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2020 DIGILAW 540 (KAR)

State Of Karnataka v. Venkatesh

2020-02-25

K.N.PHANEENDRA, PRADEEP SINGH YERUR

body2020
JUDGMENT 1. Aggrieved by the acquittal of the appellant/accused for the offences under Sections 366 and 376(2)(i) of the Indian Penal Code ('IPC' for short) and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short), and also inadequate sentence passed by the Trial Court for the offence under Section 363 of IPC, the State has preferred this appeal chal lenging the judgment passed by the Trial Court i.e., the Principal District & Sessions Judge and Special Judge, Haveri, in Special Case No.1/2013 vide judgment dated 07.08.2015. 2. Learned Sessions Judge has in fact acquitted the accused for the offences under Sections 376(2)(i) and 366 of IPC and under Sections 3 and 4 of POCSO Act. However, he found him guilty for the offence under Section 363 of IPC though wrongly mentioned as Section 361 of IPC and sentenced him for the period already undergone by him during the pendency of the investigation, enquiry and trial. He also imposed a fine of Rs.5,000/- with a default sentence to undergo simple imprisonment for a period of one month. 3. We have heard the arguments of learned Additional State Public Prosecutor and also the learned counsel for the accused and we have carefully perused the entire oral and documentary evidence on record. 4. On careful perusal of the records, the police on the complaint lodged by PW.1- Neelawwa as per Ex.P.1, registered a case in Crime No.130/2013 for the offence under section 366-A of IPC and after recording statement of the victim girl, the police have converted the case for the offences under Sections 366 and 376(2)(i) of IPC and also under Sections 3 and 4 of POCSO Act and after investigation laid the charge sheet. The Special Court has framed charges against the accused for the above said offences and tried him for the above said offences. 5. The prosecution has examined 10 witnesses as PWs.1 to 10 and got marked Exs.P.1 to P.27 documents and also material objects MOs.1 to 4. Ex.R.1 is also marked on behalf of accused. 6. The Trial Court after evaluating the entire oral and documentary evidence on record has recorded the above said judgment of conviction and sentenced the accused for the offence under Section 363 of IPC only. 7. Ex.R.1 is also marked on behalf of accused. 6. The Trial Court after evaluating the entire oral and documentary evidence on record has recorded the above said judgment of conviction and sentenced the accused for the offence under Section 363 of IPC only. 7. As rightly, contended by the learned counsel that, the entire case revolves around the evidence of PWs.1 and 3, who are the mother of the victim and victim in this regard. There is no need for this Court to in detail go through the evidence of other witnesses, who are formal in nature rather they have not seen any incident by themselves at all. But PW.6 the only person, who is the uncle of the Victim has supported the case of the prosecution to some extent that the accused was loving the victim and he married her and in fact the victim girl has been residing along with the accused. 8. In this background, the Court has to examine whether the Trial Court has committed any serious error in acquitting the accused for the offences under Sections 366A and 376(2)(i) of IPC and also under Sections 3 and 4 of POCSO Act. In fact, PWs.1 and 3 have not supported the case of the prosecution. They have virtually dealt a death blow to the prosecution case by turning totally hostile to the prosecution case. 9. PWs.1 has never stated any allegations against the accused. She has deposed that she has not actually filed any complaint to the police but she has only singed a complaint which was already prepared by the Police and she does not know whether the accused has actually enticed the victim girl and have had any sexual intercourse with her. Though she has admitted her signature at Ex.P.1, but she denied the contents of the said document. Even during the course of cross examination, the whole case of the prosecution including the contents of Ex.P.1 was put to the mouth of this witness, but except denial nothing worth has been elicited during the course of cross-examination. 10. PW.3 is the victim girl and she has also turned hostile to the case of the prosecution, but she has categorically admitted that she knew the accused person, she fell in love with him and they married with each other and she has been residing with the accused. 10. PW.3 is the victim girl and she has also turned hostile to the case of the prosecution, but she has categorically admitted that she knew the accused person, she fell in love with him and they married with each other and she has been residing with the accused. She has never stated anything about any sexual activity or that the accused has committed any sexual act on her at any point of time. She has stated that on the instigation of her mother, she has given a statement before the police. Again, during the course of cross-examination nothing has been elicited in order to take a different view by the Court compared to her examination-in-chief. As we have already noted that PW.6 who is the uncle of PW.3 has only stated that he got the information that the accused and victim were loving each other and they were married and they were living together. 11. There is no specific evidence available on record to establish the age of the victim. Therefore, it cannot be said unless the age of the victim is established that any offence under Sections 366-A and 376(2)(i) of IPC and Sections 3 and 4 of POCSO Act is attracted. No allegation in the evidence before the Court is there to attract the above said provision. Therefore, we do not find any strong reasons to interfere with the judgment of acquittal recorded by the Trial Court, so far as the above said offences are concerned. 12. Coming to the adequacy of the sentence under Section 363 of IPC. The Trial Court has considered that the accused had already undergone a period of 8 months 11 days during the course of enquiry, investigation and trial. Therefore, The Trial Court has considered the same as punishment upon him apart from imposing a fine of Rs.5,000/-. The fine amount, it appears has already been deposited before the Trial Court. 13. The Trial Court has also considered that though the victim was young in age and considering age of the accused also as they fell in love with each other and there is no substantial material to show the exact age of the victim, the Court has given a latitude in sentencing the accused. 14. The record also discloses that the accused was also aged about 22 years as on the date of the alleged offences. 14. The record also discloses that the accused was also aged about 22 years as on the date of the alleged offences. Therefore due to some infatuation, love and affection towards each other, they were attracted each other and in fact, there is an evidence to show that, they were also married with each other and living together. Considering the above said circumstances, the trial court has sentenced the accused in a proper manner. 15. Apart from the above, the learned Additional State Public Prosecutor also did not bring it to the notice of this Court any previous antecedents of the accused and his anti social elements, so as to enhance the sentence. Therefore adequacy of the sentence has to be tested only on the basis of surrounding circumstances. Hence, we are of the opinion that, the Trial Court after considering the entire facts and circumstances and also the surrounding circumstances prevailing and considering the conduct of the accused and the victim girl, rightly sentenced the accused to the period already undergone by him. 16. As the fine amount is already deposited, we do not want to interfere with the judgment of acquittal and sentence passed by the Trial Court for the offence under Section 363 of IPC. Therefore, the appeal is devoid of merit, same is liable to be dismissed, accordingly dismissed.