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2021 DIGILAW 880 (KAR)

Haji Kareem v. State of Karnataka

2021-09-23

MOHAMMAD NAWAZ

body2021
JUDGMENT : In this appeal, Judgment and Order dated 27.04.2017/04.05.2017 passed by the II Addl. Sessions Judge at Kalaburagi in Special Case [POCSO] No.5/2014, convicting and sentencing the appellant for offences punishable under Sections 366, 372(2)(n) of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act' for short] is under challenge. 2. I have heard the learned Counsel Sri. Mahantesh H. Desai, appearing for appellant and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for respondent/State and perused the entire material and evidence on record. 3. Brief facts; The first informant Sri. Narasappa-P.W.1 is a resident of Aasar Mohalla, Chittapur. He has 4 daughters and one son. His daughter/victim is aged about 17 years and she is prosecuting her studies in II year PUC. On 10.11.2013, at about 8.00 p.m., after dinner she went out of the house to clean the plate, but did not return. Complainant-P.W.1 along with his wife-Mahadevi-P.W.3 and another daughter Rekha-P.W.14 went in search of her, but she was not traced. Thereafter, when he made enquiry with his neighbour Khairunbee-P.W.4, she informed him about seeing the victim/P.W.2 going in an autorickshaw towards the bus stand along with the accused/appellant. All of them went in search of her. However, she was not traced. 4. On a complaint lodged by P.W.1, a case was registered against accused/appellant in Crime No.149/2013 of Chittapur Police Station, Gulbarga District, for offence punishable under Section 366(A) of IPC. On registration of the case by P.W.10, spot mahazar was conducted. In the course of investigation, prosecutrix as well as the accused were traced in the house of one Rasoolmiya at Batagera village on 06.12.2013. Investigation was taken over by P.W.16-Investigation Officer. Medical examination of the prosecutrix was conducted. On completion of investigation charge-sheet was filed. 5. Before the Trial Court, charges were framed against the accused/appellant for offences punishable under Sections 366, 376(2)(n), 506 of IPC and Section 6 of POCSO Act. 6. The prosecution, in order to establish the guilt of the accused, got examined PWs.1 to 17 and got marked Exs.P1 to P20. The accused got himself examined as DW.1. 7. The learned Sessions Judge, after appreciating the evidence and material on record, acquitted the accused for the offence punishable under Section 506 of IPC and convicted for the other charged offences. 8. The accused got himself examined as DW.1. 7. The learned Sessions Judge, after appreciating the evidence and material on record, acquitted the accused for the offence punishable under Section 506 of IPC and convicted for the other charged offences. 8. It is contended by the learned counsel for the appellant that the allegations against the appellant that by inducing the victim he kidnapped her and committed forcible sexual intercourse are all false. He contends that the case of the prosecution that the victim and the accused stayed in a house for more than 20 days itself shows that there was no force or threat or inducement. It is his contention that the Trial Court having acquitted the accused of offence punishable under Section 506 of IPC, has erroneously convicted him for the other charged offences without there being sufficient material against him. He contends that the prosecution has failed to establish that the victim was a minor at the time of incident in question and the Trial Court has committed a grave error in relying upon the Study Certificate issued by PW.5 to hold that the victim was a minor aged below 18 years. He contends that the prosecution has not placed any reliable or authentic document to prove the age of the prosecutrix and also failed to confirm her age by medical examination and therefore, benefit of doubt has to go to the accused. He further contends that the fact that the prosecutrix herself went out of the house and stayed with the accused from 10.11.2013 to 06.12.2013, goes to show that there was consent on her part and she was not induced or threatened or detained by the accused. He therefore contends that in the absence of any sufficient material to prove the age of the prosecutrix, the Trial Court was not justified in convicting the appellant and submits that the same has resulted in miscarriage of justice. Accordingly, he seeks to allow the appeal. 9. Per contra, learned High Court Government Pleader has contended that the accused/appellant by enticing the prosecutrix/PW.2, kidnapped her from the lawful custody of her parents and took her to Hyderabad and from there to Batagera village, wherein he committed aggravated penetrative sexual assault on her. Accordingly, he seeks to allow the appeal. 