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2022 DIGILAW 432 (KAR)

Channabasappa v. State of Karnataka

2022-03-31

H.T.NARENDRA PRASAD, RAJENDRA BADAMIKAR

body2022
JUDGMENT Rajendra Badamikar, J. - Appellant/accused has filed this appeal under Section 374(2) of Cr.P.C. assailing the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge and Special Judge, Haveri in Spl.S.C. No. 17/2014 whereby the learned Special judge has convicted the appellant/accused for the offence punishable under Section 376(2)(f) of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act' for short) by imposing imprisonment for life with fine of Rs. 25,000/- with default clause and for the offence punishable under Section 12 of POCSO Act, he was imposed rigorous imprisonment for 2 years with fine of Rs. 5,000/- with default clause. 2. For the sake of convenience, parties shall be referred with the original ranks occupied by them before the trial court 3. The brief factual matrix leading to the case are as under: That the victim girl is daughter of the complainant-Manjavva and the victim is aged about 5 years and attending anganawadi at Kurdakodihalli village of Byadagi taluk. That the accused is relative of the complainant and is also residing in the same village. It is further case of the prosecution that complainant and her husband used to go to work every day for coolie or agriculture work and at that time, they used to leave their daughter i.e., victim girl in the parental house of the complainant which is situated in the same village. The house of the accused is also situated in the same vicinity of the parental house of the complainant. It is further case of the prosecution that on 27.07.2014, at 10.00 a.m. the complainant left her daughter in her parental house and went to the land for agricultural work. At about 3.00 p.m. the accused came near the said house belonging to the father of the complainant and took the victim girl inside the house. It is further alleged that, he made her to lay on the floor, removed her panty and removed his innerwear and then fell on her in an attempt to penetrate her vagina. It is also alleged that he has also bite on her chin and forehead having knowledge that she was a minor. When the victim girl cried, her grandfather rushed inside the house and on seeing him, the accused ran away from the spot by pushing the grandfather. It is also alleged that he has also bite on her chin and forehead having knowledge that she was a minor. When the victim girl cried, her grandfather rushed inside the house and on seeing him, the accused ran away from the spot by pushing the grandfather. When the complainant returned in the evening she got information about all these aspects and the victim was complaining of pain in her vagina and other parts of the body. As there was no vehicle facility, they stayed in the village on that night and on the next day morning they went to Byadagi and reported the matter to doctor who in turn reported to concerned police. Then victim girl was sent to District Hospital, Haveri and a complaint was also lodged. On the basis of the complaint, the crime came to be registered and the accused was arrested on 29.07.2014 and was also subjected to medical examination. The investigating officer has recorded the statement of the witnesses and found that there is material evidence as against the accused for having committed penetrative sexual assault on the victim girl and as such, submitted the charge sheet against the accused for the offence punishable under Sections 376(2)(f) of IPC and Sections 4 and 12 of POCSO Act. After submission of the charge sheet, as there is sufficient material against the accused, cognizance of the said offence was taken. The learned Special Judge has also secured the accused and accused was represented by defence counsel. The prosecution papers were also furnished to the accused. 4. Then, Special Judge has framed charge under Section 376(2) of IPC and Sections 4 and 12 of POCSO Act and the same was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. 5. The prosecution in order to prove the guilt of the accused has examined in all 18 witnesses and has also placed reliance on 24 documents and 6 material objects. 6. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial and he did not choose to lead any oral and documentary evidence in support of his defence. 7. The case of accused is of total denial and he did not choose to lead any oral and documentary evidence in support of his defence. 7. After having heard the arguments, the learned Special Judge found that prosecution has proved the guilt of the accused for the offence punishable under Section 376(2)(f) of IPC and under Sections 4 and 12 of POCSO Act and accordingly convicted the accused. 8. Being aggrieved by this judgment of conviction, the accused has filed this appeal. 9. We have heard the learned counsel appearing for the appellant and learned Additional SPP. We have also perused the records of the trial court. 10. Learned counsel for the appellant would contend that judgment of conviction and order of sentence is contrary to law and evidence on record. He would contend that learned Special Judge has committed grave error in convicting the accused on the interested testimony of the prosecution witnesses which are contradictory, unreliable and artificial. He would also contend that, trial court has not properly appreciated the evidence of the victim and it reveals that she is tutored witness. He would also contend that trial court has not properly assessed and scrutinized the medical evidence. He would also contend that the evidence on record disclose that prosecution has not established the guilt of the accused for the offence punishable under Section 376(2)(f) of IPC and Sections 4 and 12 of POCSO Act. Alternatively, learned counsel for the appellant would also contend that considering the age of the victim, some remission