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THE HIGH COURT OF KARNATAKA
H.P. Sandesh, B. Muralidhara Pai, JJ
AKBAR ALIAS SUBANI S/O. ABDUL RAHIM ALIAS BABAJAN HALBHAVI – Appellant
Versus
THE STATE OF KARNATAKA – Respondent
CRL.A No. 100087 of 2023
(A) Indian Penal Code, 1860 - Sections 363, 366, 376, 506 - Protection of Children from Sexual Offences Act, 2012 - Sections 4 and 6 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(2)(v) - Kidnapping - Rape - Sexual assault - Prosecution case based on uncorroborated testimony of minor victim - Medical evidence found no recent sexual assault - Hymen absent but doctor admitted in cross-examination that report did not mention rupture, and injury could be caused by routine work - Victim roaming with accused freely for four days after alleged incident, complaint lodged after 15 days delay - Conduct of victim and lack of positive medical evidence renders testimony unreliable for rape charges - For kidnapping of minor from lawful guardianship without consent, offence under Section 363 IPC is made out - Penal Code Sections 366 and 506 also fail as prosecution fails to prove inducement or credible threat - SC/ST Atrocities Act not attracted as accused is relative and victim voluntarily accompanied him. (Paras 10, 16-19)
(B) Appeal - Scope - Appellate court re-appreciates evidence to determine correctness of conviction - If evidence of key prosecution witness is not trustworthy and medical evidence does not corroborate alleged sexual assault, conviction for rape cannot be sustained. (Paras 9, 16-17)
(C) Compensation - Power to award compensation instead of imprisonment - Where accused convicted for kidnapping but not for rape, court may, having regard to period already undergone, direct payment of substantial compensation to victim in lieu of sending him back to jail for remaining sentence - Such direction must ensure compliance with timeline for payment, failing which the default prison sentence shall revive. (Para 21)
Facts of the case:
The appellant (Accused) was convicted by the trial court under Sections 363, 366, 376, 506 IPC, Sections 4 & 6 of POCSO Act, and Section 3(2)(v) of SC/ST (POA) Act and sentenced to life imprisonment with fine. The prosecution case was that on 18.09.2019, the accused, knowing the victim (then aged 17 years) was a minor and belonging to SC community, took her on his motorcycle by falsely claiming her mother was met with an accident, took her to a forest area, tied her legs and hands, and forcibly committed sexual intercourse. He then took her to the house of another person (PW4) and repeated the act, and thereafter roamed with her to several places (Belagavi, Sankeshwar, Kakkeri, Bomanagi) for four days until 22.09.2019 when police brought them to the station. The victim was sent to Santhvana Kendra and complaint was lodged on 03.10.2019. The accused appealed against the conviction.
Findings of Court:
The High Court re-appreciated evidence and found the victim's testimony (PW1) unreliable. She admitted roaming freely with the accused for four days on a motorcycle on highways without raising any alarm. The medical evidence (PW6-doctor) was not positive for recent sexual assault; hymen was absent but the doctor admitted the report did not mention rupture and the injury could be from routine work. Witnesses PW4 and PW8 (supposed to corroborate the stay) turned hostile. The court found no credible evidence for rape (Section 376 IPC), sexual assault (POCSO Act Sections 4 & 6), or the SC/ST Atrocities Act offence (Section 3(2)(v)) as the accused was a relative and the victim voluntarily accompanied him. However, since the victim was minor (17 years) and the accused took her from the custody of her natural guardian without consent, the offence under Section 363 IPC (kidnapping) stood proved. The court also found no credible evidence for Sections 366 and 506 IPC. (Paras 10, 11, 16, 17, 18, 19)
Issues: Whether the trial court erred in convicting the accused for offences of rape, sexual assault under POCSO Act, and under SC/ST Act when medical evidence was negative and victim's conduct was inconsistent with her allegations. Whether the only offence made out was kidnapping under Section 363 IPC.
Ratio Decidendi: For a conviction for rape, the prosecution must prove the act of sexual intercourse beyond reasonable doubt. Where the victim's testimony is not credible, especially in light of her conduct (freely accompanying the accused for days without complaint) and medical evidence does not support recent sexual assault, the conviction cannot stand. A mere absence of hymen without medical evidence of rupture is insufficient to establish rape. The offence of kidnapping of a minor from lawful guardianship is made out when the victim is taken without the consent of her natural guardian, even if she goes voluntarily. An offence under the SC/ST (POA) Act is not made out when the accused is a relative and the victim voluntarily accompanied him. Compensation can be directed in lieu of sending the accused back to prison for the remaining sentence for kidnapping, provided the amount is paid within a stipulated time.
