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2025 DIGILAW 692 (KAR)

Anil S/o Bhyrappa Khairav v. State of Karnataka

2025-07-01

V.SRISHANANDA

body2025
JUDGMENT : V. SRISHANANDA, J. 1. Heard Sri Shivanand V. Pattanshetti, learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the State. 2. Respondent No.2 is served and unrepresented. 3. Appellant is accused who suffered an order of conviction in Spl. Case (POCSO) No.15/2017 dated 17.04.2021 on the file of the Addl. Sessions Judge, FTSC-I(POCSO), Vijayapura, and sentenced as under: (i) The accused is hereby sentenced to undergo Simple Imprisonment for a period of three years together with Fine of Rs.5000 [Indian National Rupees of Five Thousand only] for offense punishable under Section 344 of Indian Penal Code . (ii) Further the accused is hereby sentenced to undergo rigorous Imprisonment for a period of Ten years, together with fine of sum of Rs.5,000/- [Indian National Rupees of Five Thousand only]on this Count for the offence committed under Section 366-A of Indian Penal. (iii) Further the accused is hereby sentenced to undergo rigorous Imprisonment for a period of ten years, together with fine of sum of Rs.10,000/= [Indian National Rupees of Ten Thousand only] on this Count for the offence punishable Under Section 376 [2] (n) of Indian Penal Code . (iv) Further the accused is hereby sentenced to undergo rigorous Imprisonment for a period of Twenty years, together with fine of sum of Rs.25,000/= [Indian National Rupees of Twenty Five Thousand only] on this Count for the offence punishable Under Section 6 of Protection of Children from Sexual Offences Act .” 4. Facts of the case in brief which are utmost necessary for disposal of the present appeal are as under: Factual aspects from the charge sheet placed before the learned Special Judge reveals that on 01.10.2016, 2 nd respondent lodged a typed complaint as per Ex.P.3 at 20.00 hours informing the jurisdictional police that his daughter (hereinafter referred to as ‘victim girl’) was studying at Basavanthraya College, Honvad in second year Pre University. Accused was stalking the victim girl and made several attempts to have conversation with her. Over a small period of time, accused and victim girl were in talking terms which was noticed by the complainant and he had warned the accused and told him to discontinue the friendship. But, it fell on deaf ears of the accused. 5. Accused was stalking the victim girl and made several attempts to have conversation with her. Over a small period of time, accused and victim girl were in talking terms which was noticed by the complainant and he had warned the accused and told him to discontinue the friendship. But, it fell on deaf ears of the accused. 5. When the matter stood thus, on 30.09.2016 at about 2.00 am, the victim girl went out of the house for attending the nature call in the outskirts of Harijan Keri. Though mother of the victim girl had accompanied her, she was made to stand little away and, in the guise of attending to the nature call, victim girl disappeared in the darkness. 6. Accused, as per the pre-plan was standing in that place lured the victim girl to accompany him and she did not return. Alarm raised by the mother after waiting for the victim girl for some time went in vein. Left with no alternative, mother of the victim girl rushed to the house and informed the incident to family members. All the members of the house searched for the victim girl in the vicinity from where she disappeared. But victim girl and accused were not traced. Therefore, the incident was reported to the police and FIR came to be lodged which was registered in Crime No.158/2016 of the offence punishable under Section 363 of the Indian Penal Code . 7. During the course of investigation, victim girl was traced in a shed which was in the agricultural land belonging to one Manjunath Kudagi on 12.10.2016. Thereafter accused was arrested on 13.10.2016. 8. On enquiry with victim girl, forcible sexual intercourse that accused had with victim girl came to light and based on her statement provisions of the Protection of Children from Sexual Offences Act were invoked and ultimately charge sheet came to be filed. 9. Presence of the accused was secured before the Court and after compliance of Section 207 of the Code of Criminal Procedure, charges were framed. Accused pleaded not guilty and therefore, trial was held. 10. In order to bring home the guilt of the accused, prosecution, in all, examined 18 witnesses as P.Ws.1 to 18 and placed on record 22 documents which were exhibited and marked as Exs.P.1 to 22 besides marking 04 material objects. 11. Accused pleaded not guilty and therefore, trial was held. 10. In order to bring home the guilt of the accused, prosecution, in all, examined 18 witnesses as P.Ws.1 to 18 and placed on record 22 documents which were exhibited and marked as Exs.P.1 to 22 besides marking 04 material objects. 