked the autorickshaw and by holding the victim’s right hand took her inside the coffee estate and he dragged her beneath a tree, he hugged and kissed her and at that time, she asked whether he is having wife and children and at that time, Nethravathi – PW2 who was inside the autorickshaw, made a cry and by seeing her, the accused took the autorickshaw and went away from that place. She has further deposed that they were not in good mood and upset, thinking to go somewhere and they were proceeding in Kushalnagar’s way and at that time, the police came and took them to Kushalnagar Police Station and there they informed that the school teacher has assaulted and that is why they are fed up and going away. The Kushalnagar police informed the same to Suntikoppa police and the Suntikoppa police came and took the victim and her friend to their Police Station and upon information her aunt came to Suntikoppa Police Station and took them back to the house. On 18.11.2017, her aunt pressurized the victim and made enquiry, at that time, she disclosed the true facts and thereafter, she has filed a complaint as per Exhibit-P1. During the course of cross-examination, she has admitted that in the first instance, she did not reveal the true facts and did not file a complaint. But after her aunt’s pressure, she revealed the true facts and later a complaint was filed. The other suggestions have been denied by the said victims. PW2 is a friend of the victim. She has also reiterated the evidence of PW1, nothing has been brought in cross-examination so as to discard the evidence given by PW1 and PW2. PW3 is the aunt of the victim. She has stated that after coming to know that PW1 and PW2 were in Suntikoppa Police Station, they went to Suntikoppa Police Station and they have brought them back and when she insisted and at that time, PW1 disclosed the act of the accused. During the course of cross-examination, nothing has been elucidated so as to discard the evidence of these witnesses. PW4 is the spot mahazar pancha to Exhibit-P2. PW5 is the seizure mahazar pancha to Exhibits-P5 and P4. He is particularly treated as hostile. PW6 is also the seizure mahazar and witness to Exhibits-P4. He is also particularly treated as hostile. PW7 is the Vice Principal, he has issued Exhibit-
P6 showing the Date of Birth of the victim as 15.01.2002. PW8 is the Assistant Sub-Inspector who registered the case on the basis of the complaint – Exhibit-P1 and issued FIR as per Exhibit-P8. PW9 is the Police Sub-Inspector who investigated the case and filed the chargesheet against the accused.
8. Though, it is contended by the learned counsel for the appellant that there is a delay of two days in filing the complaint, I am conscious of the fact that if there is a delay and if the delay has not been properly explained, then in such circumstances, it can be inferred that only after deliberations, a false case has been registered. But, in the instant case, the victim as well as her friend, immediately after the incident, they are upset and they were going away instead of going to the house and at that time, the Kushalnagar Police noticing the same, took them to Police Station and later called Suntikoppa police and Suntikoppa police came and took them to their station and they intimated the father and aunt of the victim and the aunt came and took them back to the house and at the instigation and pressure of PW3, she disclosed the true facts and thereafter, the complaint has been filed. Usually, when such instances take place, no Indian woman will come forward immediately and file a complaint, as the stigma and character of the woman is involved in the case. Taking into consideration the above said facts and circumstances, the delay of two days is not going to take away the case of prosecution. Evidence of PW1 and PW2 is corroborative with each other about alleged incident and there is no material brought on record during the course of cross-examination to discard their evidence. PW4 is the spot mahazar pancha to Exhibit-P2. PW5 is the seizure mahazar pancha to Exhibits-P5 and P4. PW6 is also the seizure mahazar and witness to Exhibits-P5 and P4. PW7 is the Vice-Principal, who has certified the date of birth of the victim as 16.01.2002, which itself clearly goes to show that the victim as on the date of the alleged incident was 16 years and she was a minor. PW8 is the Assistant Sub- Inspector who has registered the case and issued FIR. PW9 is the Police Sub-Inspector who investigated the case and filed the chargesheet.
9. On a close reading of the evidence of PW1 and PW2, it clearly indicates that the alleged incident has taken place, as contended by the victim. Though during the course of arguments, learned counsel for the appellant contended that, it is a coffee estate and security persons will be there and without their permission, nobody can enter into the said estate and some workers were also working in it. But the said contention has not been substantiated by any of the witnesses and the same has been denied.
10. Be that as it may, even though, security persons are there, the coffee estate which will be big one is not fenced so that nobody can enter into the said estate and there is no prohibition as such. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the said contention is not having any force and the same is not liable to be accepted.
11. Looking from any angle, the prosecution has clearly and cogently proved the case. There are no good grounds so as to interfere with the judgment of the trial Court.
12. Though during the course of arguments, learned counsel for the appellant contended that the provisions of Sections 7 and 8 of Protection of Children from Sexual Offences Act, 2012 are not attracted and that the main Section 11 is attracted. But, on close scrutiny of the materials placed on record, the provisions of Section 11 is not attracted. The trial Court has considered the factual matrix and has rightly framed the charges under Sections 7 and 8 of Protection of Children from Sexual Offences Act, 2012, and has rightly convicted the accused for the offences which are punishable under Section 354-
A(1)(i) of the Indian Penal Code and under Section 8 of Protection of Children from Sexual Offences Act, 2012, which is also justified by taking into consideration the materials placed on record.
13. Taking into consideration the above said facts and circumstances, the appellant has not made out good grounds so as to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. The criminal appeal is devoid of merits and the same is liable to be dismissed.
Accordingly, the criminal appeal is dismissed.
Sd/- JUDGE SJ