IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.5/2018 BETWEEN SRI. SUBRAMANI S/O. VENKATARAMAPPA AGED ABOUT 30 YEARS R/AT: REDDY HALLI VILLAGE BANGARPET TALUK, K.G.F.
KOLAR DISTIRCT ... APPELLANT (By Sri. NANJUNDA GOWDA M R, ADV.,) AND STATE OF KARNATAKA BY BETHAMANGALA POLICE REPRESENTED BY SPP HIGH COURT BULDINGS BENGALURU-560 001 ... RESPONDENT (By Sri. K.NAGESHWARAPPA, HCGP) THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER ON SENTENCE DATED 21.12.2017 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, KOLAR IN S.C.NO.105/2013-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES P/U/Ss.376 AND 417 OF IPC AND SEC.4 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012, ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant/accused challenging the Judgment of conviction and order on sentence dated 21.12.2017 passed by the II Additional District and Sessions Judge at Kolar in S.C.No.105/2013 for the offences punishable under Sections 376 and 417 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).
2. The brief facts of the case are as follows:
It is the case of the prosecution that the appellant/accused is the neighbour of the victim. Both of them developed an intimacy between them and the accused promised her to marry and committed sexual act on several occasions. That on 12.03.2013 at 2 p.m., the accused again committed the rape on her and when she requested him to marry her on the ground that she was three months pregnant, he did not agree and inturn he told that he will give compensation and refused to marry her. Hence, the victim brought the said fact to the knowledge of her parents. Panchayath was held. In the Panchayath also, he did not agree to marry her and complaint was given. Based on the complaint, the police have registered a case in Crime No.21/2013 against the accused.
3. It is also the case of the prosecution that the victim is a minor girl, aged about 17 years and 3 months and accused has committed a heinous offence against a minor child, thereby committed the offences punishable under Sections 376 and 417 of IPC and Section 4 of the POCSO Act. The Investigating Officer, who conducted the investigation after collecting the material and necessary documents from the concerned authority, filed a charge sheet for the offences punishable under Sections 376 and 417 of IPC and Section 4 of the POCSO Act. The accused was secured before the Court and he did not plead guilty and he claims trial.
4. The prosecution in order to prove its case examined PWs.1 to 15 and got marked Exs.P-1 to P- 12.
5. After closure of the prosecution evidence, the accused statement was recorded under Section 313 of Cr.P.C, wherein, the accused had denied the incriminating circumstances. The accused did not choose to lead any defence evidence. Hence, the Trial Court heard the arguments of learned Public Prosecutor and also the defence counsel. After considering both oral and documentary evidence, convicted the accused for the charges levelled against him and hence, the accused has filed the present appeal before this Court.
6. The grounds urged in the appeal are that the Court below failed to record the findings on the question of reality, credibility of the witnesses and failed to take the other circumstances. The Court Below resorted to unfounded surmises and conjectures and in spite of no clinching and cogent evidence, the Court Below has committed an error in convicting the accused. The Court Below has committed an error in relying upon the evidence of PW-2 and in the cross-examination of PW-2, she has admitted that both are friends and both were loving each other and she never refused to love him and often and often she was visiting the accused and the same has not been considered by the Court Below in a proper perspective.
7. The evidence of the Doctor, who treated the victim is quite contrary to the evidence of PW-2. PW-2 claims that she was examined on 20.03.2013. The Doctor deposes that she had not found any injuries and also she had not found that PW-2 was pregnant. The evidence of PW-2 is exaggerated, emotional and unbelievable and the same is artificial in nature. In terms of Ex.P-9, age of the victim is about 18 years and the person, who made the entry has not been examined and the Court below has committed an error in relying upon the evidence of the Doctor and also the victim, particularly, the evidence of PW-2 does not inspire the confidence of the Court to convict the accused and hence, it requires an interference by this Court.
