IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H. P. SANDESH CRIMINAL APPEAL NO.9 OF 2018 Between:
Vinay Kumar S/o Prakash Pojari Aged about 27 years Occ: Agriculturist R/o Hiremythi Village Hosanagara Taluk Shivamogga District – 577 418 (By Sri. Umesh P.B, Advocate for Sri. R. B. Deshpande, Advocate) And:
The State of Karnataka by Ripponpet Police Station Ripponpet, Shivamogga District – 577 426 Represented by State Public Prosecutor High Court Buildings Bengaluru – 560 001 (By Sri. K. Nageshwarapaa, HCGP) …Appellant ...Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment and order of conviction dated 16.11.2017 and sentence dated 18.11.2017 passed by the I Additional District and Sessions Judge and Special Judge, Shivamogga in S.C.No.150/2015 – convicting the appellant/accused for the offence punishable under Section 341 of IPC and Section 8 of Protection of Children from Sexual Offences Act.
This Criminal Appeal coming on for Hearing, this day, the Court delivered the following:-
JUDGMENT This appeal is filed by the accused against the judgment of conviction passed by the learned I Additional District and Sessions Judge and Special Judge, Shivamogga in Sessions case No.150/2015 for the offence punishable under Section 341 of Indian Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offences Act, 2012.
2. Brief facts of the case are that the complainant is aged about 17 years and she was studying in II PUC at Ripponpete and she used to travel by bus from her native to 18th Milestone. On 17.08.2015, at 2.45 p.m., when she was returning to home by walk, the accused came in a motor bike bearing registration No.KA-15-Q-7805, wrongfully restrained her by holding her hand and dragged her with an intention to have sexual act and when the victim refused and protested, the accused tried to drag her. At that time, she saw that CW2 was coming in Omni car. On seeing him, victim girl screamed for help and CW2 stopped the vehicle at the spot. She told CW2 about the attempt made by the accused. The accused fled away from the spot and disappeared in the forest. Immediately, CW2 secured father of CW1 and others and searched for accused but they could not trace him out. But, the accused had left the motor bike at the spot. Police came and drew mahazar after lodging the complaint and seized the bike. Thereafter, on the same day, accused was arrested. The victim girl was sent to hospital for medical examination and she identified the accused in the police station.
3. Based on the complaint of the victim girl, the police have registered a case for the offence punishable under Sections 341 and 354D of IPC and under Sections 8 and 12 of the POCSO Act. The investigating officer after conducting the spot mahazar, seizure of motor bike and recording the statement of victim girl as well as other witnesses filed charge sheet against the accused for the said offence. The accused was secured and he did not plead guilty and claimed trial. Hence, the prosecution in order to substantiate the case, examined witnesses as PW1 to PW10 and got marked Exs.P1 to P7(a) and also material object at MO-1. On closure of evidence of prosecution side, statement of accused under Section 313 of Cr.P.C was recorded. The accused denied the incriminating evidence and did not choose to lead any evidence. After closure of the evidence, the Court below heard the public prosecutor and defence counsel and after considering both oral and documentary evidence convicted the accused for the offence punishable under Section 341 of IPC and Section 8 of the POCSO Act and acquitted the accused for the offence punishable under Section 354 D and Section 12 of the POCSO Act. Hence, being aggrieved by the judgment and order of conviction, the present appeal is filed.
4. Learned counsel for the appellant-accused contended that the Court below has committed an error in relying on the testimony of PWs 4, 7 and 10 when their evidence does not corroborate with each other and the very finding of the court below suffers from legal infirmity. The learned Sessions Judge should have acquitted the appellant on the ground that the evidence of PW1 is inconsistent and contrary to the contents of the complaint and the ingredients of Section 8 of the POCSO Act is not attracted against the accused and hence, it is a fit case to reverse the finding of the court below. PW1 categorically states that except her, no one has seen the accused. But PW4 claims that he has seen the accused at the spot. Hence, even the evidence of PW4 cannot be believed. The Court below has committed an error in considering mainly the evidence of PW1 as her evidence is inconsistent and she was not having prior acquaintance with the accused. When such being the case, the Court below ought to have extended the benefit of doubt in favour of the accused.
5. Per contra, learned HCGP appearing for the State contended that the Court below has rightly considered the evidence of victim girl, who has been examined as PW1 and so also the person, who came immediately to the spot i.e., PW4. The accused had left the motor bike at the spot and the same was seized in the spot mahazar in terms of Ex.P2. Nothing is elicited in the cross-examination of PW1 and 4 that they were having prior enmity against the accused and nothing suggests that accused has been falsely implicated in the case and hence, there are no grounds to interfere with the order of conviction. Hence, he prays to dismiss the appeal.
6. Having heard the learned counsel for the appellant-accused and the learned HCGP for the respondent-State and on perusal of the oral and documentary evidence, the points that arises for consideration are:
‘i) Whether the Court below has committed an error in convicting the accused for the offence punishable under Section 341 of IPC and Section 8 of the POCSO Act and whether it requires interference by this Court?
ii) What Order?’ 7. The sum and substance of the case of the prosecution is that the accused with an intention to have sexual act wrongfully restrained the victim girl by holding her hands and tried to drag her. The victim girl refused and protested and when PW4 came to the spot in the omni car, she sought help of PW4. Then, the accused leaving his motor bike at the spot ran away in the forest area. Thereafter, the motor bike was seized and the accused was arrested.