11. Among the prosecution witnesses, P.W.4 is the victim who supported the case of the prosecution in toto. 12. P.W.8 is the doctor who examined the victim girl and gave the medical report and final opinion. 13. Parents of the victim girl, investigation agency have all supported the case of the prosecution. 14. Among the material documents, photographs of P.W.1 provided at the time of lodging the FIR, spot mahazar, seizure mahazar, school certificate of P.W.4(victim girl) to establish her date of birth are the important documents which would corroborate the case of the prosecution. 15. After conclusion of recording of evidence, learned Trial Judge recorded the statement of the accused as is contemplated under Section 313 of the Code of Criminal Procedure wherein accused has denied all the incriminatory material found against him. But he failed to offer any explanation nor furnish any written statement. Accused also did not chose to place any defence evidence on record. 16. Thereafter, learned Trial Judge heard the arguments of the parties in detail and by the impugned judgment convicted the accused and sentenced him as referred to supra. 17. Being aggrieved by the same, accused is before this Court on the following grounds: “(1) That, the judgment of conviction and order of sentence passed by the learned judge is contrary to the facts of the case, evidence on record & against the settled principles of law. (2) That, PW-2 is the father of the victim girl and hearsay witness, in his complaint not at all stated with regard to date of birth and year and in his evidence also not at all stated with regard to date of birth and year and even failed to collect the date of birth certificate from the Tahasildar office and from the Basavantraya PUC College, however the victim girl was studying, so, prosecution is utterly failed to prove the correct age of victim girl as on the date of alleged incident. Hence, the judgment of conviction and order of sentence is passed by the trial court is illegal and against the settled principles of law and same is liable to be set aside. (3) That, PW-4 is the victim girl in her Sec. 164 of Cr.P.?., statement not at stated with regard to date of birth and year and in her said statement categorically stated that, accused has not at all committed any alleged offence and even in her evidence on oath not at all stated with regard to date of birth and year. So, trial court ought to have extended the benefit of doubt and acquitted him. (4) That, PW-2 in his complaint name of the accused mentioned as Anil Chavan and same also admitted in his evidence and PW-4 in her evidence stated only the name as Anil. So, it creates a doubt regard to fact that, the false implication of the accused cannot be ruled out. (5) That, PW-2 & 4 and other witnesses i.e. PW-17 & 18 categorically stated that, she was studying PUC in the Basavantraya College and there is no whisper with regard to study at Urdu High School Honvad. So, prosecution deliberately taken fake certificate from the Urdu School to prove the alleged date of birth. Hence, the trial court fail to appreciate the evidence on record with regard to date of birth of the victim and wrongly convicted the appellant. (6) That, PW-10 is the Head Master of the Urdu High School in his evidence stated that, police not at all given written requisition to provide the date of birth extract and said witness not at all produce the registered book/Transfer Certificate with regard to proof of age and only on the strength of his certificate Ex.P-14 was marked and even in his Sec.161 of Cr.P.C. statement not at all stated victim has studied in Urdu High School. So, trial Court ought to have extended the benefit of doubt and acquitted the appellant. (7) That, PW-8 & 9 are the Doctors who examined the victim and accused respectively and they categorically stated that, no seminal stain where present and there are no sign of intercourse. So, trial court ought to have extended the benefit of doubt and acquitted the appellant. (7) That, PW-8 & 9 are the Doctors who examined the victim and accused respectively and they categorically stated that, no seminal stain where present and there are no sign of intercourse. So, trial court ought to have extended the benefit of doubt and acquitted the appellant. (8) That, PW-17 is the PSI who registered the case and he is stated that, before registration of the case under POCSO Act not at made any effort to ascertain the correct age of the victim girl and even PW-18 is the I.O. who stated that in Sec.161 statement of PW-10 there is no whisper with regard to date of birth and even recording the Sec.164 statement he fail to produce