9. Per contra, learned High Court Government Pleader has contended that the accused/appellant by enticing the prosecutrix/PW.2, kidnapped her from the lawful custody of her parents and took her to Hyderabad and from there to Batagera village, wherein he committed aggravated penetrative sexual assault on her. He submits that the prosecutrix, who is examined as PW.2 has supported the case of prosecution and her evidence is further corroborated by the evidence of PWs.1, 3 and 14. He contends that prosecution has been able to establish the age of the victim by examining the Principal of the P.U. College, where the prosecutrix was studying and as per the Study Certificate marked at Ex.P6, the date of birth of the victim is 05.05.1997 which clearly shows that the prosecutrix was a minor at the time of incident. He further contends that the appellant has kidnapped the prosecutrix on 10.11.2013 and they were traced together on 06.12.2013 and during the said period, the prosecutrix has not attended her classes. He therefore contends that the learned Sessions Judge having appreciated the entire evidence and material on record has rightly convicted the accused/appellant and there is no illegality committed by the Trial Court. Accordingly, seeks to dismiss the appeal. 10. The complaint is lodged by victim's father. He is examined as PW.1. Complaint is marked as Ex.P1. PW.1 has deposed that on the date of incident at about 8.00 p.m. after dinner, his daughter went out of the house to clean the plate and thereafter she did not return. They searched for her and came to know from his neighbour Smt. Khairunbee (PW.4) that his daughter was seen going towards the bus stand in an auto rickshaw. Hence, suspecting the role of the accused, he lodged a complaint to the police. He has stated that after about 25 days, the police traced his daughter from Chittapur and brought to the police station, wherein she disclosed that the accused/appellant had kidnapped her and kept her in a house at Batagera for about 20 days, during which period he committed forcible sexual intercourse on her. He has also deposed that his daughter informed that before going to Batagera, the accused took her to Sedam and from there to Chincholi and from there she was taken to Hyderabad and then to Batagera. He has also deposed that his daughter informed that before going to Batagera, the accused took her to Sedam and from there to Chincholi and from there she was taken to Hyderabad and then to Batagera. He has deposed that at the time of incident, his daughter was aged about 17 years. 11. With regard to the age of the victim, in the cross-examination, he has stated that his daughter's birth took place in the house and he is not aware as to whether her date of birth has been registered in the concerned department. He has further stated that at the time of her admission to school, he has given her date of birth on an assumption and he is not aware of furnishing any document. 12. PW.2 is the prosecutrix. She has deposed that at the time of incident, she was studying in II PUC and her date of birth is 05.05.1997. On 10.11.2013 at about 8.00 p.m. she had come out of the house to wash the dishes. On that day, the accused had telephoned to her to come near the Masjid. Accordingly, she had gone near the Masjid, wherein the accused had come in an auto rickshaw and by threatening her, took her in the said auto rickshaw. Then he took her to Sedam in a bus and from there to Chincholi. In Chincholi, they stayed in the house of his relative till 10.00 a.m. and then he took her in a bus to Hyderabad, wherein for two days they stayed in the Railway Station. On 14.11.2013, she was taken to Batagera and they stayed in the house of a relative of the accused. She has further deposed that with an assurance of marriage, accused committed penetrative sexual assault on her inspite of her resistance and he repeated the said act till 04.12.2013. On the said day, the police came to Batagera and took both of them to the Police Station. 13. In the cross-examination of PW.2, she has admitted that she knew accused for the past one year and further that when they went to Hyderabad and from there to Batagera, there were several people present in the bus stand as well as in the Railway Station. However, she has stated that since accused had threatened her, she did not raise any hue and cry. 14. PW.3 is victim's mother. However, she has stated that since accused had threatened her, she did not raise any hue and cry. 14. PW.3 is victim's mother. She has corroborated the evidence of PWs.1 and 2. 