IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.377 OF 2019 BETWEEN:
Sri Shekharanna @ Dhobi Shekharappa S/o Ujjappa, Aged about 60 years, Launderer (Dhobi work), R/o Haranahalli Shivamogga Taluk Pin: 577201. …Appellant (By Sri H Malatesh, Advocate) AND:
The State-through Kumsi Police Station, Kumsi, Shivamogga, Represented by the State Public Prosecutor, High Court of Karnataka, Bengaluru-560001. …Respondent (By Sri Vijaykumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) Cr.P.C. praying to set aside the judgment of conviction dated 6.2.2019, passed by the I Additional District and Sessions Judge and Spl. Judge, Shivamogga in S.C.No.69/2016, convicting the appellant/accused for the offence p/u/s. 376(2)(i) of IPC and u/s. 6 of POCSO Act.
This Criminal Appeal coming on for Hearing, this day the Court delivered the following:-
JUDGMENT The present appeal has been filed by the appellant- accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by the I Additional District and Sessions Judge and Special Judge, Shivamogga in S.C.No.69/2016 dated 6.2.2019.
2. I have heard the learned counsel for the appellant and the learned Additional State Public Prosecutor for the respondent-State.
3. The gist of the prosecution case in brief is that the victim aged about 5 years is the elder daughter of the complainant. On 12.5.2015 at about 10.30 a.m. when she was playing, appellant-accused luring her to pay money took her to his shop and locked the door, laid the victim on the cot and put his private part by removing her underwear. When the victim shouted loudly, he opened the door and victim ran way. Immediately, complainant went to the said shop of the accused and saw that the accused was wearing his nicker and on seeing the complainant, he ran away from the hind door. Complainant took the victim and victim revealed the said fact to her mother and immediately victim was taken to Mc.Gann hospital and examined. On the basis of the complaint, case was registered in Crime No.110/2015. After investigation, charge sheet has been filed.
4. The Special Court took cognizance of the offence and secured the presence of the accused. After hearing the learned counsel appearing for the parties, charge was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. As such, trial was fixed. The prosecution in order to prove its case got examined 9 witnesses and marked 13 documents. The trial Court, after hearing the learned counsel appearing for the parties, came to the conclusion that the prosecution has proved the guilt and accordingly, accused was convicted and sentenced. Challenging the legality and correctness of the said judgment, the appellant-accused is before this Court.
5. Main grounds urged by the learned counsel for the appellant are that the Court below without looking into the material placed on record, has erroneously convicted the accused. It is his further submission that the evidence of the Doctor and the document produced at Ex.P11 indicates that there were no external injuries on the body of the victim and even the hymen is also intact. As such, there is no sexual assault, much less, the penetrative sexual assault. It is his further submission that the age of the victim was 5 years at the time of incident and her evidence is not corroborated with the evidence of P.Ws.1 and 4. The evidence of P.Ws.1 and 4 and the evidence of Doctor is contradictory to each other. P.W.1 has deposed that immediately after the incident he went there and found accused wearing underwear and by seeing him, he ran away from the hind door. But, P.W.4 - mother of the victim has stated that accused was present there and was caught hold of and has been assaulted, which creates doubt regarding the presence of the accused at the place of incident. It is his further submission that the accused is aged about 75 years and is not having any intention to commit sexual assault and is also not capable of doing the said act. This fact has not been properly and legally appreciated by the trial Court. It is submitted that the evidence of the victim is not trustworthy and believable. The quality of evidence given itself goes to show that no such incident has taken place as alleged by the prosecution. He has submitted that by taking into consideration age of the accused, some leniency may be shown to the accused and he may be released on probation. On these grounds, he prayed to allow the appeal and to acquit the accused.
6. Per-contra, learned Additional State Public Prosecutor vehemently argued contending that P.W.3, victim has fully supported the case of the prosecution and she withstood the cross-examination. The evidence elicited even during the course of cross-examination indicates that the victim has been sexually assaulted by the accused. It is his further submission that the FSL report Ex.P6 clearly shows that item No.3, pant of the accused, was having seminal stains and the Doctor who examined the victim has also clearly deposed before the Court that immediately after victim was brought to the hospital, she disclosed the history and after examination, the Doctor found that hymen was intact. She has collected the swab and other materials and has given the report as per Ex.P11. During the course of cross-examination, victim has clearly answered the questions posed. It is his submission that when there is no complete penetration, the hymen remains intact and merely because the hymen is intact, it cannot be said that no such offence has taken place and mere penetration itself is sufficient to constitute an offence. It is his further submission that nothing has been brought out during the course of cross-examination so as to discard the evidence of the victim. P.Ws.1 and 4 have also categorically stated regarding what has been disclosed by the victim to them. Taking into consideration the above said facts and circumstances, the trial Court has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the order of the trial Court. Hence, the order of the trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. In order to prove the case of prosecution, it has examined 9 witnesses.
P.W.1 is the father of the victim and he is also the complainant. He has deposed in his evidence that about two years back the victim was less than 5 years and on that day, between 9.30 a.m. and 10.30 a.m. he was proceeding to go to field and crossed about 2-3 houses. At that time, he heard crying voice of victim who was along with his wife. She called her and showed her daughter and on the private part of the victim there were some stains. When he asked the victim, she told that when she was playing, accused came and told that he will give one rupee if she comes to his house and took her to a big hall and she was made to sleep on the cot and the accused inserted his private part into her private part. As there was pain, she cried and came out of the house. When P.W.1went there, accused ran away from the place. Thereafter, they have taken the victim to Mc.Gann hospital and filed the complaint as per Ex.P1. This witness has been cross- examined at length. But during the course of cross- examination nothing has been elicited so as to discard his evidence.