the date of birth certificate and further PW-18 stated that and even in Sec.161 statement of PW-4 (victim) not at all mentioned the date of birth of the victim girl. So, looking into the case of the prosecution in all angle, the date of birth of victim is not at all proved in accordance with law. Hence, the judgment of conviction and order of sentence is passed by the trial court is illegal and against the settled principles of law and same is liable to be set aside. (9) That, the evidence of the learned Magistrate who recorded the Sec. 164 statement of the victim girl not been examined by the prosecution deliberately, so, trial court ought to have extended the doubt and acquitted the appellant. (10) That, as per prosecution appellant has committed the alleged offence, but trial court wrongly framed the charge under 366-A of IPC and wrongly convicted the appellant under said section. (11) That, by going through the entire evidence of prosecution on record, the evidence of the complainant and other witnesses is contradictory and not corroborative with each other and further it has been admitted in the cross- examination that all the witnesses are relatives to each other and interested witnesses and no other independent witnesses examined by the prosecution. Therefore, their evidence is not relevant to prove guilt against the appellant. (12) That, in fact and circumstances of the case appellant has rebutted the presumption as provided U/s 29 of the POCSO Act. Therefore, their evidence is not relevant to prove guilt against the appellant. (12) That, in fact and circumstances of the case appellant has rebutted the presumption as provided U/s 29 of the POCSO Act. (13) That, looking into the case of the prosecution and evidence on record absolutely there are no material convict the appellant U/s 344, 366-A, 376(2)(n) of IPC and U/s 6 of the POCSO Act, 2012. (14) That, trial court convicted the appellant only on the say of interested and relative witnesses. So, trial court while appreciating their evidence ought to have taken great care to evaluate their evidence and acquitted the appellant. (15) That, the Learned Sessions Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner. (16) That, trial court not properly put the incriminating circumstances to the appellant while recording 313 statements. (17) That, it is respectfully submitted that, the learned Sessions Judge has not at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal and incorrect. The same has resulted in miscarriage of justice to the appellant.” 18. Sri Shivanand V. Pattanashetti, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum contended with vehemence that non offering resistance by the victim girl especially when she had accompanied her mother on the day of the incident clearly depicts that it is love affair between P.W.4 and appellant which ultimately resulted in appellant lending a helping hand for the victim girl to accompany him and to marry each other. 19. He further contended that it is not the case of the appellant eloping the victim girl, but it is the case of victim girl eloping the appellant. Therefore, conviction of the appellant for the offence punishable under Section 363 of the Indian Penal Code is per se not sustainable in view of authoritative principles of law enunciated by the Hon’ble Apex Court in the case of S. Varadarajan vs. State of Madras, 1964 SCC Online SC 36 . 20. Learned counsel for the appellant would further contend that since it is the consensual act of the appellant with victim girl, no ingredients of the offence under the provisions of the Protection of Children from Sexual Offences Act stands established. 20. Learned counsel for the appellant would further contend that since it is the consensual act of the appellant with victim girl, no ingredients of the offence under the provisions of the Protection of Children from Sexual Offences Act stands established. Therefore, conviction of the appellant under the provisions of Section 6 of the Protection of Children from Sexual Offences Act is impermissible and sought to allow the appeal. 21. Alternatively, he would contend that in the event this Court upholding the Order of conviction, minimum imprisonment needs to be imposed, having regard to the fact that the incident is prior to the amendment to the Protection of Children from Sexual Offences Act and therefore, sought to allow the appeal to that extent. 22. Per contra, Sri Jamadar Shahabuddin, learned High Court Government Pleader supports the impugned judgment. 