15. PW.4 is the neighbour of PW.1. She has deposed that she has seen the prosecutrix going in an auto rickshaw with one boy. Thereafter, the parents of the victim came in search of their daughter and she informed them about their daughter going in an auto rickshaw with someone. However, she has denied having informed the victim's parents that she saw victim going along with the accused/appellant. She has been treated hostile by the prosecution. 16. PW.5 is the Principal of the P.U. College, where the prosecutrix was pursuing her studies in II PUC. He has issued the birth/study certificate of the Prosecutrix which is marked as Ex.P6, according to which the date of birth of the victim is 05.05.1997. Copy of the Attendance Register extract is marked as Ex.P7. 17. PW.5 in his cross-examination has deposed that he is not aware as to who furnished the date of birth of the victim at the time of her admission to the school and he is not aware as to on what basis the date of birth was entered. He has also stated that the parents have not collected the original T.C or the SSLC Marks Card. 18. PWs.6 and 8 are the panch witnesses to the spot mahazars -Exs.P8 and P11 respectively. However, they have turned hostile. Their evidence is not helpful to the case of prosecution. 19. PW.7 is the owner of the house at Batagera, where both the prosecutrix and accused have stayed from 14.11.2013 to 06.12.2013. However, she has not supported the case of prosecution and she has been treated hostile. 20. PW.9 is the Police Constable, who traced the prosecutrix as well as the accused at Batagera on 06.12.2013 in the house of one Rasoolmiya. 21. PW.10 is the Head Constable, who registered the complaint lodged by PW.1 as per Ex.P1 and issued FIR -Ex.P13 to the jurisdictional Court. He has conducted panchanama as per Ex.P11. 22. PW.11 is the Medical Officer, who examined the prosecutrix and issued the certificate as per Ex.P16. She has opined that the absence of hymen indicates that the girl used to an act of sexual intercourse and that she was subjected to sexual intercourse repeatedly etc. 23. He has conducted panchanama as per Ex.P11. 22. PW.11 is the Medical Officer, who examined the prosecutrix and issued the certificate as per Ex.P16. She has opined that the absence of hymen indicates that the girl used to an act of sexual intercourse and that she was subjected to sexual intercourse repeatedly etc. 23. In the cross-examination she has stated that, in the certificate she has not stated that the victim girl was subjected to sexual intercourse. She has further stated, absence of seminal stain and spermatozoa may be due to non discharge and she cannot tell since how long hymen was absent. She has further stated that the age of a person can be estimated by subjecting the person to dental examination and radiological examination. There is a dentist in her hospital, who on that day was not available. There is no radiologist in her hospital. Further, she did not find it necessary to refer the girl to Government Hospital at Kalaburagi for estimation of her age. 24. PW.12 is the Police Constable, who transmitted the FIR-ExP13 to the jurisdictional Court. 25. PW.13 is the Doctor, who examined the accused and issued certificate as per Ex.P18. 26. PW.14 is the elder sister of the victim. She has corroborated the evidence of PWs.1 to 3. 27. PW.15 is the panch witness to the spot mahazar - Ex.P11. 28. PW.16 is the Investigation Officer, who took over investigation on 06.12.2013 and on completion, laid the charge sheet. 29. PW.17 is the PSI, who conducted part of investigation. He has deposed that on 06.12.2013 at about 5.00 p.m., the victim and the accused were produced before him and he sent the victim for medical examination and thereafter handed over the investigation to CPI-PW.16. 30. The accused has examined himself as DW.1. He has stated that for the past two years, he was acquainted with the prosecutrix. She was in love with him and informed him that her parents are looking for a boy for her and since she liked him, both of them should elope and marry. He advised her that they are from different community and therefore it is not proper to do so. She was in love with him and informed him that her parents are looking for a boy for her and since she liked him, both of them should elope and marry. He advised her that they are from different community and therefore it is not proper to do so. However, she telephoned to him and informed that she has come near the Masjid and told him that if he did not accompany her, she will commit suicide and therefore he went near the Masjid and from there both of