8. The learned counsel appearing for the accused also in his arguments, vehemently contended that the very nature of the evidence of PW-2 is artificial in nature and medical evidence also does not support the case of the victim. The evidence of parents also full of exaggeration and PW-2’s evidence was also not consistent and does not inspire the confidence of the Court to convict the accused. The learned counsel also would submit that no doubt committing an offence against a minor girl is a very heinous offence and while convicting the accused there must be the evidence of unblemishness and in the case on hand both the evidence of the prosecutrix as well as her parents and also the evidence of the Doctor does not inspire the confidence of the Court and it requires an interference by this Court.
9. Per contra, the learned High Court Government Pleader for the respondent/State would submit that the victim is aged about 17 years and 3 months and Ex.P-9 is marked to prove the same. The same is not disputed. The evidence of PW-1, Dr.Sudha Rani, who conducted the medical examination of the victim has issued the Certificate in terms of Ex.P-1. The Certificate is clear that she was subjected to sexual act, but it is mentioned that the intercourse has occurred in past, not recently and nothing is cross-examined in respect of the evidence of PW-1 that she was not subjected to any sexual act. The Court has to take note of the evidence of the victim and if it is found to be reliable that itself is sufficient to convict the culprit and no corroboration of her evidence is necessary. In a case of rape, the law does not demand the corroboration and the very evidence of the prosecutrix alone may sustain the conviction and the Court has to analyse the evidence with due care and caution. The Court Below did not commit any error in appreciating the evidence available on record and hence, it does not require any interference by this Court and prayed this Court to dismiss the appeal.
10. Having heard the arguments of the learned counsel appearing for the appellant/accused and also the learned High Court Government Pleader appearing for the respondent/State, this Court has to re- appreciate the material available on record and after re-appreciating the evidence available on record, the points that arise for consideration of this Court are:
(1) Whether the Court Below has committed an error in convicting the accused for the offences punishable under Sections 376 and 417 of IPC and Section 4 of the POCSO Act and it requires an interference of this Court?
(2) What order?
Point No.1:
Before considering the oral and documentary evidence, first this Court would like to clarify with regard to the age of the victim. The prosecution relied upon Ex.P-9 through the evidence of PW-10, who is the in-charge Head Master and he attested the signature as Ex.P-9(a).
Learned counsel for the accused did not dispute Ex.P-9 and date of birth, mentioned as 07.06.1996.
According to the prosecution, the victim was subjected to rape on 12.03.2013 and also it is the case of the prosecution that prior to that, the accused has committed the rape on her four months prior to the said incident on several occasions under the guise of promise to marry her and when she told the accused that she became pregnant and requested him to marry her, he turned hostile and hence, she brought the said fact to the notice of her parents. For having taken note of the date of birth and also date of incident, it is clear that she was below the age of 18 years. This Court would like to mention the proviso of Section of 2(d) of the POCSO Act and it defines that “child” means any person below the age of “eighteen years”. Hence, in view of the above enactment, the victim is a child under the POCSO Act.
Section 3 of the POCSO Act is clear that:
“A person is said to commit “penetrative sexual assault” if (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person;”
(b) x x x (c) x x x (d) x x x Section 4 of the POCSO Act defines Punishment for penetrative sexual assault, which reads as:
“Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.”
11. Having considered the penal proviso of the POCSO Act and also the age of the victim, who is below the age of 18 years and the Certificate is also not disputed by the learned counsel appearing for the accused. Hence, it is clear that she is a child and she was subjected to sexual act according to the prosecution.
12. In keeping view of Section 4 of the POCSO Act as well as the material available on record and also the rival contentions of the appellant’s Counsel and also the learned High Court Government Pleader appearing for the State, this Court has to re- appreciate the evidence.