23. He would contend that the material on record would clearly depict that victim girl is a minor as on the date of the incident. There is no serious dispute as to school certificate marked at Ex.P.14 marked through P.W.10. Therefore, the argument putforth on behalf of the appellant that the act was consensual cannot be countenanced in law. 24. He also invited attention of this Court to the oral testimony of victim girl-P.W.4 coupled with statement said to have been given by P.W.4 before the jurisdictional Magistrate under Section 164 of the Code of Criminal Procedure which is marked at Ex.P.8 to contend that soon after the victim girl was traced and statement was recorded before the Investigation Officer, the victim girl has been taken not only to medical examination but also her statement was recorded by the Investigation Officer before the jurisdictional Magistrate which is in conformity with her oral testimony which clearly establishes all the ingredients to attract not only an offence punishable under Section 363 of the Indian Penal Code , but also for the offence under the provisions of Protection of Children from Sexual Offences Act . 25. Insofar as alternative submission is concerned, learned High Court Government Pleader would contend that there is minimum punishment prescribed under the Protection of Children from Sexual Offences Act for the Offence punishable under Section 6 of the said Act as 10 years. 25. Insofar as alternative submission is concerned, learned High Court Government Pleader would contend that there is minimum punishment prescribed under the Protection of Children from Sexual Offences Act for the Offence punishable under Section 6 of the said Act as 10 years. The discretion has been used by the learned Trial Judge to grant the punishment for 20 years and therefore, no lenience can be shown to the appellant and sought for dismissal of the appeal in toto. 26. Having heard the learned counsel for the parties, this Court perused the material on record, meticulously. 27. On such perusal of the material on record, the following points would arise for consideration. (i) Whether the material evidence placed on record by the prosecution is sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 363 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act ? (ii) Whether the impugned judgment suffers from legal infirmity and perversity and thus calls for interference by this Court? (iii) Whether the sentence is excessive? (iv) What Order? 28. REGARDING POINT Nos.1 AND 2: In the case on hand, pivotal evidence placed on record on behalf of the prosecution is the oral testimony of P.W.4 who is the victim girl. The complaint averments and the testimony of the victim girl corroborate each other. 29. In the examination-in-chief itself, the victim girl has stated that when she had been to attend the nature call, accused who had known about she attending the nature call at that place came there and under the knife point he had threatened her to accompany him. 30. It is the specific case that accused threatened her that if she raises alarm, he would not only kill her, but also her mother with a knife. When this altercation took place mother of the victim gagged questioned as to who is it. At that juncture, accused gathered the mouth of the victim girl and then eloped her in cruiser vehicle. 31. In the cross-examination of the victim girl, she has stated that she did not raise any alarm when she was forcibly abducted in the cruiser vehicle. Further, she admits that she does not know the contents of the complaint given by her parents. 32. 31. In the cross-examination of the victim girl, she has stated that she did not raise any alarm when she was forcibly abducted in the cruiser vehicle. Further, she admits that she does not know the contents of the complaint given by her parents. 32. She has specifically answered that accused kept her in a shed which was situated in the agricultural land of Manjunath Kudagi. She also answered that when accused was pestering her with an intention of love affair, no complaint was lodged either by herself or her parents. 33. She admits that while recording her statement before the Magistrate, she has not stated about the physical relationship, but she has answered that accused had threatened her and therefore, she did not reveal the forcible sexual intercourse accused had with her. 34. She also admits that since the accused had threatened her and lured her, she has answered before the Magistrate that she is interested in marrying the accused and therefore, she has requested not to punish him. 35. These answers which are elicited in the cross-examination of victim girl by accused would be sufficient enough to establish that there was sexual intercourse with the victim girl by the accused. 36. Admittedly, as on the date of the incident as per Ex.P.14, the date of birth of the victim girl in 08.07.1999. Therefore, as on the date of the incident, victim girl was under the age of 18 years. 37. Definition of the word ‘child’ as per Protection of Children from Sexual Offences Act under Section 2 reads as under: 2. Definitions.