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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S. MUDAGAL, J.
Somashekara @ Soma, S/o. Late Narayanappa - Appellant
Versus
State of Karnataka, Banaswadi Police Station Bangalore, Rep. by SPP - Respondent
Criminal Appeal No. 328 of 2018
Decided On : 31-01-2022
Criminal Procedure Code, 1973 - Section 164, 313, 374(2), 303, 304, 311 - Indian Penal Code, 1908 - Section 376, 506, 323 - Protection of Children from Sexual Offences Act, 2012 - Section 5(1), 6, 33(5) - Constitution of India, 1950 - Article 13(2), 13, 21, 22, 23, 39A - Punishment for Rape - Criminal intimidation - Protection of life and personal liberty - Equal justice and free legal aid - appellant and PW.2 the victim are neighbours - Victim girl was aged 14 years - Appellant luring the victim girl of love, took her to a secluded place, and committed penetrative sexual assault on her - He intimidated her not to reveal the incident to others - Thereafter, threatening the victim that he will disclose the first incident to others and defame her and her mother, he took her to another secluded place several times and raped her - Whether the impugned order of conviction and sentence is sustainable in law.
Finding of the Court :
It was mandated by Section 33(5) of POCSO Act to reject the prayer for granting time to the accused for cross-examination - On such ground, it had rejected the application filed by the accused under Section 311 of Cr.P.C. to recall PWs-1 to 3 - Article 13(2) of the Constitution bars the State from making any law which takes away or abridges the fundamental rights - Therefore such interpretation of Section 33(5) of the POCSO Act by the trial Court runs contrary to Article 13 of the Constitution - Courts have to strike harmony between two laws - Therefore when the counsel representing the appellant failed to appear, the appropriate action on the part of the Trial Court was to appoint a legal aid advocate to defend the appellant.
Result : Appeal is allowed.
JUDGMENT :
Aggrieved by the order of conviction and sentence passed against him for the offences punishable under Sections 376, 506, 323 of IPC and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), the accused in Spl. C.C. No.136/2015 on the file of LIII Additional City Civil and Sessions Judge, Bengaluru, has preferred the above appeal. The appellant was prosecuted in the said case for the aforesaid offences on the basis of complaint of PW-1, Smt. Kolaramma, mother of the victim girl PW-2.
2. The case of the prosecution in brief is as follows:
The appellant and PW.2 the victim are neighbours. The victim girl was aged 14 years. The appellant luring the victim girl of love, took her to a secluded place near Babupalya, Horamavu, and committed penetrative sexual assault on her. He intimidated her not to reveal the incident to others. Thereafter, threatening the victim that he will disclose the first incident to others and defame her and her mother, he took her to another secluded place several times and raped her. Ultimately, during the last of such act on 23.10.2014, he assaulted the victim. On 26.10.2014, when he again came to call the victim girl, she was scared and revealed the incident to her mother PW-1 and her aunt PW-3.
3. CW-4 is the brother of PWs-1 and 3. PW-1 filed complaint before PW.8. On the basis of the said complaint, PW-8 registered FIR as per Ex.P7 and got the victim medically examined through PW-4 Dr.Nagaraj, conducted spot mahazar, recorded the statement of witnesses and got the statement of the victim recorded through magistrate under Section 164, Cr.P.C. After completing investigation, he filed charge sheet.
4. The appellant was arrested and he was in judicial custody. On framing charges against the appellant, the Trial Court conducted the trial. During trial, the learned counsel for the appellant failed to conduct cross-examination of PWs-1 to 4 who are the material witnesses. PW-5 who was examined to prove that she found the appellant and PW-2 frequently together and had advised them, did not support the prosecution case.
5. The appellant's counsel cross-examined PW-6 who apprehended the appellant and produced him before the Investigating Officer PW-8. He also cross-examined PW-7 head master who deposed about date of birth of PW.2.
6. The Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. On such examination the appellant submitted defence statement to the effect that the victim was in love with one Bihari boy and he had abused her. He further stated that PW-2 was in a depressed state and at that stage, he consoled her. He claimed that regarding bursting of crackers, a quarrel ensued between PW-3 and himself and to take revenge, she instigated PW-1 and PW-2 to file the complaint and falsely implicated him in the case.
7. The Trial Court on hearing the parties, passed the impugned judgment and order convicting the appellant for the offences punishable under Sections 376, 506, 323 of IPC and Section 5(l) read with Section 6 of the POCSO Act and imposed the following sentence :
| Sl. No. | Convicted for the offence punishable under Section | Sentence of imprisonment | Fine amount in Rupees | Default sentence |
| 1. | 376 of IPC | S.I. of 7 years | 25,000/- | Simple imprisonment of 1 year |
| 2. | 506 of IPC | S.I. of 2 years | ---- | ----- |
| 3. | 323 of IPC | S.I. of 1 year | ----- | ----- |
| 4. | 5(l) r/w 6 of POCSO Act | R.I. for 10 years | 50,000/- | Simple imprisonment for 2 years |
| 5. | Rule 7(2) & 7(4) of POCSO Act | Compensation of Rs.1,00,000/- | ||
8. The Trial Court held that the evidence of material witnesses, PWs-1 to 4 was not controverted and thereby, charges against the appellant stood proved. The Trial Court further held that despite it granting opportunity, the accused and his counsel did
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