13. Before considering the evidence of the victim, who has been examined as PW-2, this Court would like to consider the evidence of the Doctor, who has been examined as PW-1. The evidence of PW-1 is clear that on 20.3.2013 at 12.30 a.m. in the morning, the victim was produced before the Doctor by the Women Police Constable and she examined the victim. The victim also accompanied by her mother and she gave the history that one Subramani, who is the accused took her and committed rape on her. On examination, she found no injuries on her. The hymen was ruptured and the same was old one and she was subjected to pregnancy test, but she was not pregnant. It is the evidence of the Doctor that she was subjected to rape in past, but not recently. She has given the opinion in terms of Ex.P-1. In the cross-examination, it is elicited that the victim has given the history, that should have been mentioned in the Certificate. It is suggested that the history was given by the mother of the victim and the same was denied. It is elicited that she was subjected to rape. If hymen was ruptured and the same cannot be the basis for coming to the conclusion that she was subjected to Sexual Act. Now, the evidence of PW-2 is that she is having an acquaintance with the accused and that on 12.03.2013 at 2-00 clock, the accused took her to the house of CW.7 i.e., Srinivasa and committed rape on her. While committing the rape also, he promised that he would marry her and he was telling the same from two months prior to the said incident. Again, she says four months prior to the said incident, she was continued to the sexual act in the house of CW-7 for more than four times. When she told him that she became pregnant and he refused to marry her, then, she informed to her parents. Then, panchayath was held. In the Panchayath, Ramesh, Jayarama, Vasantha and others were also participated and advised the accused and he did not heed to the advise of the panchayatdars. Hence, she gave complaint – Ex.P-2 and thereafter she was subjected to medical examination. The police also held the spot mahazar in terms of Ex.P-3 and thereafter she was produced before the Magistrate and her statement was recorded in terms of Ex.P-4. She identifies her signature both in Ex.P-2 and also in Ex.P-4. The victim was subjected to cross-examination. In the cross- examination, it is elicited that at the time of the incident, the accused had fell in love with her and hence, she did not refuse to do the same. It is also elicited that he was having a son and his name is Bhaskar and he is staying along with his wife, mother and also brother-in-law. She was not visiting his house. But he was coming to her house, the same was not aware by her parents. It is elicited in the cross-examination that there was blood stains on the clothes and also she scratches on his face and on his back and he has sustained the injuries. She has produced her clothes before the Doctor. She claims that her pregnancy was terminated in K.G.F. Government Hospital, when she went to her maternal parents house. It is suggested in the cross- examination of PW-2 that he had not promised to marry her from last two months and the same was denied. It is further suggested that after she became pregnant, she had asked the accused to marry her and the said suggestion was denied. It is suggested that the panchayatdars Ramesh, Jayarama, Vasantha and others have not participated in the panchayath and they have also not advised the accused and the same was denied. It is suggested that there was an enmity between the two community people i.e., Banajiga community people and Kuruba community people and the same was denied. It is suggested that the accused is a leader of Kuruba community and her father was a leader of Banajiga community. Hence, accused was given complaint against Banajiga community and there was an enmity between them and hence a false complaint was given and the same was denied. The other witnesses are PWs.3 and 4 – father and mother and in their evidence, they have deposed that they came to know about the rape through their daughter and when the accused refused to marry the victim, she informed the same to them and hence, Panchayath was held. In spite of advise by the panchayathdars, the accused did not heed to their advise. In the cross-examination of PW-3, it is elicited that the complaint was given after five days of the Panchayath and the Panchayath was held near the Gowramma Temple. It is suggested that there was a clash between two communities and the victim had given the complaint against him and hence, the police called and compromised the matter and the said suggestion was denied. It is suggested that due to enmity, a false complaint was given and the same was denied.
14. PW-4 is the mother. She reiterates the evidence of PW-3 and in the cross-examination, she claims that her daughter was three months pregnant and her daughter only revealed about the rape. The panchayathdars, who have been examined as PWs.5 and 6 have turned hostile. The other witness in whose house, the incident of rape was committed has been examined as PW-7 and he also turned hostile. PW-8 has also turned hostile. PW-9 is the spot mahazar witness speaks about the victim, showed the place of incident and mahazar was drawn. The other witness – PW.11 is also a spot mahazar witness. She supported the case of the prosecution.