them went to Sedam and from there to Chincholi and from there they went to Hyderabad, wherein they stayed for 4 to 5 days. He has further stated that inspite of advising her to return to her house, she did not return and she informed him that she is a major and her age is 18 years and thereafter both of them went to Batagera. He has denied having committed sexual intercourse on her. 31. In the cross-examination, accused has denied that the prosecutrix was aged below 18 years and by luring her, he kidnapped and committed sexual intercourse on her. 32. From the material on record, it can be gathered that, on 10.11.2013, the prosecutrix-PW.2 went out of the house and since she did not return, her parents went in search of her and coming to know that she went along with the accused, lodged a complaint to the police. During investigation, the prosecutrix as well as the accused were secured on 06.12.2013 from Batagera village. 33. PW.2 -victim girl has deposed that inspite of her resistance, the accused committed sexual intercourse on her on 14.11.2013 when they were in Batagera in the house of a relative of the accused and continued the said act till 04.12.2013. 34. PW.11, who conducted medical examination of the victim, has stated that the victim was subjected to sexual intercourse repeatedly. She has stated that there was no sign of recent sexual intercourse, but she was subjected to sexual intercourse. 35. PWs.1, 3 and 14 have deposed that PW.2 informed them that the accused has committed sexual intercourse on her. 34. PW.11, who conducted medical examination of the victim, has stated that the victim was subjected to sexual intercourse repeatedly. She has stated that there was no sign of recent sexual intercourse, but she was subjected to sexual intercourse. 35. PWs.1, 3 and 14 have deposed that PW.2 informed them that the accused has committed sexual intercourse on her. Though the accused, who is examined as DW.1 has denied the allegation that he has committed sexual intercourse on the victim, however, in view of the evidence of PW.2 -the victim coupled with the medical evidence, it can be safely held that the victim was subjected to sexual intercourse. The evidence of PW.2 that the accused has committed sexual intercourse on her cannot be disbelieved, as there is nothing elicited in her cross-examination by the defence to disbelieve it. 36. According to the prosecution, the victim was criminally intimidated and she was kidnapped by the accused and taken to different places and thereafter they stayed in the house of PW.7 at Batagera from 14.11.2013 to 06.12.2013, during which period the accused committed forcible sexual intercourse on her. 37. A careful perusal of the evidence of PW.2 does not give any indication that there was any force or threat put to her or she was criminally intimidated and taken by the accused. Admittedly, both of them stayed together for about 25 days and there was plenty of opportunity for the prosecutrix to either complain the act of the accused to others or to escape from his clutches. However, till both of them were traced on 06.12.2013, nowhere it is stated that she has made an attempt either to escape from the house where she was staying or that she informed others about the accused kidnapping or committing forcible sexual intercourse on her. It is also pertinent to see that the Trial Court having appreciated the evidence on record, acquitted the accused of the offence punishable under Section 506 of IPC. At para 32 of the judgment, the Trial Court has observed that 'as the witness has not raised hue and cry at these places though large number of public would be present in all these places, her version that she was threatened cannot be believed'. The Trial Court has come to the conclusion that the charge of criminal intimidation as against the accused is not proved by the prosecution. The Trial Court has come to the conclusion that the charge of criminal intimidation as against the accused is not proved by the prosecution. Therefore, from the evidence and material on record, it cannot be said that that the prosecutrix was either forcibly taken or that she was kidnapped and threatened by the accused. 38. According to the prosecution, prosecutrix was a minor aged about 17 years at the time of incident. The prosecution has relied on the certificate at Ex.P6 issued by the Principal-PW.5, to prove the age of the prosecutrix, wherein it is mentioned that the date of birth of the victim is 05.05.1997. If that is taken into consideration, the victim was aged about 16 years and 6 ½ months at the time of incident. If the prosecution is able to establish beyond reasonable doubt that victim was a minor at the time of incident, then the contention of the learned counsel for appellant that there was no force or inducement or that there was consent on the part of the victim for sexual intercourse etc., and therefore the accused has not committed any offence as alleged by the prosecution cannot be accepted. 