may be granted to him. 11. Per contra, learned Additional SPP would contend that victim is aged about 5 years and accused being her relative exploited the situation of the minor girl and committed penetrative sexual assault on the victim. He would contend that victim has given statement under Section 164 of Cr.P.C. and further her evidence recorded before the court is supported by the evidence of eyewitness P.W. 5 as well as the medical evidence, which is sufficient to prove the guilt of the accused. He would contend that victim has given statement under Section 164 of Cr.P.C. and further her evidence recorded before the court is supported by the evidence of eyewitness P.W. 5 as well as the medical evidence, which is sufficient to prove the guilt of the accused. He would contend that considering the inhuman act on the part of the accused, the Special Judge has imposed life imprisonment with fine which is ordered to be paid to the victim girl and considering the facts and circumstances, the judgment of conviction and order of sentence does not suffer from any perversity or infirmity so as to call for any interference by this court. As such, he prayed for dismissal of the appeal. 12. Having heard the arguments and perusing the records, now the following points would arise for our consideration: i) Whether the prosecution has proved beyond all reasonable doubt that on 27.07.2014 at 3.00 p.m. in the house of Honnappa K. Hotteppanavar situated in Kurdakodihalli village of Byadagi taluk, accused having knowledge that victim is a minor aged about 5 years committed rape and penetrative sexual assault on her and thereby committed the offences as alleged? ii) Whether the judgment of conviction and order of sentence passed by the trial court is perverse, capricious and suffers from infirmity so as to call for any interference by this court? 13. It is the specific case of the prosecution that accused has committed penetrative sexual assault on the victim girl in the house of her grandfather and accused is relative of the victim. The complainant is mother of the victim and P.W. 2-Praksh N. Kodabal and P.W. 3-Basavaraj M. Kajjari are the spot mahazar witness while P.Ws. 4 and 5 are the recovery mahazar witnesses. P.W. 5-Honnappa K. Hotteppanavar is the father of the complainant and he is an eye-witness. P.W. 6-Ningappa D. Medleri is the relative of the complainant, while P.W. 7 is the victim girl. P.W. 8-Bharamappa P. Kajjari is father of the victim and husband of the complainant, while P.W. 9-Yallavva is the mother of the complainant and wife of P.W. 5 being the grandmother of the victim. P.W. 11-Dr. Netravathi is the Medical Officer who had examined the victim and P.W. 13 is the Anganawadi worker who has given certificate Ex. P13 regarding date of birth of the victim. P.W. 15-Dr. P.W. 11-Dr. Netravathi is the Medical Officer who had examined the victim and P.W. 13 is the Anganawadi worker who has given certificate Ex. P13 regarding date of birth of the victim. P.W. 15-Dr. Chandrakant Mannapur has deposed regarding examining the accused and P.W. 18 is the Magistrate who has recorded the statement of the victim under Section 164 of Cr.P.C. as per Ex. P24. P.Ws. 16 and 17 are the investigating officers. 14. In the instant case, it is the specific assertion of the prosecution that accused has committed penetrative sexual assault on the victim girl who is aged about 5 years. Though certain cross-examination is made regarding age of the victim girl, however, it is undisputed fact that victim is a child aged about 5 years and the evidence of P.W. 13 in this regard is not seriously challenged as well as Ex. P13, which establishes that victim was aged about 5 years as on the date of the incident and the said certificate is also not challenged. Apart from that, the evidence also discloses that victim used to refer the accused as uncle. Under Section 35 of the Indian Evidence Act, 1872, entry in public record or an electronic record made during the performance of the official duty is a relevant and hence, there is no serious dispute regarding Ex. P13 and age of victim. 15. The prosecution has alleged that accused has committed penetrative sexual assault on the victim. The complainant-mother is examined as P.W. 1 and eye-witness her grandfather is examined as P.W. 5 and the victim is examined as P.W. 7. The Medical Officer who has examined the victim girl is examined as P.W. 11 and these are the material witnesses in the instant case. 16. P.W. 1 deposed that on 27.07.2014 she and her husband left the victim girl in the house of her father i.e., P.W. 5 and evening they came back to their house and had dinner and then came to the house of her parents i.e., P.W. 5 around 8.30 p.m. and noticed that victim was sleeping inside and was in dull mood. On enquiry, the victim has revealed that, in the afternoon there was penetrative sexual assault on her and the same is again confirmed by her father. On enquiry, the victim has revealed that, in the afternoon there was penetrative sexual assault on her and the same is again confirmed by her father. P.W. 1 has also deposed that she examined the victim and noticed swelling in the vagina portion and it was reddish and the victim was complaining pain. According to the complainant, the victim has disclosed that accused made her lie on the ground and removed her clothes and after he removing his clothes bite her chin, forehead and then committed penetrative sexual assault. She further deposed that, as it was night, they were not able to go to Byadagi for treatment and on the next day morning they went to Byadagi Hospital and the matter was reported to the doctor who has registered MLC and further proceedings have taken place. This witness was cross-examined by defence counsel, but her evidence was not all impeached except formal denial. She has specifically asserted even in the cross-examination that there was swelling in the vagina portion of the victim girl and she was complaining pain. A suggestion was made that victim was having some etching problem, which she denied. The evidence of this witness is consistent and nothing worthy is elicited. 