15. PW-12 is the Doctor, who conducted the medical examination of the accused and in his evidence he says he gave the Certificate in terms of Ex.P-10 and he issued the Certificate of Potency. The other witnesses are the police witnesses, who have examined as PWs.13 to 15. The Investigating Officer, who conducted the investigation has not been examined before the Court. Now, this Court has to re- appreciate the evidence available on record.
16. On perusal of evidence of PW-1, it is clear that there was no injury on the victim when the victim was subjected to medical examination and also it is the evidence that she was subjected to rape but not recently and Certificate also issued in terms of Ex.P-1 and also it is the evidence that she was not pregnant when she was subjected to medical examination i.e., on 20.03.2013. It is the evidence of PWs.2 to 4 that due to the sexual act of the accused, the victim was pregnant and it is the evidence of these witnesses that particularly PW-2 that on the guise of promise to marry her, he had sexual act with her more than 4 to 5 times. When she became pregnant, she asked the accused to marry her, but he refused. It has to be noted that in the cross-examination, it is elicited that accused No.1 was already married and having a son. The main contention of the learned counsel for the accused in his arguments is that the evidence of PW-2 is artificial in nature and full of exaggeration. No doubt, it appears, there are exaggerations and embellishments in the cross-examination of PW-2. It is also important to note that the victim is a rustic witness, who studied upto SSLC. Thereafter, discontinued her education and Court cannot expect mathematical niceties when the rustic witness has been examined.
17. I would like to rely upon the Judgment of the Apex Court in the case of State of Uttar Pradesh v. Chhotey Lal reported in (2011) 2 SCC 550. The Apex Court in this Judgment in paragraphs No.22 to 25 and 26 to 28 discussed with regard to the testimony of prosecutrix with regard to the evidentiary value and when the corroboration is required and when the corroboration is not required. It is held as a matter of fact, evidence of prosecutrix is similar to evidence of injured complainant or witness. If testimony of prosecutrix is found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. The Apex Court further observed that, in prosecution for rape, the law does not require corroboration and the evidence of prosecutrix alone may sustain for conviction. The Apex Court also in the very same judgment has observed that, in a Criminal Justice System in India, the Court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Indian society is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix, the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society’s belief and value systems need to be kept uppermost in mind, as rape is the worst form of women’s oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most likely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape.
18. On perusal of the cross-examination of PW- 2, no doubt, certain answers are elicited with regard to the fact that when the incident of forcible rape was committed, some people who were gathered in the spot tried to hold the accused but she deposed that he escaped. It is also elicited that clothes were given to the Doctor and in the case on hand, it has to be noted that when the spot mahazar was conducted, nothing was seized at the instance of the victim and there is no need of FSL report. It has to be noted that, the Court Below while convicting the accused made an observation in paragraph No.28 of the Judgment that there is no positive finding in the FSL. But further observation was made that the clothes were collected and they were not sent to FSL at belated stage and there may be various reasons as to not getting positive findings and the very observations of the Trial Court is erroneous. Primarily, any seizure of clothes or any articles were not sent to FSL and there was no report before the Court and so, the Investigating Officer has also not been examined by the Court and none of the witnesses have spoken for collecting of the clothes and sending the same to the FSL and the very approach of the Trial Court is erroneous without any material. The Court Below also made an observation with regard to termination of pregnancy and on perusal of the records only PW-2 has narrated in the evidence that she was subjected to pregnancy termination at the K.G.F. Government Hospital, but no material is placed before the Court with regard to the termination of her pregnancy. It has to be noted that no doubt the Court Below has made certain observations without any material. But that does not take away the case of the prosecution. The Court has to take note of the material available on record that too in a case of heinous crime of rape. The evidence of the victim is material. No doubt, in the cross- examination of PW-2 and also in the cross- examination of PW-3, father of the victim, a suggestion was made that there was a rivalry in the village since both of them belongs to different communities. Hence, the accused has been falsely implicated in the case. Both PW-2 and also PW-3 have denied the said suggestion. It has to be noted that the medical evidence is clear that the hymen was ruptured and the evidence of the Doctor, PW-1 is clear that it was old one and in terms of Ex.P-1, the Doctor has opined that she was subjected to intercourse, the same was occurred in past and not recently. In the cross-examination of PW-1, Doctor, nothing is elicited with regard to the evidence that she was subjected to sexual intercourse but only elicited that the history was not recorded on the say of the victim. But Doctor has deposed that, the mother had accompanied the victim and she gave the history.
