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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
Suraj Govindaraj, J.M.Khazi, JJ.
Abdulkhadar S/o Abdulgafar Tapal – Appellant
Versus
The State Of Karnataka (Savanoor Police Station), R/By State Public Prosecutor – Respondent
Criminal Appeal No.100010 of 2020
Decided On : 09-12-2021
Conviction - Sexual Offences - IPC, POCSO Act - Section 377 of IPC, Sections 4, 6, 12 of the POCSO Act
Fact of the Case:
The accused was convicted for the offences punishable under Section 377 of IPC and Sections 4, 6, 12 of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleged that the accused committed anal penetration with a minor victim belonging to a scheduled caste.
Finding of the Court:
The court found that the evidence of various witnesses, including the victim and medical reports, supported the prosecution's case. The court also noted that the victim's identification of the accused and the absence of enmity between the victim's family and the accused further established the accused's complicity in the offences. The court rejected the accused's arguments regarding the unconstitutionality of Section 377 of IPC, emphasizing that the sexual act was non-consensual and committed on a minor, making the Apex Court's decision inapplicable. Consequently, the court confirmed the conviction and order of sentence, dismissing the appeal filed by the accused.
Issues: Identification of the accused, medical evidence, constitutionality of Section 377 of IPC
Ratio Decidendi: The court relied on the victim's identification of the accused, medical evidence establishing anal penetration, and the absence of enmity to establish the accused's guilt. The court also interpreted the Apex Court's decision on the constitutionality of Section 377 of IPC, emphasizing the non-consensual and minor victim nature of the offence.
Final Decision: The appeal filed by the Accused is dismissed.
JUDGMENT :
SURAJ GOVINDARAJ, J.
1. The accused/appellant is before this court challenging the judgment dated 06.12.2019 passed by the I Additional District and Sessions Judge and Special Judge at Haveri (for brevity ‘the trial Court’) in Spl. SC/ST No.03/2017 under which the accused was convicted for the offences punishable under Section 377 of IPC and Sections, 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for brevity ‘the POCSO Act).
2. The case of the prosecution is that on 25.10.2016 at about 10 a.m., PW-1 -complainant had sent her minor son to bring cow dung for the purpose of applying it in the house. When he had gone to the Tank Bund in Savanur, the accused is alleged to have dragged him to a place near a Canal which is situated next to the poultry farm of one Pathan, removed the dress of the minor victim and committed anal penetration with the knowledge that the minor victim belonged to scheduled caste. Thus, offences alleged to have been committed under Section 377 of IPC and Sections 4, 6, 12 of the POCSO Act as also Sections 3(1)(i), 3(2)(Va) of SC/ST (Prevention of Atrocities) Act, 1989.
3. Upon investigation being completed, the Investigation Officer filed a chargesheet for the offences alleged. The trial Court framed charges, the accused denied the charges and claimed to be tried.
4. The prosecution examined 15 witnesses as PWs -1 to 15, got marked 21 exhibits as Ex.P.1 to Ex.P.21 as also three material objects as M.Os.1 to 3.
5. Upon evidence of the prosecution being completed, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied all the allegations made against him but did not lead any evidence.
6. After arguments being heard, the trial Court convicted the accused of the offences Section 377 of IPC and Sections 4, 6, 12 of the POCSO Act but acquitted the accused of offences under Sections 3(1)(i), 3(2)(Va) of SC/ST (Prevention of Atrocities) Act, 1989, and sentenced the accused for the offences convicted.
7. Shri R.H.Angadi, learned counsel for the appellant/accused submits that
7.1. The trial Court has not appreciated the evidence properly, if the same had been appreciated properly, there could have been no order of conviction or sentence,
7.2. The identity of the accused is in dispute inasmuch as the victim has only mentioned the name of Munir Golewale and that the victim has not mentioned the name of the accused. It is the said Munir Golewale who ought to have been tried, instead the accused has been tried resulting in grave injustice being caused to the accused.
7.3. There is no evidence on record to indicate that the accused has committed any offence much less the ones alleged against him.
7.4. There is no test identification parade which has been carried out and the question of implicating the accused in the crime would not arise at all without a test identification parade. The victim not having identified the accused, no investigation could have been carried out and/or the charge sheet laid against the accused.
7.5. There is no medical evidence as regards any offence committed under Section 377 of IPC and the medical evidence does not indicate or establish any penetrative sexual assault.
7.6. That the Apex Court has held the provisions of Section 377 IPC to be unconstitutional in the case of NAVTESH SINGH JOHAR AND OTHERS VS. UNION OF INDIA reported in (2018) 10 SCC 1 and as such upon such judgment having been passed by the Apex Court, no offence can be said to have occurred under Section 377 IPC nor any prosecution be initiated under that provision.
7.7. It is in the above background, he submits that the order of conviction and sentence is required to be set aside.
8. Per contra, Shri V.M. Banakar, learned Additional Public Prosecutor would submit that :
8.1. Munir Golewale and the accused are different persons. The victim was only aware of Munir Golewale and hence, he has mentioned his name referring to the accused Abdul Khadar as a person who was known t
Non-consensual sexual acts against minors and adults, and acts of bestiality continue to be governed by Section 377 of IPC, despite the reading down of the section for consensual sexual acts of adult....
The judgment upheld the conviction under POCSO and IPC sections, establishing that anal penetration against a minor constitutes a serious offense, irrespective of references to more recent interpreta....
The necessity of proving penetration or manipulation causing penetration for charges under the POCSO Act was emphasized, leading to a conviction for attempted offences.
The absence of injury does not discredit the victim's testimony, especially considering the victim's young age and the nature of the assault. The need to protect children from sexual assault and hara....
Section 7 of POCSO Act reads as whoever, with sexual intent touches vagina, penis, anus or breast of the child with sexual intent without penetration is said to commit sexual assault.
The court established that the definitions of sexual assault under the POCSO Act and rape under the IPC are closely aligned, and the presumption of guilt under the POCSO Act places a significant burd....
A conviction for sexual assault against a minor may be based solely on the child's credible and consistent testimony. Minor errors in formal charges, such as incorrect incident timing, do not invalid....
The court affirmed the conviction under the POCSO Act while ruling that the appellant cannot be punished under both the POCSO Act and IPC for the same act, modifying the sentence accordingly.
The main legal point established in the judgment is the principle that corroboration is not required for the testimony of the victim in case of rape if the evidence is of sterling quality. The judgme....
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