—(1) In this Act, unless the context otherwise requires — (a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) xxx xxx xxx xxx (d) “child” means any person below the age of eighteen years; 38. Admittedly, since the victim girl was below the age of 18 years, she has to be treated as a child. 39. ‘Whether a consent given by the child for the forcible sexual intercourse could be treated as legal consent or not’ was subject matter of discussion before the Hon’ble Apex Court in the case of Independent Thought vs. Union of India and another, (2017) 10 SCC 800 . The Hon’ble Apex Court after considering the relevant aspects of the matter, ruled that a consent given by a minor is not a ‘consent’ in the eye of law. 40. The Hon’ble Apex Court after considering the relevant aspects of the matter, ruled that a consent given by a minor is not a ‘consent’ in the eye of law. 40. Again, in the case of In Re: Right to Privacy of Adolescents, 2024 SCC Online SC 2055 the Hon’ble Apex Court did consider said aspect of the matter and ruled that the consent of a minor cannot be consent in the eye of law. 41. In the light of the above settled principles of law, the defence that has been putforward on behalf of the appellant that ‘it was consensual act’ cannot be countenanced in law. 42. Not only the testimony of the victim girl is relied upon by the learned Special Judge while recording an order of conviction for the offence punishable under Section 363 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act , but also it has taken note of the medical evidence and such other corroborative evidence and, absence of any explanation offered by the accused, so also not discharging the burden as contemplated under Sections 29 and 30 of the Protection of Children from Sexual Offences Act in rebutting the presumption. 43. On re-appreciation of the aforesaid aspects, this Court is of the considered opinion that, conviction of the appellant for the aforesaid offences needs no interference. 44. Further, since only one accused is involved in the offence, Section 366A of the Indian Penal Code would not get attracted. For ready reference, Section 366A of the Indian Penal Code is culled out hereunder: “366A- Procuration of Minor girl: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” 45. On careful reading of the above provision, if a person is to be convicted for the offence under Section 366A of the Indian Penal Code , necessary ingredients to be established by the prosecution are as under: (i) that a minor girl below the age of 18 years is induced by the accused; (ii) that she is induced to go from any place to do any act, and (iii) that she is so induced with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. It may so happen that a girl who had stayed from the path of virtue when she was in the custody of her guardian and had with a view to carry on her affair accompanied her seducer or another person. Such a case may certainly fall within the terms of section 366 or section 366-A whichever applies. But where a woman follows the profession of a prostitute that is, she is accustomed to offer herself promiscuously for money to “customers” and in following that profession she is encouraged or assisted by someone, no offence under section 366-A is committed by such person, for it cannot be said that the person who assists a girl accustomed to indulge in promiscuous intercourse for money in carrying on her profession acts with intent or knowledge that she will be forced or seduced to illicit intercourse.” 46. In the case on hand, it is the appellant who eloped the victim girl and had forcible sexual intercourse with her. Therefore, necessary ingredients that he has kidnapped the victim girl who is a minor with an intention that she may be or knowing that she will be forced or seduced to intercourse with another person, is absent. 47. The word ‘seduced’ is used in the ordinary sense of enticing or tempting irrespective of the fact that whether minor girl has been previously compelled or has submitted to illicit intercourse. 48. The verb ‘seduce’ is used in two senses. Firstly, in the ordinary and narrow sense as inducing a woman to stray from the path of virtue for the first time. Secondly, in the wider sense of inducing a woman to submit to illicit intercourse at any time or on any occasion. 49. 48. The verb ‘seduce’ is used in two senses. Firstly, in the ordinary and narrow sense as inducing a woman to stray from the path of virtue for the first time. Secondly, in the wider sense of inducing a woman to submit to illicit intercourse at any time or on any occasion. 49. Merely accompanying a woman or taking her out from her guardians with an intention to ply her to the profession of a prostitute, would not be sufficient enough to conclude the offence under Section 366A of the Indian Penal Code . 