39. The learned High Court Government Pleader relying on a decision in case of Bharati Jatav Vs. State of M.P., of High Court of Madhya Pradesh, passed in Criminal Appeal No.1004/2014 has contended that the prosecution has been able to establish that the prosecutrix was a minor, therefore, her consent is immaterial. 40. The Hon'ble Apex Court in Mahadeo Vs. State of Maharashtra, reported in (2013) 14 SCC 637 has observed that rules applicable for determination of the age under the Juvenile Justice Act, 2000 would be relevant to determine the age of victims in the context of sexual assault as well. Under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007, the Court may consider the following to determine the age of the victim. (i) The matriculation or equivalent certificates, if available; and in the absence whereof; (ii) The date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) The birth certificate given by a corporation or a municipality or a panchayat. In the absence of these three records, the Courts may look at the medical opinion regarding the age of the victim. 41. In the absence of these three records, the Courts may look at the medical opinion regarding the age of the victim. 41. Relying on the aforesaid decision of the Hon'ble Apex Court and the Division Bench of this Court in the case of Devappa @ Devindra Vs. State in Crl.A. No.200106/2018 and connected matters, the learned counsel for the appellant has contended that the prosecution has failed to place any of the above documents to establish that the victim was a minor at the time of incident. 42. The learned counsel for appellant has also relied on a decision of this Court reported in 2018 Cr.R. 479 (Kant.) in the case of State by Rural Police, Chitradurga Vs. Suresh. Paragraphs 28 and 33 of the said Judgment are extracted hereunder: "28. The Hon'ble Supreme Court in Sunil vs. State of Haryana, [2010 Crl. Law Journal 839] regarding determination of age of person states as follows: "29. The short question in the facts and circumstances of this case remains to be determined is whether the prosecutrix was a minor? Dr. Sadhana Verma, P.W.1 who examined the prosecutrix referred her for verification to the Dental Surgeon and the Radiologist. The failure of getting the prosecutrix examined from the Dental Surgeon or the Radiologist despite the fact that she was referred to them by Dr. Sadhana Verma. P.W.1 is a serious flaw in the prosecution version. We are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in absence of primary evidence reports of the Dental Surgeon and the Radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix. 30. xxxxx 31. xxxxx 32. xxxxx 33. Bishan, P.W.8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis of record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date." 43. Relying on the Judgment of the Hon'ble Apex Court reported in 2010 (1) KCCR 1 in the case of Sunil Vs. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date." 43. Relying on the Judgment of the Hon'ble Apex Court reported in 2010 (1) KCCR 1 in the case of Sunil Vs. State of Haryana, the learned counsel for appellant has contended that in the absence of matriculation certificate or birth certificate, the prosecution ought to have determined the age of the prosecutrix by referring her to the Dental Surgeon and Radiologist for their opinion. But, that exercise was not done which is a serious lacuna in the prosecution version, which raises suspicion on the prosecution case. 44. In Md. Ali @ Guddu Vs. State of U.P. reported in 2015 Cr.R. 421 [S.C.] relied on by the learned counsel for appellant, the Hon'ble Apex Court has observed that 'prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months, wherein it was borne out from the record that she had travelled from place to place and was ravished number of times and the only explanation given by her is that she was threatened by the accused. It is not in her testimony that she was confined to one place. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts.' Further observed that, 'the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence and it can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.' 