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2020 DIGILAW 1320 (KAR)

Parasappa Halagi v. State

2020-07-03

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The present appeal has been preferred by the appellant/accused challenging the legality and correctness of the judgment passed by the Principal District and Sessions Judge and Special Judge, Haveri in Spl.SC/ST No.122/2014 dated 11.07.2017. 2. We have heard the learned counsel Sri.T.Hanumareddy for the appellant/accused and Sri.Shivaprabhu Hiremant, AGA for respondent-State. 3. The genesis of the case of the prosecution in brief is that; the victim has been bought up in the house of her aunt Smt.Nagavva. On 19.07.2014, when the complainant and her aunt were sitting and were discussing with regard to the construction of the house at about 11.30 am, the accused who is residing in the same lane came and took the victim assuring that he is going to provide her with a chocolate. Thereafter for some time when the victim did not came back, her aunt and others started searching for the victim and went near the house of the accused. There they noticed that the front door of the house of the accused was not closed fully. They pushed the door, went inside the house and there they noticed that the accused by disrobing himself as well as undressing the victim, was sexually assaulting her and they saw that the victim was crying by saying that she is having pain in her private part. It is further alleged that the accused knowing fully well that the victim was belonging to schedule caste and schedule tribe, has sexually assaulted her. On the basis of the complaint, a case has been registered in Crime No.129/2014. Thereafter after investigation, the charge sheet has been filed. 4. The special Court took cognizance and after hearing and supplying copies of the charge sheet, charge was framed. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. 5. The prosecution in order to prove its case got examined 15 witnesses, got marked 23 documents and 15 material objects. Thereafter the statement of the accused was recorded by putting incriminating materials as against him. He denied the same. But he has not led any evidence or got marked any document. After hearing the learned counsels appearing for the parties, impugned judgment of conviction and order of sentence came to be passed. Challenging the legality and correctness of the same, this appeal is before this Court. 6. He denied the same. But he has not led any evidence or got marked any document. After hearing the learned counsels appearing for the parties, impugned judgment of conviction and order of sentence came to be passed. Challenging the legality and correctness of the same, this appeal is before this Court. 6. The main grounds urged by the learned counsel for the appellant are that the judgment of conviction and order of sentence is contrary to law and the materials placed on record. It is his submission that PW1- father of the victim girl has filed the complaint as if he is the eyewitness to the alleged incident, but in his evidence during the course of examination, he has deposed that he came to know only on the say of the aunt of the victim-Nagavva that the sexual assault has been committed on the victim. Therefore, it is clear that he is not an eye witness to the alleged incident. 7. It is his further submission that though the prosecution has quoted two independent witnesses i.e. PW4 and 5, they have resiled from the case of the prosecution and they have been turned hostile. Under such circumstances, the trial Court ought not to have relied upon only the interested testimony of PW7 and 10. It is his further submission that when the victim herself has been taken to the learned Magistrate for the purpose of recording 164 statement, the learned Magistrate has clearly noted down that the said girl is incapable to give the statement on 24.07.2014. Under such circumstances, the evidence which has been produced before the Court has to be scrutinized with care and caution. The trial Court without looking into the said aspect has come to a wrong conclusion and has wrongly convicted the accused. 8. It is his further submission that the trial Court has not kept in view the amended provisions of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the PSCSO Act', for short). The alleged offence had taken place on 19.07.2014 and at that time, the punishment for Section 4 of POCSO Act was imprisonment for a term, which shall not be less than 7 years, which may be extended to imprisonment for life and shall also be liable for fine. The alleged offence had taken place on 19.07.2014 and at that time, the punishment for Section 4 of POCSO Act was imprisonment for a term, which shall not be less than 7 years, which may be extended to imprisonment for life and shall also be liable for fine. Taking into consideration the age of the accused, the minimum sentence ought to have been granted or awarded by the trial Court. 9. It is his further submission that even while convicting the accused for the offence punishable under Section 376(2)(i) of IPC that the Court below has not taken into consideration the punishment which has been prescribed in this behalf. On these grounds he prayed to allow the appeal and to set aside the judgment of trial Court. 10. Per contra learned AGA vehemently argued and submitted that the prosecution has got examined the complainant-father of the victim, the aunt of the victim and the victim herself and all of them have categorically deposed before the Court about the sexual assault committed on the victim, knowing fully well that she belonged to 'valmiki' community and the said evidence also corroborated with Ex.P16, whereunder the doctor has clearly opined that the hymen of the victim has been torn and she has also given her opinion that the injuries found on the body of the victim, are suggestive of forceful vaginal penetration and that recent sign of sexual intercourse present. In that light, all these materials clearly goes to show that the accused has taken the victim girl under the pretext of giving chocolate and has sexually assaulted her. There are no good grounds made out by the appellant/accused so as to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. 