19. In the cross-examination of PW-1, no worthwhile cross - examination has been done to discard the evidence of the Doctor and it is settled principle that when the evidence of the victim is found reliable, there was no need of medical corroboration, but in the case on hand, there was a medical corroboration also that she was subjected to intercourse. It is also the evidence of PW-2 that she was subjected to sexual act on 12.03.2013 and examination was done on 20.03.2013 and there was a gap of 08 days. It is also important to note that the evidence of prosecutrix is that she did not resist the sexual act since the accused had promised her that he would marry her and she became pregnant. He turned hostile and did not come forward to marry her. Panchayath was held and also he did not heed to the panchayatdars’ advise. Hence, she was forced to give a complaint before the police and thereafter she was subjected to medical examination. No doubt, there are minor contradictions in the evidence of PW-2 with regard to the seizure of clothes and there were blood stains and semen on victim’s clothes and Investigating Officer did not seize the same. But, PW-2 claims that she gave her clothes to the Doctor. The Doctor in turn has not given to the police that does not mean that she was not subjected to sexual act.
20. The medical evidence corroborates the evidence of PW-2. The learned counsel appearing for the accused vehemently contends that the nature of evidence given by PW-2 does not inspire the confidence of the Court and there was an exaggeration. The Apex Court in the Judgment referred to supra itself held that it is bound to occur the contradictions, inconsistences, exaggerations or embellishments, minor contradictions or inconsistencies were immaterial. Minor contradictions and omissions in testimony of prosecutrix bound to occur, who being illiterate and rustic young woman. In the evidence of prosecutirx, some contradictions and omissions were natural. In the case on hand also, I have already pointed out the victim has failed in SSLC and she discontinued her education. The accused being a married person, subjected the girl, who is aged about 17 years and 3 months for sexual act on the guise of promising her to marry. Hence, the Court also cannot expect the mathematical niceties while appreciating the evidence that too in a case of rustic young minor girl, who was subjected to rape. It is also held in the judgment referred to supra, no parents of the young girl come forward to falsely implicate any person and the very accusation of rape amounts to stigma and the same attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. Though it is suggested that there was an enmity, nothing is placed before the Court that there was an enmity and it is suggested that the accused had given a complaint against the father of the victim and no material is placed before the Court. It is suggested that he is the leader of particular Kuruba community and hence, he has been implicated. In order to show that he is a leader of particular community, no material is placed before the Court.
21. In the absence of any enmity and no parents wants to attach any stigma on the life of the minor victim girl, I have already pointed out that the child below the age of 18 years under the POCSO Act would become the child. It is the offence against the child and the crime committed by the accused is heinous one and question of consent also does not arise. When she is a minor and also under the definition of Section 2(d) of POCSO Act, she is a child and that too, the girl, who is aged about 17 years and 3 months and subjecting her for sexual act is nothing but a heinous crime. Though, the Court Below while appreciating the material available on record, committed an error in making certain observations without any material, but having been considered the factual aspects of the case and also the medical evidence coupled with the evidence of the victim, I do not find any reason to reverse the findings of the Trial Court and in the case on hand, the girl, who is aged 17 years and 3 months was subjected to sexual act and false promise was made and subjected her to sexual act. In the cross-examination of PW-2, the defence itself is suggested that when she became pregnant, then only she demanded the accused to marry her and the very suggestion itself discloses that the accused had sexual act with the victim. The evidence of PW.1 and victim evidence corroborating the case of prosecution. The Court below rightly considered the evidence of prosecution evidence and no merits in the appeal.
22. In view of the discussions made above, I proceed to pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE cp*