8. The prosecution in order to prove the case mainly relied upon the evidence of PW1 i.e., victim girl and also evidence of PW4, who came to the spot in the omni car and also relied upon the evidence of PW5, who is the panch witness to Ex.P2 – Mahazar. PW6 went to spot on information and found the victim girl, PW4 and also motor bike. The other witness is PW7, who also went to spot i.e., the father of the victim. He also reiterates that the motor bike was at the spot. PW8 arrested the accused and produced him in the police station before the investigating officer. PW9 is the investigating officer, who conducted further investigation and seized the motor bike and took Ex.P3- Photograpah and also prepared the sketch in terms of Ex.P6 and in terms of the Court order, he released the vehicle i.e., the motor bike in favour of the father of the accused.
9. In the cross-examination of PW1, nothing is suggested with regard to falsely implicating the accused in the case. It is elicited that the name of the accused was inserted in the last line and she cannot tell, who informed the name of the accused as Vinay Kumar. It is elicited that she wrote the name of the accused in the presence of police. It is further elicited that except her, no one has seen the accused at the spot. Hence, it is clear that the evidence of PW4 that he has seen the accused at the spot cannot be accepted. However, circumstances discloses that at the time of incident, he went to spot in the maruthi omni car and the victim girl sought his help. The fact that the motor bike was left at the spot is not in dispute and the same was seized and subsequently, got released by the father of the accused.
It is also important to note that in the cross- examination of PW1, it is elicited from the mouth of PW1 that she identified the accused at the police station when he was arrested and she has seen the accused in the police station. When the victim girl’s evidence is consistent and nothing is elicited in the cross- examination of PW1 with regard to false implication of the accused, the defence which has been suggested to the father of the victim that he was having enmity against the accused cannot be accepted. The defence taken by the accused while cross-examining the father of the victim is nothing but an after thought. No doubt in the cross examination of PW5, it is elicited that he has seen the motor bike in the police station and the motor bike was not there while taking photo. He has further deposed that the bike in the photo and the bike in the police station were both one and the same. But the evidence of other witnesses, who rushed to the spot is specific that they found the motor bike at the spot.
The evidence of victim girl, PW4 corroborates with the evidence of other witnesses that an incident has taken place. It is further important to note that PW1 was not having any prior acquaintance with the accused and when such being the case, the question of implicating the accused and registering a false case does not arise. If there was any prior acquaintance or any enmity, only then the Court can consider the same and hence, the defence of the accused cannot be accepted, that too, only an after thought suggested to the father of the victim. Having considered the sole evidence of PW1, who is the victim and when she has also identified the accused in the police station, the very evidence of PW1 with regard to the incident is concerned is enough.
10. There is no dispute with regard to the fact that she is a minor, who is aged 17 years and the prosecution also relies upon the school certificate marked as Ex.P5, which discloses the date of birth of the girl as 30.07.1998. The date of incident is 17.08.2015. Under Section 2(d) of the POCSO Act, any child, who is below the age of 18 years is a minor and hence, the Court below did not commit an error in convicting the accused for the offence punishable under Section 341 of IPC and under Section 8 of the POCSO Act. The main contention of learned counsel for the accused is that ingredients of Section 7 does not attract invoking Section 8 of the POCSO Act. The said contention cannot be accepted. Later part of Section 7 of the POCSO Act is clear that if any person does any other act with sexual intent, which involves physical contact without penetration is said to commit sexual assault. In the instant case, no doubt accused except holding her hand has not made physical contact on the victim girl.
11. The Court below fails to take note of this aspect and no doubt, the punishment provided under Section 8 of the POCSO Act, prescribes that the punishment shall not be less than three years, which may extend to five years and also shall be liable to fine. Having considered the factual aspects of the case, except an attempt made to hold her hand, no other acts are committed by the accused. Having taken the said fact into consideration, this Court by assigning special reasons to reduce the sentence. The Court below has sentenced the accused to undergo rigorous imprisonment for a period of one month and to pay fine of Rs.500/- for the offence punishable under Section 341 of IPC and for the offence punishable under Section 8 of POCSO Act, he is sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.30,000/-.
12. Taking into account the gravity of the offence and factual aspect of the case, it is appropriate to enhance the fine amount instead of subjecting the accused to sentence. He has already been in custody for a period of five days and the same has been set off and instead of imprisonment, fine amount is increased from Rs.30,000/- to Rs.1 lakh and hence, the appeal is liable to be allowed in part only with regard to the sentence is concerned and not for conviction. The conviction is continued.
13. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The sentence passed against the accused for the offence punishable under Section 341 of Indian Penal Code and under Section 8 of the POCSO Act is modified by enhancing the fine amount from Rs.30,000/- to Rs.1,00,000/-. The said amount shall be paid by the accused within a period of eight weeks from today.
(iii) The sentence of punishment is given set- off since the accused was in custody for a period of five days, if fine amount is paid within time.
(iv) In default of payment of the fine amount within the aforesaid period, the sentence and fine imposed by the Court below is to be restored. The Court below is directed to secure the accused and subject him for sentence.
Sd/- JUDGE dn/-