11. We have carefully and cautiously given our thoughtful consideration to the judgment of the trial Court and we have also scrutinized the evidence, documents, including the trial Court records. 12. The prosecution in order to establish its case has got examined as many as 15 witnesses. PW1 is none other than the father of the victim. He has reiterated the contents of the complaint Ex.P1. During the course of cross examination, he has deposed at paragraph 5, that when PW7-Nagavva informed that the victim has been sexually assaulted, then he came to know about the said incident. PW1 is none other than the father of the victim. He has reiterated the contents of the complaint Ex.P1. During the course of cross examination, he has deposed at paragraph 5, that when PW7-Nagavva informed that the victim has been sexually assaulted, then he came to know about the said incident. In that light, evidence of this witness, does not go to help the case of the prosecution in any manner but however, he is the person who has kept the criminal law into motion, on the basis of which, the investigation has been made. 13. It is well settled proposition of law that anybody can set the criminal law into motion and in that light much importance cannot be attached to the evidence of this witness though it is contended by the learned counsel for the appellant that he has filed the complaint as if he is an eye witness to the alleged incident. However, he has deposed with reference to the case and the knowledge about the said fact through PW7-Nagavva. In that light, there is no material to discard that part of the evidence of this witness. 14. Pw2 is the spot mahazar pancha to Ex.P5 and he has also witness to the sketch Ex.P6, where the articles at the spot, have been seized. PW3 is also the seizure mahazar pancha of MO 1 to 6 under Ex.P7. These two witnesses have supported the case of the prosecution. PW4 and 5 are independent eye witnesses to the alleged incident, but they have given gobye to their statement. They have been treated as hostile and nothing has been elicited from the mouth of this witness to substantiate the case of the prosecution. 15. Pw6 is the woman police constable, who recorded the statement of the aunt of the victim. PW7 is the aunt of the victim, in her evidence she has deposed that herself and PW1 were sitting and talking with regard to the construction of the house and they belonged to 'hindu valmiki' community and at that time the accused-Parasappa Halagi came their and he took the victim, who was sitting on her lap, by telling that he will give chocolate and took her to the shop. Even after an hour, when she did not return, they went in search of her, to the house of the accused. Even after an hour, when she did not return, they went in search of her, to the house of the accused. The house of the accused was also in the same lane and that the door of the house was not latched, but it was little bit closed and by pushing the door, they went inside and there in the kitchen near the door, the accused was seen disrobed and the victim was also seen without any dress. The accused was sexually assaulting her. Witness stated that she immediately pulled him out and she saw the private part of the victim was reddish and that the victim told that she is having pain in her private part. This witness has been cross examined at length, but nothing has been elicited so as to disbelieve her evidence. 16. Pw8 is the circumstantial witness who has deposed that he came to know about the sexual assault committed by the accused and the complaint given to the police. PW9 is the doctor who has issued the fitness certificate after examining the accused as per Ex.P13. He has deposed that there was scratch mark near his right eyes and he had paraphimosis and bruies over glans penis and he noticed recent signs of sexual intercourse present. He has opined that the said injuries indicate that there was forceful sexual assault by the accused. During the course of cross examination, it has been elicited that even if the accused was assaulted, some of the injuries found on his body may be caused. The other suggestions have been denied by this witness. 17. Pw10 is the victim girl. She has also reiterated the evidence of PW7 and she has fully supported the case of the prosecution by deposing that she has been disrobed and the accused has committed penetrative sexual assault. During the course of cross examination though several questions have been put to this witness, she has withstood the cross examination and nothing has been elicited so as to discard her evidence. 18. Pw11 is the police constable who has carried the seized articles for chemical examination to RFSL. PW12 is the police constable who carried the FIR-Ex.P15, to the Jurisdictional Court and submitted the same. 19. Pw13 is the doctor who examined the victim and has given the report as per Ex.P16. 18. Pw11 is the police constable who has carried the seized articles for chemical examination to RFSL. PW12 is the police constable who carried the FIR-Ex.P15, to the Jurisdictional Court and submitted the same. 19. Pw13 is the doctor who examined the victim and has given the report as per Ex.P16. In her evidence she has deposed that she has examined the victim with a history of sexual assault. The victim was telling that there was pain in her private part. When she examined, she noticed that hymen was torned and she has collected the vaginal swab and other articles and sent them for chemical examination. She has also given her opinion as per Ex.P17. During the course of cross examination that nothing has been elicited so as to discard the evidence of this witness. 20. Pw14 is the PSI who registered the case, on the basis of the complaint as per Ex.P1 and has issued the FIR as per Ex.P15. PW15 is the investigating office who investigated the case and filed charge sheet as against the accused. It is contended by the learned counsel for the appellant/accused that the accused has been falsely implicated in the case, but the evidence of PW7, 10 and 13 that it corroborate with each other. 