17. P.W. 5-Honnappa is grandfather of the victim and father of the complainant. In his evidence, he has also deposed that victim was left in his house by complainant and she was alone in the house with him and at that time victim stated that she will have food and this witness asked her to take food. He further deposed that, meanwhile accused came there and under the guise of taking water he went inside the house and after some time, he heard the noise of crying of his granddaughter. When he rushed inside the house, he found accused lying on victim and seeing him, the accused ran away by pushing him. He has also deposed regarding he giving statement before the police in this regard. His cross-examination reveals that accused was acquainted with this witness being a distant relative. In his cross-examination he deposed that he and victim were alone in the house when the incident had occurred and accused committed the offence. He further deposed that, when his son-in-law and complainant arrived at 8.30 p.m., he brought it to their notice. His cross-examination reveals that accused was acquainted with this witness being a distant relative. In his cross-examination he deposed that he and victim were alone in the house when the incident had occurred and accused committed the offence. He further deposed that, when his son-in-law and complainant arrived at 8.30 p.m., he brought it to their notice. He has also specifically asserted that the accused was under intoxicated state of mind. Though it was not deposed by this witness in his examination-in-chief, but it was elicited from his mouth during the cross-examination by way of explanation. The fact that accused was under intoxicated state of mind was not even denied. Though this witness was cross-examined at length, but nothing worthy was elicited so as to discard his evidence. Further, no reasons are forthcoming for the complainant and this witness to falsely implicate the accused. 18. P.W. 7 is the victim and in her evidence she has narrated the incident in her own way. It is also important to note here that, her statement under Section 164 of Cr.P.C. recorded by the Magistrate was also in her own language and her statement under Section 164 of Cr.P.C. marked at Ex. P25 reads as under: 19. The language used by the child clearly discloses the penetrative sexual assault. Further, in her evidence, she deposed that her uncle-accused came and took her inside the house and removed her clothes and he too got undressed, fall on her and bit her chin. She is not able to disclose certain aspects being a child, but she discloses them by gesture. She specifically stated that she suffered pain in vagina. Her evidence is also consistent to the effect that, when she cried P.W. 5 rushed inside the house and accused got up and ran away by pushing P.W. 5. She also admitted regarding she being treated by the doctor and there was swelling and pain in her vagina. This witness was cross-examined and no doubt she has not answered certain questions regarding she being tutored and except staring at the defence counsel, which was recorded in her evidence. But her age and over all circumstances will have to be taken and her evidence is consistent that there was penetrative sexual assault on her and she denied in respect of she being giving false evidence. 20. But her age and over all circumstances will have to be taken and her evidence is consistent that there was penetrative sexual assault on her and she denied in respect of she being giving false evidence. 20. Further, the evidence of P.W. 5 discloses that victim was crying and she was shivering and definitely the minor child ought to have undergone lot of mental trauma and shock because of such an activity and putting questions on her regarding this aspect would definitely cause lot of mental stress on the victim as she would go on recollecting the trauma which she underwent because of this inhuman act. 21. The evidence of P.Ws. 1, 5 and 8 is again corroborated by the evidence of P.W. 11-Medical Officer, Government Hospital, Haveri who has treated the victim on 28.07.2014. In her evidence, she has deposed that on 28.07.2014 evening at 6.30 p.m. when she was in District Hospital, the victim girl aged about 5 years was produced by Byadagi police for medical examination who was accompanied by her mother and the victim has disclosed penetrative sexual assault on her. Her evidence discloses that her organs were not grown for sexual intercourse. However, she was physically o.k. The witness has also deposed that when she examined her private part, she noticed an abrasion on the left thigh and she was complaining pain in vagina and it was congested. She has also deposed that she noticed some swelling inside the vagina and the physical examination reveals that victim has undergone physical penetration of vagina. She has also deposed that, FSL report does not disclose seminal stains and others, but physical examination establishes that there was forcible penetration of vagina. Her evidence further discloses that there was contusion wound on the frontal region. No doubt, her evidence further discloses that hymen was intact, but there was penetrative sexual assault on her. Much cross-examination was made regarding if there is a penetration there is possibility of rapture of hymen, but witness has specifically stated that it depends on the pressure used and admittedly, the genital organs of the victim were not grown sufficiently. 22. She has also deposed regarding giving certificate as per Exs. P9 and 12. Much cross-examination was made regarding if there is a penetration there is possibility of rapture of hymen, but witness has specifically stated that it depends on the pressure used and admittedly, the genital organs of the victim were not grown sufficiently. 