50. In the case on hand, since the only one accused is charge sheeted and complaint averments and other material evidence would not make out a case that the victim girl was enticed to accompany the appellant with an intention to seduce her to illicit intercourse with another person being absent, conviction of the appellant for the offence punishable under Section 366A of the Indian Penal Code needs to be set-aside. 51. But, the ingredients available on record would be sufficient enough to convict the accused for the offence punishable under Section 363 of the Indian Penal Code . 52. As such, impugned judgment to that extent is defective. Thus, accused is punishable under Section 363 of the Indian Penal Code . 53. Accordingly, point Nos.1 and 2 are answered partly in the affirmative. 54. REGARDING POINT No.3: Prior to amendment to the Protection of Children from Sexual Offences Act , the punishment for the offence under Section 5 of the said Act which is under Section 6 , did not contemplate minimum punishment of 20 years. What was contemplated is 10 years minimum imprisonment which may extend to imprisonment for life. 55. In order to appreciate the same, it is necessary to cull out Section 6 of the Protection of Children from Sexual Offences Act prior to amendment which reads as under: “6. Punishment for aggravated penetrative sexual assault- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.” 56. On close scrutiny of the above provision and also the discussion, while passing the order regarding sentence, no special reasons are forthcoming for awarding imprisonment for 20 years. On close scrutiny of the above provision and also the discussion, while passing the order regarding sentence, no special reasons are forthcoming for awarding imprisonment for 20 years. Considering the gravity and nature of the offence on the victim girl of 17 years, the learned Trial Judge has ordered for 20 years imprisonment for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act . 57. It is settled principles of law and requires no emphasis that role of the Court while passing an order of conviction is altogether different from role of the Court while passing an appropriate sentence in a given case for the proved offences. 58. In the absence of any special reasons being recorded by the learned Trial Judge except mentioning that gravity of the offence is high and it may also have serious repercussions on the young girls at time, no special reasons are forthcoming for awarding sentence of 20 years nor any reasons are forthcoming for adequacy or inadequacy of the sentence. 59. Taking note of the fact that accused was earlier warned by the parents of the victim girl not to stalk her and despite the same, accused was following the victim girl and accused having committed the offence of kidnapping the victim girl and also having forcible sexual intercourse, reducing sentence from 20 years to 12 years by enhancing fine in a sum of Rs.50,000/- would meet the ends of justice in the facts and circumstances of this case. 60. Further, portion of the enhanced fine amount if paid as compensation to the victim girl, ends of justice would be further served. 61. Accordingly, point No.3 is answered partly in the affirmative. 62. REGARDING POINT No.4: In view of the finding of this Court on point Nos.1 to 3 as above, the following: ORDER : (i) Criminal Appeal is allowed in part. (ii) Conviction of the appellant for the offence punishable under Section 366A of the Indian Penal Code is hereby set-aside, instead, appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code . (ii) Conviction of the appellant for the offence punishable under Section 366A of the Indian Penal Code is hereby set-aside, instead, appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code . (iii) Sentence ordered by the learned Trial Judge for the offence under Section 6 of the Protection of Children from Sexual Offences Act is reduced from 20 years to 12 years by directing the appellant to pay enhanced fine amount of Rs.50,000/- on or before 31 st August 2025. (iv) Failure to pay the enhanced fine amount, accused shall undergo simple imprisonment for the proved offences for further period of one more year (12+1=13 years). (v) Out of the fine amount recovered, Rs.45,000/- is ordered to be paid as compensation to the victim girl under due identification. (vi) Balance sum of Rs.5,000/- is ordered to be appropriated to the State towards defraying expenses. (vii) Appellant to surrender before the Trial Court on or before 31 st August 2025 for serving remaining portion of the sentence. (viii) Registry is directed to return the Trial Court Records with copy of this order for issue of modified conviction warrant.