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2020 DIGILAW 557 (KAR)

Gunashekar v. State Of Karnataka

2020-02-26

JOHN MICHAEL CUNHA

body2020
JUDGMENT 1. This appeal is directed against the judgment of conviction and order of sentence dated 31.12.2016 passed in Spl.C.C.No.286/2015 on the file of LIII Additional City Civil and Sessions Judge, Bengaluru City, whereby the accused is convicted for the offence punishable under section 11 r/w 12 of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as Act of 2012) and sentenced to undergo simple imprisonment of three years and pay fine of Rs.2,000/- in default to pay fine, to undergo simple imprisonment of another eight months. 2. The prosecutrix PW-2, who was then aged about six years was studying in 1st standard. Her father used to drop her to the school in the morning and in the evening, accused was picking her up from the school in his van bearing No.KA- 09-M-3941 and drop her to her house. On 30.03.2015, at about 3.30 p.m., after dropping other children, on the way, the accused is stated to have stopped the van and with intent to commit sexual assault on the minor girl, opened the zip of his pant and exhibited his private part and asked the victim girl to touch it. She refused to do so. Thereafter, he dropped her in the last stop. 3. The victim narrated the incident to her mother. She in-turn informed the matter to her husband PW-1. According to PW1, he immediately discussed the matter with one of his friend Jayaprakash(PW-7) and both of them proceeded to school and informed the matter to the Principal. The owner of the van Sri.Gopal-PW-5 was alerted. The accused was brought to the school. He was thrashed by the public and was produced before the police. 4. The father of the victim lodged a written complaint as per Ex-P1. Investigation was taken up. The van was seized and on completing investigation, charge sheet was laid against the accused under sections 354A IPC and section 9(m) r/w section 10 of Act of 2012. 5. Initially, charges were framed against the accused under sections 354A IPC and sections 9(m) r/w 10 of Act of 2012. However, amidst the trial, charges were altered by order 08.12.2016 and the altered charges under section 9(m) r/w sections 10 and 18 of Act of 2012 and section 11 r/w and 12 of Act of 2012 were read over and explained to the accused. However, amidst the trial, charges were altered by order 08.12.2016 and the altered charges under section 9(m) r/w sections 10 and 18 of Act of 2012 and section 11 r/w and 12 of Act of 2012 were read over and explained to the accused. The accused denied the charges and did not choose to adduce rebuttal evidence. 6. Considering the above material, the special court was of the opinion that the ingredients of section 7 were not established by the prosecution and therefore, the charge under section 9(m) r/w section 10 r/w 18 of Act of 2012 was held not proved. Likewise, the special court held that the prosecution having failed to prove physical contact and advances involving unwelcome and explicit sexual overtures by the accused, charge under section 354-A IPC was also not established. However, considering the evidence of PW-1 and PW-6 and statement of PW-3, accused was found guilty of the offences punishable under section 11 r/w section 12 of Act of 2012 and consequently sentenced him as stated above. 7. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the accused has preferred this appeal. 8. Learned counsel for the appellant Sri. H.E. Basavaraj while assailing the impugned judgment at the outset submitted that the prosecutrix having wholly turned hostile to the case of the prosecution, there was no basis for the special court to hold the accused guilty of the offence under section 11 r/w section 12 of the Act. Further, in view of the categorical findings recorded by the special court that the prosecution failed to prove the offences under section 354-A IPC as well as sections 9(m) and 10 of Act of 2012, the special Judge has committed an error in convicting the accused for offences under section 11 r/w section 12 of Act of 2012 relying on the statement of PW-3 recorded under section 161 Cr.P.C. Said material was totally inadmissible in evidence and as such no finding of guilt could have been based on the said material. Barring the above evidence, there was no material before the court to hold that the accused committed any act of sexual harassment against the victim. 9. Barring the above evidence, there was no material before the court to hold that the accused committed any act of sexual harassment against the victim. 9. It is the submission of learned counsel for the appellant/accused that the victim herself having failed to identify the accused and having failed to state any act of sexual harassment by the accused and the mother of the victim to whom disclosures are alleged to have been made by the victim at the earliest point of time, having also failed to support the case of the prosecution, the impugned judgment is wholly perverse and being contrary to the records is liable to be set-aside. 10. Learned HCGP appearing for the State however argued in support of the impugned judgment contending that the circumstances brought out on record indicate that the victim as well as the mother were won over by the accused and the under the circumstances, the special judge was justified in placing reliance on the statements of PWs-1 and 6 which were duly corroborated by the statement of PW-3 recorded under section 161 Cr.P.C. and as such, there is no infirmity or illegality whatsoever in the impugned judgment warranting interference by this Court. 