22. She has also deposed regarding giving certificate as per Exs. P9 and 12. Much cross-examination is made regarding penetration and in such an event, the victim being minor child unable to sustain such an assault, but that itself is not a ground to discard medical evidence. 23. Learned counsel for the appellant has contended that even if the entire evidence is taken into consideration, it will at most disclose that an attempt of rape, but not a rape and as such, he contended that offence under Sections 4 of POCSO Act and Section 376 of IPC are not established. However, the said arguments holds no water as Section 375 defines rape and this amendment was brought in the year 2013 w.e.f. 03.02.2013 and it reads as under: "[375. Rape.-- A man is said to commit "rape" if he-- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-- First.-- Against her will. Secondly.-- Without her consent. Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Secondly.-- Without her consent. Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.-- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-- With or without her consent, when she is under eighteen years of age. Seventhly.-- When she is unable to communicate consent. Explanation 1.-- For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.-- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.-- A medical procedure or intervention shall not constitute rape. Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape." 24. The explanation (1) of Section 375 discloses that vagina shall also include labia majora. The evidence of P.W. 11 and her report Ex. P9 clearly disclose that there is abrasion over labia majora of the victim which establish that there was a penetration and insertion. Hence, the act of the accused falls under the definition of rape as defined under Section 375 as the labia majora is also part of vagina and there is penetration and injuries to this part. As such, the said arguments advanced by the learned counsel for the appellant holds no water. The evidence of P.W. 11 clearly establish that there were injuries in vagina of the victim and she was totally discomfort and was complaining pain because of forcible penetration of vagina. Ex. P9 is the medical report and Ex. As such, the said arguments advanced by the learned counsel for the appellant holds no water. The evidence of P.W. 11 clearly establish that there were injuries in vagina of the victim and she was totally discomfort and was complaining pain because of forcible penetration of vagina. Ex. P9 is the medical report and Ex. P12 is the final report issued by this witness and though there is no discharge of semen, it depends on various aspects and evidence clearly discloses that when accused attempted for penetration, the victim cried and immediately P.W. 5 rushed to the spot and as such, the accused ran away. The evidence of P.W. 11-Medical Officer is completely corroborative in terms the evidence of P.Ws. 1, 5 and 7. 25. Much cross-examination is made regarding victim suffering some skin problem of etching at vagina but the said suggestion came to be denied by the doctor. No reasons are forthcoming for discarding the medical evidence and it is hard to accept the contention of the accused that a false case has been registered and such possibility is remote as it is not expected at the risk of reputation of the family of the complainant and future of the victim. 26. P.W. 18 has recorded statement of the victim under Section 164 of Cr.P.C. which is marked at Ex. P24 also corroborates the case of the prosecution. On marshalling the evidence on record especially of P.Ws. 1, 5, 7 and 11, it is evident that accused did committed penetrative sexual assault on the victim by committing rape and it falls under the definition of rape. 27. The trial court has appreciated oral and documentary evidence in total and has rightly come to the conclusion that there is a penetrative sexual assault on the victim girl and it is an inhuman act. As such, the learned Special Judge has imposed sentence of life with fine to the accused which is now being challenged. 28. The evidence does establish that accused did committed said offence as alleged and the prosecution has proved the guilt of the accused beyond all reasonable doubt. Under these circumstances, the judgment of conviction and order of sentence passed by the trial court does not suffer from any perversity or infirmity so as to call for interference by this court. 29. The evidence does establish that accused did committed said offence as alleged and the prosecution has proved the guilt of the accused beyond all reasonable doubt. Under these circumstances, the judgment of conviction and order of sentence passed by the trial court does not suffer from any perversity or infirmity so as to call for interference by this court. 29. Insofar as arguments of the learned counsel for the appellant regarding remission of the sentence, no special reasons are forthcoming and the conduct of the accused is required to be considered as he targeted a tender aged child to satisfy his lust and it is likely to damage the reputation of the child in future also. Such offences cannot be taken in a lighter way and the age of the accused itself is not a criteria and looking to these facts and circumstances, the sentence imposed by the learned Special Judge is reasonable one and does not call for any interference. Under these circumstances, looking to the facts and circumstances, we answer the point No. 1 under consideration in the affirmative and point No. 2 in the negative. The appeal being devoid of any merits needs to be dismissed. Accordingly, we proceed to pass the following: ORDER The criminal appeal is dismissed by confirming the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge and Special Judge, Haveri in Spl. S.C. No. 17/2014.