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2025 DIGILAW 445 (KAR)

Irfan, S/o Abdul Latheef v. State of Karnataka

2025-06-18

M.G.UMA

body2025
JUDGMENT : M.G. UMA, J. The accused in Special Case No.117/2014 on the file of the learned Additional District and Sessions Judge, FTSC-1 (POCSO) D.K., Mangaluru, is impugning the Judgment of conviction and order of sentence dated 29.11.2021 convicting him for the offence punishable under Sections 366A , 342 and 506 of IPC and Section 4 of POCSO Act read with Section 376 of IPC and sentencing to undergo (i) rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- for the offence punishable under Section 366A of IPC , (ii) rigorous imprisonment for a period of five months and to pay fine of Rs.1,000/- for the offence punishable under Section 342 of IPC , (iii) rigorous imprisonment for a period of one year and to pay fine of Rs.2,000/- for the offence punishable under Section 506 of IPC , (iv) rigorous imprisonment for a period of seven years and also pay fine amount of Rs.10,000/- for the offence punishable under Section 4 of POCSO Act read with Section 376 of IPC with default sentences. 2. Brief facts of the case as made out by the prosecution is that, the victim -PW5 was a minor aged about 17 years. The accused kidnapped her with an intention to commit sexual assault. He had taken her to Chikkamagaluru, kept her in S.K.Regency Hotel and wrongfully confined her from 04.08.2014 till 06.08.2014 in room No.101. During that period, he committed penetrative sexual assault forcibly by giving life threat to cause her death. He also forcefully snatched the chain worn by the victim, and thereby committed the offences as stated above. 3. PW-1, the father of the victim girl lodged the first information as per Ex.P-1 alleging kidnap of the minor girl by the accused and others. On the basis of same, FIR came to be registered. On 07.08.2014 the victim was found in the company of the accused in S.K.Regency Hotel in room No.101. The victim was rescued and accused was apprehended. The statements of the victim were recorded by the Child Welfare Committee (for short `CWC') and also by the learned Magistrate under Section 164 of Cr.P.C . After completing investigation, the charge sheet came to be filed. The accused appeared before the Trial Court, pleaded not guilty and he claimed to be tried. 4. The statements of the victim were recorded by the Child Welfare Committee (for short `CWC') and also by the learned Magistrate under Section 164 of Cr.P.C . After completing investigation, the charge sheet came to be filed. The accused appeared before the Trial Court, pleaded not guilty and he claimed to be tried. 4. Prosecution examined PWs-1 to PW-15 and got marked Ex.P1 to Ex.P22(a) and identified MOs 1 to 12 in support of its contentions. The accused has denied all the incriminating materials on record in his statement under Section 313 of Cr.P.C ., but has not led any evidence in support of his defence. The trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt, for the offences punishable under Sections 366A , 342 and 506 of IPC and under Section 4 of the POCSO Act read with Section 376 of IPC , while acquitting him for the offences punishable under Section 392 of I.P.C. Being aggrieved by the same, the appellant is before this Court. 5. Heard Sri.B.S.Sachin, learned counsel for the appellant and Smt.Rashmi Jadhav, learned Additional SPP for the respondent-State. Perused the materials including the trial Court records. 6. Learned counsel for the appellant contended that almost all the witnesses including the victim and the informant have turned hostile and they have not supported the case of the prosecution. Under such circumstances, there are absolutely no materials to convict the accused for the above said offences. None of the independent witnesses have been examined in support of the contention of the prosecution that the accused had either kidnapped the victim girl or had abducted her to Chikkamagaluru, kept her in the hotel room, and committed sexual assault. In the absence of any material, the Trial Court committed an error in convicting the accused. 7. Learned counsel contended that Section 366A of IPC is not at all attracted to the facts of the case. Even then, the accused was convicted without any basis. The statement of the victim girl relied on by the prosecution were under threat by the police. Hence, the Trial Court ought not to have placed reliance on the same. 8. 