Result: Appeal allowed in part. Conviction and sentence under Sections 376, 366, 506 IPC, Sections 4 & 6 of POCSO Act, and Section 3(2)(v) of SC/ST (POA) Act set aside. Fine for those offences refunded to appellant. Order for payment of Rs.2,90,000/- under Section 357A Cr.P.C. set aside. Conviction under Section 363 IPC sustained. In lieu of remaining imprisonment, accused directed to deposit Rs.3,00,000/- before trial court within one week, to be paid to the victim. If accused fails to deposit, he shall undergo remaining sentence for Section 363 IPC. Fine of Rs.15,000/- for Section 363 IPC to vest with State. Rs.10,000/- payable to Amicus Curiae.
| Table of Content |
|---|
| 1. appeal against conviction under pocso, ipc, sc/st act. (Para 1 , 2 , 3) |
| 2. prosecution case: kidnapping, rape, and threats by accused. (Para 4) |
| 3. arguments: lack of medical evidence, delay in complaint, consent. (Para 5 , 6 , 7 , 8) |
| 4. court frames issues for consideration on appeal. (Para 9) |
| 5. re-appreciation of evidence of victim and medical witness. (Para 10 , 11 , 12 , 13 , 14) |
| 6. victim's conduct and medical evidence are unreliable for rape. (Para 15 , 16 , 17) |
| 7. conviction under section 363 ipc only; other offences not proven. (Para 18 , 19 , 20) |
| 8. compensation ordered in lieu of remaining sentence for kidnapping. (Para 21) |
| 9. appeal allowed in part; conviction for rape set aside. (Para 22) |
ORAL JUDGMENT
(PER: HON'BLE MR.JUSTICE H.P.SANDESH)
Heard the learned counsel for the appellant and the learned Addl. SPP for the respondent No.1/State and Amicus Curie appearing for respondent No.2/complainant.
2. This appeal is filed against the judgment of conviction dated 24.08.2022 and order on sentence dated 25.08.2022 passed in Spl.Case No.88/2019 on the file of learned Addl. District and Sessions Judge, FTSC-I, U.K., Karwar (Special Court for trial of cases filed under POCSO Act) (for short, ‘trial Court’) imposing the sentence of life imprisonment for the offence punishable under Section 3(2)(v) of the Schedule Castes/Schedule Tribes (Prevention of Atrocities Act) 1989 and Amendment Act 2015, Section 376 of IPC and Sections 4 and 6 of POCSO Act with fine of Rs.90,000/- and the accused was sentenced to undergo for a period of four years and to pay fine of Rs.15,000/- for the offence punishable under Sections 363 and 366 of IPC and also imposed default sentences for both the offences; the accused was also convicted for the offence punishable under Section 506 of IPC and sentenced to undergo simple imprisonment for six months with fine of Rs.5,000/- and given the benefit under Section 428 of Cr.P.C. and also directed that the fine imposed to the accused shall be recovered from him and shall be paid to the victim girl and apart from that, the trial Court directed to pay an amount of Rs.2,90,000/- under Section 357A of Cr.P.C. under the victim’s compensation scheme and directed the DLSA, Karwar to pay the compensation to the victim girl. The appellant prays to set aside the judgment of conviction and order on sentence.
3. This Court directed the Member Secretary, DLSA, Karwar as to whether the compensation is disbursed to the victim girl, for which the report is received from the Member Secretary, DLSA, Karwar stating that the amount of Rs.2,90,000/- is not disbursed to the victim girl.
4. The factual matrix of the case of the prosecution is that the accused knowing fully well that the victim girl is a minor and belongs to Hindu Holera community, which comes under SC category and the accused belongs to Muslim community, persuaded her saying that he is loving her and would marry her and on 18.09.2019 at 7.30 p.m., he pretended that the victim girl’s mother has met with an accident and making such statement, he took the victim girl to the road, which is near his house, situated at Bombay Chal, Dhandeli; from there, he took the victim girl on his motorcycle bearing reg. No.KA-31/V-5282 to old Dhandeli Forest Depot, Kumbarakoppa, Survey No.7A/1 forest area. The accused tied her legs with chudidar veil and tied her legs with rope and subjected her for sexual act and when the victim girl reacted that she will tell the same to her mother and police, the accused abused her in a filthy language and threatened her with dire consequences that if she tells the same to anyone, he is going to take away her life. Thereafter, the accused took her to the house of CW7-Anil, bearing No.B-1698 situated at Gandhinagar, Dandeli at 10.30 p.m. on his motorcycle and stayed in the said house and once again he committed forcible sexual intercourse with her on the same night. The accused in the evening, told the victim girl that he will leave her
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