11. I have bestowed my careful thought to the submissions made at the Bar and have carefully scrutinized the material on record. The State has not preferred any appeal against the findings recorded by the special court acquitting the accused of the charges under section 354-A IPC and sections 9(m) r/w 10 r/w 18 of Act of 2012. 12. The accused has been convicted for the altered charge under section 11 r/w section 12 of Act of 2012. 13. Section 11 of the Act deals with Sexual Harassment. It reads as under:- 11. Sexual harassment .- A person is said to commit sexual harassment upon a child when such person with sexual intent,- i. utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or ii. makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or iii. makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or iii. shows any object to a child in any form or media for pornographic purposes; or iv. repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or v. threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or vi. entices a child for pornographic purposes or gives gratification therefore. Explanation.- Any question which involves "sexual intent" shall be a question of fact. 14. Section 12 prescribes punishment for sexual harassment. 15. In the instant case, on consideration of the entire material on record, I do not find any material whatsoever in proof of the ingredients of section 11 of Act of 2012. The victim who has been examined before the Court as PW-2 has wholly turned hostile to the case of the prosecution. The preliminary answers put to the victim indicate that on the date of her examination, she was in a position to understand the nature of the questions asked to her and to form a rational opinion as to the questions posed to her. Even when the accused was shown to her, she failed to identify the accused during her examination before the Court. The circumstances noted in the deposition sheet indicate that the victim was put in a very condusive environment by the Presiding Officer and was examined in a friendly atmosphere. The deposition sheet indicates that even her father was present during her examination before the court. Even when she was subjected to cross-examination by the public prosecutor and a specific suggestion was made to the victim that the accused was the one who opened the zip of his pant and showed his private part to her, she on seeing her father denied the suggestion, as a result, the prosecution failed to elicit any circumstances in proof of identity of the accused or with regard to commission of the alleged offences. 16. Even the mother of the victim who was examined as PW-3 failed to support the case of the prosecution. 16. Even the mother of the victim who was examined as PW-3 failed to support the case of the prosecution. According to the prosecution, the victim informed the incident first to her mother. Probably, if the mother supported the case of the prosecution, her evidence could have been considered as relevant under section 7 of the Evidence Act. But, even this witness having failed to support the prosecution, there was absolutely no basis for the prosecution to build up the charge levelled against the accused. 17. The special judge has placed reliance on the evidence of PWs-1 and 6. On going through the evidence of PW-1, no-doubt, he has stated before the court that on enquiry with his daughter viz., PW-3, she informed him that the driver of the van committed the alleged act while she was returning from the school, but there being no clear evidence as to the identity of the driver of the van, no reliance could be placed on the evidence of PW-1 to hold the accused guilty of the alleged offence. No-doubt, the owner of the van has stated that at the relevant time, he had engaged the accused as driver of the aforesaid van, but this statement does not lead to the inference that accused was the person who committed the alleged acts on the victim. The evidence of PWs-1 and 6, may at the most, give rise to a strong suspicion against the accused, but, it is trite law that suspicion however strong cannot take the place of proof. As the prosecution has failed to produce reliable evidence in proof of identity of the accused and having failed to establish the basic facts constituting the ingredients of section 11, even the presumption under sections 29 and 30 of Act of 2012 cannot be drawn to the facts of the instant case. As a result, no worthwhile evidence is available to sustain the charges against the accused. 18. Thus on reconsideration of the entire material on record, I am of the view that the special judge has committed a serious error in convicting the accused for the alleged offences. The findings recorded by the special court are not based on legal evidence. The special court has convicted the accused solely on suspicion by placing reliance on inadmissible piece of evidence. The findings recorded by the special court are not based on legal evidence. The special court has convicted the accused solely on suspicion by placing reliance on inadmissible piece of evidence. Impugned judgment therefore is perverse and cannot be sustained under law and facts of this case. As a result, the appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 31.12.2016 passed in Spl.C.C.No.286/2015 on the file of learned LIII Additional City Civil and Sessions Judge, Bengaluru City are set-aside. Consequently, the accused is acquitted of the charges under sections 11 r/w section 12 of Act of 2012. Bail bond of the accused/appellant is cancelled and the surety bond shall stands discharged.