7. Learned counsel contended that Section 366A of IPC is not at all attracted to the facts of the case. Even then, the accused was convicted without any basis. The statement of the victim girl relied on by the prosecution were under threat by the police. Hence, the Trial Court ought not to have placed reliance on the same. 8. It is submitted that the CCTV camera in the hotel was never recovered by the police to show that the accused had taken the victim girl to the said hotel at Chikkamagaluru. When the prosecution is not successful in proving the contention regarding commission of offence by the accused, the provisions under Section 29 of the POCSO Act cannot be invoked to convict the accused. Thus, it is his contention that the prosecution has miserably failed to prove the guilt of the accused. Under such circumstances the accused was entitled for acquittal. But the Trial Court committed an error and without any basis convicted the accused. Hence, he prays for allowing the appeal. 9. Per contra, learned Addl. SPP for the respondent-State submits that the father of the victim girl lodged the first information as per Ex.P1. He stated that it is the accused who took the victim girl with the help of others. He was examined as PW-1. PW-2 and PW-3 who are the eyewitnesses. PW-4 is the mother of the victim girl and PW-5 is the victim herself. PW-6 is the witness to spot mahazar. But unfortunately, all these witnesses have turned hostile to the prosecution case without reason. PW-7 is the Investigating Officer who proceeded to Chikkamagaluru and visited S.K.Regency Hotel, where the accused had confined the victim. He has drawn the spot mahazar as per Ex.P-12 and seized the ledger book which is as per Ex.P17. At page No.97 it refers to the name of accused as the occupant of room in question. Even his phone number and address is mentioned therein and there is absolutely no cross examination to PW-7. 10. PW-8 is the social worker who took the victim girl to CWC where her statement as per Ex.P-18 was recorded, which was immediately after her rescue. Ex.P11 is the statement of the victim girl under Section 164 of Cr.P.C . Ex.P11 and Ex.P18 corroborates with one another. 11. Learned Addl. SPP submitted that PW10 is the doctor who examined the victim and issued Ex.P13. Ex.P11 is the statement of the victim girl under Section 164 of Cr.P.C . Ex.P11 and Ex.P18 corroborates with one another. 11. Learned Addl. SPP submitted that PW10 is the doctor who examined the victim and issued Ex.P13. She clearly states that hymen was ruptured and there is sexual assault on the victim. There is absolutely no cross examination on this point as well. PW9 is the Principal of the school who issued the study certificate as per Ex.P14. As per this document her date of birth is 22.12.1997 as on the date of commission of offence and she was only 17 years of age. The Investigation Officer and other official witnesses were examined as PWs11 to PW15 have supported the case of the prosecution. Under such circumstances, the Trial Court has rightly convicted the accused and accordingly, prays for dismissal of the appeal. 12. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the appellant has made out any grounds to interfere with the impugned Judgment of conviction and order of sentence passed by the Trial Court?" 13. My answer to the above point is `partly in the affirmative' for the following reasons: REASONS 14. It is the specific contention of the prosecution that the victim was minor as on the date of incident from 04.08.2014 to 06.08.2014. To prove that contention, the prosecution examined PW9 who issued study certificate as per Ex.P14. As per this document, date of birth of victim is 22.12.1997. Except denial of statement of this witness, nothing has been elicited during the cross examination to disbelieve his version or to ignore Ex.P14. 15. Initially, PW1 the father of the victim lodged the first information as per Ex.P1 alleging kidnapping of minor girl. FIR was registered against the accused and others. It was spontaneous act of the father of the victim and on the basis of same, the criminal law was set into motion. However, he has not supported the case of the prosecution for the reasons best known to him. PW2 and PW3 are the eye witnesses who have given statement regarding kidnapping of the victim girl by the accused. They have also not supported the case of the prosecution. PW4 who is the mother of the victim also has not supported the case of the prosecution. PW2 and PW3 are the eye witnesses who have given statement regarding kidnapping of the victim girl by the accused. They have also not supported the case of the prosecution. PW4 who is the mother of the victim also has not supported the case of the prosecution. Unfortunately, the victim girl has denied the whole incident. She has gone to the extent of saying that she does not identify the accused. She has denied her mobile number. 