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2020 Supreme(Kar) 604
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
B.A. Patil, M.G. Uma, JJ.
Doula S/o Hussain Sab – Appellant
Versus
The State A by The Deputy Superintendent of Police, Hampi – Respondent
Criminal Appeal No.100260 of 2016
Decided On : 22-07-2020
Advocate Appeared:
For the Appellant : Smt. Sunitha P Kalasoor, Adv.
For the Respondent: Sri. Shivaprabhu Hiremath, AGA
Headnote:
Protection of Children from Sexual Offence Act, 2012 - Sections 4 and 6 - Scheduled Caste and Scheduled Tribe Act, 1989 - Section 3(2)(v) - Juvenile Justice Act, 2000 - Juvenile Justice 2007 - Rule 12 – Indian Penal Code - Sections 366-A, 506 and 376, 34 – Appeal against conviction – Condo nation of delay - Rigorous imprisonment - Whether person brought before it is a child or not Committee or Board as case may be shall undertake process of age determination by seeking evidence by obtaining - Case of prosecution in brief is that informant belonging to Community runs a tea stall and her daughter aged fifteen years studies in 9th standard in Govt. Girls School - Daughter left house saying that she is going to Doddi but did not return - Informants sister told she saw victim being taken by accused No.1 on his pulsar motorbike - Informant along with other family members went in search of victim but could not find her - She suspected that accused No.1 belonging to Muslim community might have kidnapped victim girl with an intention to marry her or with any other criminal intention and called on his phone - 1st accused rudely replied that she could take back victim if she is willing and disconnected – Therefore informant lodged first information requesting police to trace victim and to initiate legal action against accused No.1 - On basis of such complaint was registered against accused No.1 for offences punishable under Sections 366A of IPC r/w 3(2)(v) of SC/ST Act and took up investigation – Held, Prosecution is successful in proving that accused No.1 had kidnapped victim a minor to seduce her to illicit intercourse and then committed rape/penetrative sexual assault more than once on her he is liable to be punished for offences punishable under Sections 366 and 376(2)(i) of IPC and also under Section 6 of POCSO Act - Section 42 of POCSO Act mandates that regardless of anything contained in any law for time being in force offender found guilty of offences as prescribed therein shall be liable for punishment of greater degree either under POCSO Act or under Indian Penal Code - Offence under Section 376(2)(i) of IPC as it stood at time of commission of offence was punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life which shall mean imprisonment for reminder of that persons natural life and shall also be liable to fine - Section 6 of POCSO Act as it stood before amendment by Act No.29 of 2019 provided for rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and also fine - Trial court imposed sentence on accused for offence punishable under Section 376 of IPC to undergo rigorous imprisonment for a period of ten years with fine and default sentence and under Section 6 of POCSO Act to undergo simple imprisonment for a period of ten years with fine and default sentence - But however State has not preferred any appeal seeking enhancement of sentence imposed by trial Court - Having regard to Section 42 of POCSO Act, court are of opinion that accused is liable to undergo rigorous imprisonment for ten years and to pay fine as provided under Section 376(2)(i) of IPC - Regarding contention of prosecution that accused has committed offence punishable under Section 506 of IPC court do not find any convincing material to substantiate same – Hence court hold that prosecution has not proved commission of offence punishable under Section 506 of IPC by accused - Court have gone through impugned judgment of conviction and order of sentence passed by trial court - It has convicted accused for offence punishable under Section 366A instead of Section 366 IPC and Section 376 of IPC Sections 4 and 6 of POCSO Act by properly appreciating materials on record but committed an error in convicting him for offence punishable under Section 506 of IPC and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe Act without there being any material for same - Hence appellant/accused No.1 is entitled to be acquitted for offence punishable under Section 506 of IPC and Section 3(2)(v) of SC/ST Act - Section 33(8) of POCSO Act read with Rule 7(2) and (3) provides for compensation to child-victim in appropriate cases - Victim was a minor at time of incident - She would certainly need rehabilitation having suffered mental trauma as a result of incident - This in court opinion calls for a direction to trial court to recommend her case for payment of compensation under relevant Scheme as provided under Section 357A of Criminal Procedure Code - Appeal is allowed
JUDGMENT :
M.G. UMA, J.
Heard the learned Advocate for the appellant Smt.Sunitha P.Kalsoor and learned Additional Government Advocate Sri. Shivaprabhu Hiremath for the State.
2. The appellant who is the 1st accused in S.C.106/2014 has preferred this appeal aggrieved by the impugned judgment of conviction dated 19/1/2016 and order of sentence dated 21/1/2016 passed by the I Additional District and Session Judge, Ballari, (for short, referred to as “the trial Court”), holding him guilty of the offences punishable under Sections 366-A, 506 and 376 r/w Section 34 of IPC, Sections 4 and 6 of Protection of Children from Sexual Offence Act, 2012 (for short, referred to as “the POCSO Act”) and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, referred to as “the SC/ST Act”), while acquitting accused No.2 and 3.
3. The case of the prosecution in brief is that the informant Smt.Kamala belonging to valmiki Community runs a tea stall at M.D.Camp, Kampli and her daughter aged 15 years studies in 9th standard in the Govt. Girls School. On 2/4/2014, the daughter left the house saying that she is going to Doddi but did not return. Informant's sister Neelamma, told that at about 5.20 p.m., she saw the victim being taken by accused No.1 on his pulsar motorbike. The informant along with other family members went in search of the victim, but could not find her. She suspected that accused No.1 belonging to Muslim community might have kidnapped the victim girl with an intention to marry her or with any other criminal intention and called on his phone. The 1st accused rudely replied that she could take back the victim, if she is willing and disconnected. Therefore, on 05-04-2014 the informant lodged first information requesting the police to trace victim and to initiate legal action against accused No.1. On the basis of such complaint in Cr.No.76/2014 was registered against accused No.1 for the offences punishable under Sections 366A of IPC r/w 3(2)(v) of SC/ST Act and took up investigation.
4. During investigation, it was found that accused No.1 had kidnapped the victim and taken to Bangalore. There he committed penetrative sexual assault on her with the help of accused Nos.2 and 3. The victim was rescued and subjected to medical examination. After completing the investigation, charge sheet was filed against all the three accused for the offences punishable under Sections 366A, 506 and 376 r/w Section 114 of IPC, Sections 4 and 6 of POCSO Act and Section 3(2)(v) of the SC/ST Act.
5. The Special Court took cognizance of the matter. After securing the presence of accused 1 to 3, framed charges and they have pleaded not guilty and claimed to be tried.
6. To prove its case, the prosecution has examined PWs.1 to 21, got marked Exs.P1 to 29 and MOs.1 to 7. The accused 1 to 3 were examined as required under section 313 Cr.P.C and they have denied all the incriminating materials. No defence evidence was let in by them.
7. The trial Court after taking into consideration the material on record, came to the conclusion that accused No.1 is guilty of the offences punishable under Sections 366-A, 506 and 376 r/w Section 34 of IPC, Sections 4 and 6 of POCSO Act and Section 3(2)(v) of the SC/ST Act, while acquitting accused Nos.2 and 3.
8. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, appellant-accused No.1 has preferred this appeal on various grounds.
9. Learned Advocate for the appellant-Smt. Sunitha P.Kalsoor in support of the grounds made out in the memorandum of appeal, submitted that the impugned judgment of conviction and order of sentence passed by the trial Court is illegal, perverse and the same is liable to be set aside. The trial Court has committed an error in convicting accused No.1 even though the prosecution has failed to prove the guilt beyond reasonable doubt. The trial Court passed its judgment based on the interested testimony of the victim and her f