21. The victim herself has clearly deposed before the Court that the accused took her by assuring that she will be given chocolate and thereafter by taking her to his house has undressed himself and thereafter by disrobing her, has committed penetrative sexual assault on her. The evidence of PW13 also clearly goes to show that the age of the victim was four years and even her hymen was torn and the injuries were suggestive of forceful vaginal penetration and she has also further deposed that there is penetrative sexual assault on the victim PW10. 22. The evidence of PW10 is like that of an injured witness. The criminal jurisprudence attaches great weightage to the evidence of the injured, as it presumes that the said witness speaks the truth unless shown otherwise. 22. The evidence of PW10 is like that of an injured witness. The criminal jurisprudence attaches great weightage to the evidence of the injured, as it presumes that the said witness speaks the truth unless shown otherwise. Under the similar facts and circumstances, on perusal of her evidence, the status of the victim stands similar to that of the injured witness and by taking into consideration the age of the victim as four years and that the hymen has been ruptured and she has also complained pain in her private part coupled with the evidence of the doctor, who has examined the accused and given the report to the effect that there were recent signs of sexual intercourse present in the form of edema of glans penis/paraphimosis. Moreover the evidence of the doctor who examined the victim also suggests recent sexual act committed on her. 23. When the prosecution is successful in proving commission of the offence by the accused by placing necessary materials, Sections 29 and 30 of the POCSO Act comes into operation. Sections 29 and 30 of the POCSO Act reads as under: "Section 29. Presumption as to certain offences:- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. Section 30. Presumption of culpable mental state:- (1)In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact." 24. Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact." 24. Even though these two legal presumptions will arise in the case and the accused is required to rebut these presumptions, he has failed to do so either by cross-examining the prosecution witnesses or by leading any rebuttal evidence. 25. If all these materials have been looked into, it indicates that the accused has taken the victim to his house and then committed penetrative sexual assault on her and thereby he has committed the offence alleged against him and the accused is liable to be convicted for the offence charged. 26. On perusal of these evidences, we are of the considered opinion that the trial Court after looking into all these aspects has come to the right conclusion that the accused has committed the offence. 27. At this juncture, the learned counsel for the appellant/accused contended that the trial Court has not looked into the provisions of law which was existing at the time of commission of the offence while sentencing the accused. 28. Section 4 of the POCSO Act reads as under: "4. Punishment for penetrative sexual assault. (1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine. (3) The fine imposed under sub-section(1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim." 29. Sub-Section (2) and (3) were inserted by way of amendment to the Act with effect from 16.08.2019. The date of offence in the present case is on 19.07.2014. As on that date even the minimum sentence prescribed under Section 4 was not ten years but it was seven years. Sub-Section (2) and (3) were inserted by way of amendment to the Act with effect from 16.08.2019. The date of offence in the present case is on 19.07.2014. As on that date even the minimum sentence prescribed under Section 4 was not ten years but it was seven years. But however, the learned session Judge observed that, since the punishment provided under Section 4(2) of the POSCO Act and Section 376(2)(i) of the IPC are similar, it is not necessary to impose separate sentence. But on perusal of Section 376(2)(i), the punishment is rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life. Subsequently on 21.04.2018, Section 376(2)(i) has been omitted. In that light the trial Court ought to have imposed separate sentence. 30. It is the submission of the learned counsel for the appellant/accused that the accused is aged more than 64 years and he is also having some health problems and there are nobody to look after his family members and hence leniency may be shown to the accused, while imposing the sentence. 31. We are conscious of the fact that, in case of sexual assault committed on minors, no leniency can be shown, but however, taking into consideration the age of the accused, if he is convicted for the minimum sentence which is provided under the statute, then it is going to meet the ends of justice. The minimum sentence provided under Section 4 of the POCSO Act prior to the amendment is seven years. Section 376(2)(i) of the IPC as it was before amendment, provided for the punishment which is greater in degree i.e. for a minimum sentence of ten years. Therefore, if the sentence is imposed for ten years, it is going to meet the ends of justice. 32. In that light, we are of the opinion that, if the appellant/accused is convicted for a period of ten years for the offence punishable under Section 376(2)(i) of IPC and if he is ordered to pay fine of Rs.10,000/- with default sentence of one year, then it is going to meet the ends of justice. 33. With the above observations, we pass the following order: ORDER The appeal is partly allowed. The judgment of conviction passed by the Principal District and Sessions Judge, Haveri in Special SC/ST No.122/2014 dated 11.07.2017 is confirmed. 33. With the above observations, we pass the following order: ORDER The appeal is partly allowed. The judgment of conviction passed by the Principal District and Sessions Judge, Haveri in Special SC/ST No.122/2014 dated 11.07.2017 is confirmed. Insofar as sentence imposed for the offence under Section 376(2)(i) of IPC is concerned, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of 10 years and ordered to pay a fine of Rs.10,000/- with a default sentence of one year. Insofar as the sentence imposed for the offence punishable under Sections 3(1)(xi) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is concerned, the same is confirmed. All the sentences shall run concurrently and the accused shall be given set off under Section 428 Cr.P.C.