45. In the instant case, the prosecution is heavily relying on the certificate at Ex.P6 issued by P.W.5, the Principal of the P.U. College, wherein the prosecutrix was studying at the time of incident. The said Ex.P6 is issued on a letterhead signed by the Principal, wherein it is stated that the prosecutrix was studying in the said college in II PUC and as per registration number 162/2012-13, her date of birth is 05.05.1997. 46. According to P.W.5, after verifying the register he has issued the Certificate. The said Ex.P6 is issued on a letterhead signed by the Principal, wherein it is stated that the prosecutrix was studying in the said college in II PUC and as per registration number 162/2012-13, her date of birth is 05.05.1997. 46. According to P.W.5, after verifying the register he has issued the Certificate. However, it is not forthcoming as to what was the register verified by him. The register is also not marked in evidence. It is the specific case of the prosecution that the prosecutrix was studying in II year PUC. In that event, the prosecution could have collected her SSLC Marks Card, in the absence of her Birth Certificate for determination of her age. P.W.5 in the cross-examination has stated that the Police have not seized the T.C. or original SSLC Marks Card. 47. P.W.11-doctor in the cross-examination has deposed that the age of the person can be determined subjecting the person to dental examination and radiological examination. She has stated that there is a dentist in the hospital and on that day, she was not available. Investigation Officer-P.W.16 in his cross-examination has stated that he is aware that in such cases, age of the victim could be determined by examining through a radiologist or dentist. The prosecution could have subjected the prosecutrix for dental examination or radiological examination in the absence of Birth Certificate or SSLC Marks Card. According to P.W.11, there is a dentist in the hospital. If that is so, failure to determine the age of the prosecutrix by examining her through a radiologist or dentist creates a doubt in the mind of the Court. 48. Apart from Ex.P6, the prosecution has relied on the oral testimony of P.Ws.1 to 3 and 14 to establish the age of the victim. 49. It is relevant to see that P.W.1 in his cross-examination has clearly deposed that he is not aware as to what was the document furnished at the time of admission of his daughter to the school. According to him, on an assumption he has stated that his daughter is about 17 years at the time of incident. He has stated that his wife admitted their children to the school. 50. According to him, on an assumption he has stated that his daughter is about 17 years at the time of incident. He has stated that his wife admitted their children to the school. 50. P.W.3 has also not deposed in her evidence that on what basis she has stated the age of her daughter and what were the documents furnished to the school at the time of her admission and on what basis she has deposed that the victim was aged 17 years at the time of incident in question. 51. Hence, a serious doubt arises in the mind of the Court with regard to the age of the victim as claimed by the prosecution. The prosecution has not been able to establish beyond all reasonable doubt that the victim was a minor at the time of incident. 52. There can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable, a conviction can be based. However, in the case on hand, the testimony of prosecutrix and other witnesses and the material placed on record does not inspire confidence of the Court to hold that the prosecution has established the charges leveled against the accused. 53. The trial Court has come to an erroneous conclusion placing reliance on Ex.P6 and the evidence of P.W.5 to hold that the prosecutrix was a minor as on the date of incident and the accused kidnapped and committed rape/sexual assault on her. 54. Having independently assessed the evidence of the prosecution witnesses and having carefully examined the material on record, I am of the considered view that the prosecution has failed to establish the guilt of the accused for the charged offences beyond reasonable doubt. Hence, the following: ORDER Appeal is allowed. The impugned Judgment dated 27.04.2017 passed in Special Case [POCSO] No.5/2014 by the II Addl. Sessions Judge, Kalaburagi, convicting the appellant for offences punishable under Sections 366, 376(2)(n) of IPC and Section 6 of the POCSO Act and the consequent order passed on sentence dated 04.05.2017 are hereby set aside. The appellant/accused is acquitted of the offences for which he has been convicted and sentenced by the trial Court. He shall be released forthwith, if not required in any other case. Registry shall communicate the operative portion of the Judgment to the concerned Jail Authority forthwith.