P.W.2 is the Anganawadi teacher. She has produced the date of birth of the victim as 14.6.2010 as per Ex.P3.
P.W.3 is the victim. Since she was aged about 7 years at the time of evidence, she was not administered oath and her deposition has been recorded in the form of question and answer. On going through the answers elicited from the victim it indicates that she has identified the accused and she has also stated as to what the accused done to her. During the course of cross- examination also she has withstood the cross examination and nothing has been elicited so as to discard her evidence.
P.W.4 is the mother of the victim. She has reiterated the evidence of P.W.1. During the course of cross- examination nothing has been elicited so as to discard her evidence.
P.W.5 is the Doctor who examined the accused and issued the certificate as per Ex.P4.
P.W.6 is the spot mahazar pancha to Ex.P2. In his cross-examination also nothing has been elicited so as to discard his evidence.
P.W.7 is the PSI who received the complaint as per Ex.P1 and registered the case and issued FIR as per Ex.P8.
P.W.8 is the Doctor who examined the victim. In her evidence she has deposed that on 12.5.2015 Women Police Constable 1584 brought the victim who was aged about 5 years with the history of sexual assault on 12.5.2015 at about 10.30 a.m. when she was playing near her house. In her evidence she has stated that victim’s father has given the history stating that accused took the victim inside the house, closed the door and made her to lie on the cot. He undressed her and touched her private parts and the said fact was stated by the victim before P.W.4. The Doctor has examined the victim and given the report as per Ex.P11. However, during the course of cross-examination, a question has been posed by the Court that in Ex.P11 she has given the opinion that hymen is intact, but in Ex.P12, it is stated that there are signs of sexual assault, for which, the witness has answered that ‘when there is no complete penetration, may be it by any means, hymen remains intact, hence, I have given the opinion as said in supra’. Except that nothing has been elicited from the mouth of this witness.
PW9 is the Police Inspector who inspected the case and filed the charge sheet as against the accused.
9. On close reading of all these evidence, the evidence of PW3 victim appears to be very important and cogent for the purpose of deciding the case. I am conscious of the fact that if a witness is a child witness, then under such circumstances the Court must be very careful and take all precautions and the depositions of the child may requires corroboration. But in case the deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon the said evidence and if there is no material to show that the child has been tutored, the Court can accept the evidence and bring home the guilt of the accused. This proposition of law has been held in the decision of Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in AIR 2008 SC 1842.
10. Keeping in view the ratio laid down in the above decision, on perusal of the evidence of the victim though it has been suggested during the course of cross-examination of the victim PW3 that she has deposed before the Court that accused has not committed any offence. On the say of her father and mother and at the instance of the Government Advocate the witness has answered as ‘No’ and even the text of the question and answer if it is perused there is consistency in the evidence of this witness and the said evidence has not been shaken and the witness has withstood the cross-examination also. When the said deposition inspires the confidence of the Court and if it is not tutored, then under such circumstances the said evidence can be relied upon. This evidence is also corroborated with the evidence of PWs.1 and 4.
Immediately, the victim has shown her private part, there they found some reddishness and the victim also told that the accused called her, took her inside the house, locked the door and made her to lie on the cot. Thereafter, he sat on her and had sexual assault and when she cried he said her to go. She came out and even immediately thereafter the said fact has been informed to PW1-complainant the father of the victim, he has also reiterated the same. Though PW8 in her evidence has deposed that the hymen is intact, the same has to be examined with reference to the Modi’s Jurisprudence wherein it has been observed that where the victim was just six years old at the time of the alleged incident. In young girls under the age of 12 years hymen is situated relatively more posterior (in backward position) and higher up in a narrow vaginal canal. This prevents the hymen from coming in contact with the male organ in forceful penetration of the organ and in that light the hymen may be intact. Merely because the hymen is intact, then under such circumstances, it cannot be held that there is no sexual assault. Even as could be seen from Sections 375 and 376 of the Indian Penal Code, even penetration itself is sufficient to constitute an offence. In that light also if all the materials are taken into consideration, then under such circumstances, it clearly go to show that the accused took the victim and locked the door, thereafter he has sexually assaulted by penetration on her private part. Even as could be seen from Ex.P6, the FSL report, it indicates that seminal stains were present on Article No.3 i.e. colour pant, the sings of suggestive intercourse are present and even as could be seen from Ex.P11-medical report, in the opinion which has been given by doctor PW8 she has opined that the sings suggestive of forceful vaginal intercourse, signs of suggestive vaginal penetration are present and final opinion is left to FSL and there were signs of suggestive of stains are present and final opinion of sexual assault is kept reserved. All these records if collectively looked together it appears that there is corroboration in the evidence of PW3 and the other material.
11. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and the trial Court after considering the said facts and evidence has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court.
12. Though it is contended by the learned counsel for the appellant that the benefit of Probation of Offenders Act has to be extended, as appellant-accused is the age of 75 years, I am of the considered opinion that the benefit of Probation of Offenders Act is not applicable to the present facts of the case. In that light, the same is not acceptable.
13. Taking into consideration the above said facts and circumstances, the appellant has not made out any good grounds so as to interfere with the judgment of the trial Court. The judgment of the trial Court is deserves to be confirmed.
Appeal is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
Sd/- JUDGE Bkp/AP