16. It is relevant to note that, during the cross examination, she admitted that she has given statement as per Ex.P11. There is absolutely no explanation by the victim as to why she has given statement before the learned Magistrate as per Ex.P11, when no such incident had taken place. Victim admits that she is already married to somebody else and is having two children. Therefore, she compromised with the accused. Thus, true reason has come out from the mouth of the victim as to why the parents, eye witnesses and victim herself have not supported the case of the prosecution. Merely because PW1 to PW6 have not supported the case of the prosecution for the reason that the victim is already married to someone else, and is having children, the materials on record and the evidence of other witnesses cannot be ignored. 17. PW-7 -Investigating Officer had gone to Chikkamagaluru, visited S.K.Regency hotel and found the victim girl in the company of accused in room No.101. He states that he has drawn mahazar as per Ex.P8 and also seized the ledger maintained in the hotel which is as per Ex.P17. He points at Ex.P17, where there is reference to name, address and phone number of the accused as he was the occupant of room No.101. There is absolutely no cross examination to this witness to disbelieve his version. Nothing is suggested to the witness regarding availability of CCTV cameras in the hotel. 18. Other material witness is PW8 who has taken the victim girl to CWC, where her statement as per Ex.P18 was recorded on 08.08.2014 i.e., immediately after her rescue. Ex.P11 was recorded on 25.08.2014 by the learned Magistrate. There are no reasons to disbelieve these statements of the victim girl. 19. PW10 doctor who examined the victim, had issued Ex.P13. This document also supports the case of the prosecution with regard to commission of sexual assault. Ex.P11 was recorded on 25.08.2014 by the learned Magistrate. There are no reasons to disbelieve these statements of the victim girl. 19. PW10 doctor who examined the victim, had issued Ex.P13. This document also supports the case of the prosecution with regard to commission of sexual assault. Strangely there is not even a denial regarding the contents of Ex.P13 during the cross examination. 20. From the materials on record, I am satisfied that the victim, who was subjected to sexual assault by the accused after kidnapping her has not supported the prosecution case since she is already married and having two children. Simply because the victim has not supported the case of the prosecution as she is compelled to, due to the circumstances referred to above, it would not enure to the benefit of accused to seek acquittal. There are sufficient material available on record to prove the guilt of the accused beyond doubt. 21. In view of the above, I am of the opinion that the accused had kidnapped the minor girl against her wishes, taken her and illegally detained her in room No.101 of S.K.Regency Hotel at Chikkamagaluru and also committed sexual assault. Thus, he committed offences punishable under Sections 363 , 342 and 506 of IPC and also Section 4 of the POCSO Act read with Section 376 of IPC , and is liable for conviction. I have gone through the impugned Judgment of conviction, and order of sentence passed by the Trial Court. 22. The Trial Court has taken into consideration all the oral and documentary evidence available on record, and held that the prosecution is successful in proving the guilt of accused beyond reasonable doubt. However, the Trial Court committed an error in concluding that the accused has committed the offence punishable under Section 366A instead of Section 363 of IPC . Therefore to that extent Judgment of conviction and order of sentence calls for interference by this Court. The Judgment of conviction and order of sentence for other offences stands affirmed except the offence under Section 366A of IPC . In view of the above I answer the above point partly in the affirmative and proceed to pass the following: ORDER (i) Appeal is allowed in part. The Judgment of conviction and order of sentence for other offences stands affirmed except the offence under Section 366A of IPC . In view of the above I answer the above point partly in the affirmative and proceed to pass the following: ORDER (i) Appeal is allowed in part. (ii) The Judgment of conviction and order of sentence dated 29.11.2021 passed in Spl.C.No.117/2014 by the learned Additional District and Sessions Judge, FTSC-1 (POCSO) D.K., Mangaluru, for the offences punishable under Sections 342 and 506 of IPC and Section 4 of POCSO Act read with Section 376 of IPC is hereby confirmed. (iii) The Judgment of conviction and order of sentence for the offence punishable under Section 366A is set aside. Instead, the accused is convicted for the offence punishable under Section 363 of IPC and he is sentenced to undergo simple imprisonment for a period of three years and pay fine of Rs.5,000/-. In default to pay fine, he shall undergo simple imprisonment for a period of six months. Registry to send back the Trial Court records along with copy of the Judgment for information, and for necessary action to issue conviction warrant, if the same is not already issued.