Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1405 (KAR)

Nagappa v. State Of Karnataka

2020-07-14

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The appellant/accused is before this Court seeking the intervention in the judgment of conviction and order of sentence dated 03.02.2014/07.02.2014 passed by the Principal District and Sessions (Special) Judge, Dharwad in Special SC No.10/2013. 2. We have heard Sri. Rajesh M. Bilki and the learned AGA Sri. Shivaprabhu Hiremath, for the respondent-State by virtual hearing. 3. The gist of the case of the prosecution in brief is that, the complainant is the wife of the accused. Herself, her husband and the victim - the minor daughter aged about 9 years, used to stay at Gudenakatti village. It is further alleged that, the complainant got married to one Gurusiddappa and victim girl was born in the said wedlock. After some time Gurusiddappa deserted the complainant and her daughter and the complainant went to reside in her parental house at Navalgund. Accused was the nearest relative of the complainant and he offered to marry her and also agreed to treat the victim girl as her own daughter and the complainant got married with the accused and started to reside in Gudenakatti after marriage. The minor daughter has studied up to 3rd standard. Thereafter, the accused was proclaiming that the victim girl was not his daughter and she was not born to him and uttering such words, he was causing mental agony to the victim girl as well as the complainant. 4. It is further alleged that, on 05.05.2013 at about 11.00 am, the victim girl went to fetch water from the pond and once she brought the water in a pot and again went to bring the water for the 2nd time. She returned to home at about 12.30 pm by weeping and when the complainant and one more lady by name Yallamma, who has come to their house, questioned her as to why she is weeping. The victim girl explained that the accused after filling the water has taken her to the bund of the lake and in spite of her resistance and making hue and cry, he had sexually assaulted her and threatened her with life. Immediately along with the victim they came to the place where the accused is said to have sexually assaulted her and thereafter by consulting the elders, she filed the complaint on 07.05.2013. 5. On the basis of the complaint, a case has been registered in crime No.63/2013. Immediately along with the victim they came to the place where the accused is said to have sexually assaulted her and thereafter by consulting the elders, she filed the complaint on 07.05.2013. 5. On the basis of the complaint, a case has been registered in crime No.63/2013. Thereafter after investigation charge sheet came to be filed. The learned Special Judge took the cognizance and secured the presence of the accused and after following the formalities he heard the parties and framed the charges. The accused pleaded not guilty. He claimed to be tried and as such, trial was fixed. 6. To prove the case of the prosecution, it got examined 17 witnesses and got marked 18 documents and 10 material objects. Thereafter statement of the accused was recorded by putting incriminating material as against him. He denied the same and he got examined DW1 and filed the written statement. After hearing the learned Public Prosecutor and the learned counsel for the accused, the trial Court came to the conclusion that there is material as against the appellant/accused and convicted him. Challenging the legality and correctness of the same, the appellant/accused is before this Court. 7. The main grounds urged by the learned counsel for the appellant/accused is that, the impugned judgment of conviction and order of sentence passed by the trial Court is contrary to materials placed on record and the same is liable to be set aside. It is his further submission that the trial court basing upon the evidence of PWs. 1, 3, 4 and 5 has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that the evidence of PWs.8 and 9 itself goes to show that there is no recent sexual assault committed by the accused. Under these circumstances, the learned Sessions Judge ought not to have come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. It is his further submission that, the evidence of the prosecution goes to show that there is demand for share in the ancestral property by the accused and in that light a false complaint has been registered to see that the accused must be jailed and they must get the properties. It is his further submission that, the evidence of the prosecution goes to show that there is demand for share in the ancestral property by the accused and in that light a false complaint has been registered to see that the accused must be jailed and they must get the properties. It is his further submission that, though there are no independent witnesses to the alleged incident, only on presumptions and assumptions the trial Court has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 8. Per contra, learned AGA vehemently argued and submitted that the evidence of the victim PW1 and the complainant are corroborated with each other and their evidence is also corroborated with the evidence of PW8, the doctor who has examined the victim and so also the evidence of PW9. The same has also been supported with the medical certificate - Ex.P8. It is his further submission that, merely because no external injuries were found over the body of the victim, that does not mean that the victim has not been sexually assaulted by the accused. The victim was aged 9 years as per age estimation report and the doctor has opined that the patient was used to the act like that of sexual intercourse and the contents of the complaint also goes to show that the accused used to have sexual act with the minor girl by threatening her. Merely because the evidence discloses that there is no evidence of recent sexual intercourse, that does not mean that the accused has not committed any offence. The trial Court after considering the evidence and material placed on record has come to a right conclusion and has rightly convicted the accused. On these grounds he prayed to dismiss the appeal. 9. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 10. In order prove the case of the prosecution, the prosecution got examined as many as 17 witnesses. PW1 is the victim. In her evidence she has deposed that the accused is her father and the complainant is her mother and they are residing together. 10. In order prove the case of the prosecution, the prosecution got examined as many as 17 witnesses. PW1 is the victim. In her evidence she has deposed that the accused is her father and the complainant is her mother and they are residing together. She has deposed that about 2-3 months back, when there was election, at about 9.00 am, her mother by giving a pot asked her to bring the water from the pond and once she brought the water and when she went for bringing the water for the 2nd time, accused came there by saying that he will fill the pot with water, he filled the water and kept it on a katta. Thereafter she has been taken to the back side of the Masjid and there she has been unrobed. By threatening her that he will beat her up and without allowing her to make hue and cry, he has bitten her cheeks and after unrobing himself he has sexually assaulted her. She has further deposed that, even in spite of her resistance he did not left her. Thereafter she got up and after wearing the dress came and informed the same to her mother and during night elders gathered and discussed about the matter and at that time also she has stated the same thing. Thereafter they went and informed the same to the police. She has also further deposed that, when the accused sexually assaulted her, she was having swelling and pain in her private part and she showed the same to her mother. 11. During the course of cross-examination, it has been elicited that when accused made her to lay on the ground and sexually assaulted her, witness stated that the stones have pinched to her body and injury has been caused. Though it is suggested to her that at the instance of her grand father and the complainant she is deposing falsely, the said suggestion has been denied. It has been further suggested that, with an intention to send the accused to jail, she is deposing falsely. The said suggestion was also denied by this witness. This witness has been examined by PW8 - the doctor. 12. Pw8 is the doctor who examined the accused. It has been further suggested that, with an intention to send the accused to jail, she is deposing falsely. The said suggestion was also denied by this witness. This witness has been examined by PW8 - the doctor. 12. Pw8 is the doctor who examined the accused. In her evidence she has deposed that on 07.05.2013 one police constable brought the accused and on his physical examination, there was no injury found on the body of the person and that she collected the nails, pubic hair, semen, shirt, pant and under garments. She has further deposed that there was nothing to suggest that the person cannot perform sexual act and has issued certificate as per Ex.P7. 13. Pw9 is the doctor who examined the victim, who has been brought to him with the history of sexual assault by the father on 05.05.2013 at 12.00 pm. He has further deposed that, no history of bleeding PV/white discharge from the vaginal, no history of pain abdomen or burning micturation and no history of external injuries of trauma. He has further opined that the patient is used to the acts like that of sexual intercourse but there is no evidence of recent sexual intercourse. He has issued the certificate as per Ex.P8. During the course of crossexamination, he has deposed that he has not found any external injuries on the body of the victim and the victim did not disclose any complaint of pain and tenderness over the vagina and the rapture of hymen can be occurred due to self-implication. He has further admitted that, if a man commits forcible intercourse on a child about 10 years, there will be injury on the labia majora and minora. Except that nothing has been suggested by this witness. 14. On perusal of the evidence of the victim PW1 and the evidence of the doctor PW9, the medical evidence corroborates the version of PW1. We are conscious of the fact that, if a witness is a child witness, the evidence is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability, can record conviction based there on. We are conscious of the fact that, if a witness is a child witness, the evidence is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability, can record conviction based there on. On perusal of the evidence of the victim, PW1 she has categorically deposed before the Court that, when she had been to bring the water from the pond, accused also came there and took her near the bund and thereafter that she has been sexually assaulted and immediately thereafter she came and informed the same to her mother PW2. Even as could be seen from the evidence of PW2, the mother of the victim, she has also reiterated the evidence of PW1. Immediately after the alleged incident, the victim has come and informed to the said witness. She has further deposed that, when she examined the private part of the victim girl, it was reddish and was swollen and as she was scared of the accused, she went along with her daughter to the house of one Yallavva and sat there and then thereafter she went to the house of one Kallappa and informed the same and there they have advised her to go to the parental house apprehending any criminal act by the accused and thereafter she went and filed the complaint as per Ex.P1. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness. Though there is delay of two days in filing the complaint, when they apprehend criminal act by the accused and thereafter they went to parental house and after discussing filed the complaint. There is nothing brought on record to show that after deliberation accused has been falsely implicated. 15. On perusal of the evidence of PW3, he has not supported the case of the prosecution and so also PWs. 4 and 5. PW6 is the grand father of the victim. He is the hearsay witness. PW7 is the grand mother of the victim. She has also reiterated the evidence of PW2. 15. On perusal of the evidence of PW3, he has not supported the case of the prosecution and so also PWs. 4 and 5. PW6 is the grand father of the victim. He is the hearsay witness. PW7 is the grand mother of the victim. She has also reiterated the evidence of PW2. PW10 is the doctor who has issued the age determination certificate as per Ex.P9 and after physical, dental and radiological examination he has opined that the victim was aged between 11 and 12 years and this witness has not been cross-examined. PW11 is the Assistant Engineer. He has prepared the sketch of scene of offence as per Ex.P10. PW12 is the panch witness to Ex.P2. PWs. 13 and 14 are also the panch witnesses to Ex.P11. They have not supported the case of the prosecution. 16. On perusal of the evidence of these witnesses, there is ample material to come to the conclusion that the accused has committed the offence on a child as contemplated under the law. When once the prosecution establishes the case to the effect that the accused has sexually assaulted the minor girl, then the duty cast upon the court to draw a presumption as contemplated under Section 29 and 30 of the POCSO Act. Section 30 of the POCSO Act gives the presumption of culpable mental state of the accused while committing the offence and when once the mental state has been presumed, then the accused has to bring the material to disprove the same that he had no such mental state with respect to the act charged. Even as per Section 29 of the POCSO Act, if a person is prosecuted for having committed an offence of sexual assault under the Act, then the Court has to presume that such person has committed or abetted or attempted to commit the offence. In that light, if the evidence produced is looked into, the evidence is cogent and acceptable and accused has not rebutted the said evidence and presumption. Though he got examined DW1, nothing has been elicited so as to discard the evidence of the prosecution. In no way the said evidence is helping the accused to come to the conclusion that he has not committed any offence. 17. Though he got examined DW1, nothing has been elicited so as to discard the evidence of the prosecution. In no way the said evidence is helping the accused to come to the conclusion that he has not committed any offence. 17. Taking into consideration the above facts, we are of the considered opinion that there is material against the appellant/accused No.1 for having committed the sexual assault on the victim PW1. The evidence of PW1 is like that of the injured witness and that is not going to distract the evidence given in this behalf. 18. Though during the course of arguments learned counsel for the appellant/accused No.1 by drawing our attention to the evidence of PWs. 8 and 9 contended that no injuries were found over the body of the victim, so also in the evidence of PW9 - the doctor, has opined that there is no evidence of recent sexual intercourse and as such, the case of the prosecution is not reliable and acceptable. But on perusal of the evidence of PW9 he has not stated that there is no sexual assault at all. He has opined that the patient is used to the act like that of sexual intercourse. That fact corroborates with the evidence of PW2 - the mother and the contents of the complaint Ex.P1. In Ex.P1 she has clearly stated with regard to the earlier sexual assault which are said to have been committed on the victim girl. When the accused used to threaten the victim by holding the lethal weapons and used her for sex, then it cannot be held that the accused has not committed any sexual assault on the victim. The evidence of the doctor indicates that the victim has been acquainted with the sexual act and even the accused has not made out any case that the victim was having sexual relationship with any other person. Under these circumstances, when a presumption has been raised, then the accused has to rebut the said presumption. Looking from any angle, the contentions raised by the learned counsel for the appellant are not based upon any evidence nor they are acceptable. 19. We have carefully and cautiously gone through the judgment of the trial Court. Under these circumstances, when a presumption has been raised, then the accused has to rebut the said presumption. Looking from any angle, the contentions raised by the learned counsel for the appellant are not based upon any evidence nor they are acceptable. 19. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court after considering the material placed on record and by applying the ratio laid down by the Hon'ble Apex Court has come to the right conclusion and has rightly convicted the accused. The said judgment deserves to be confirmed. The appeal is devoid of merits and the same is liable to be dismissed. Accordingly the appeal is dismissed. I.A.2/2012 does not survive for consideration.