—
Karnataka High Court
The State Of Karnataka vs Shaukath Ali on 2 April, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 Crl.A. NO.11/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02nd DAY OF APRIL, 2024
PRESENT
THE HON’BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON’BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.11 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
BY WOMEN POLICE, DAVANGERE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU.
…APPELLANT
(BY SMT. RASHMI JADHAV, ADDITIONAL S.P.P.)
AND:
1. SHAUKATH ALI
S/O SHEKH YOUSUF
AGED 21 YEARS
RESIDENT OF H.K.R. CIRCLE
DAVANGERE-570 001.
2. SMT. AFOZ BANU
W/O SHAFI AHMAD
AGED 38 YEARS
HOUSE WIFE
DOOR NO.1629/3
VIDYARTHI BHAVAN
NEAR KRISHNA HOTEL
2 Crl.A. NO.11/2018
DAVANGERE CITY.
(IMPLEADED VIDE COURT ORDER DATED
23.11.2023)
…RESPONDENTS
(BY SRI P.B. UMESH ADVOCATE FOR
SRI R.B. DESHPANDE, ADVOCATE FOR R-1;
SMT. ARCHANA K.M., AMICUS CURIAE FOR R-2
VIDE COURT ORDER DATED 07.12.2023)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
05.05.2017 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE IN
S.C.NO.11/2016 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376, 324 AND 506 OF IPC AND SECTION 4 AND 8 OF
POCSO ACT, 2012.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 13.03.2024, COMING ON FOR PRONOUNCEMENT,
THIS DAY, VENKATESH NAIK T. J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
The State has filed this appeal under Section 378(1)
and (3) Code of Criminal Procedure, 1973 (hereafter for
3 Crl.A. NO.11/2018
brevity referred to as Cr.P.C.) challenging the judgment of
acquittal dated 05.05.2017 passed by II Addl. District and
Sessions Judge and Special Judge, Davangere in
S.C.No.11/2016 acquitting the accused of the offences
punishable under Sections 376, 324 and 506 of Indian
Penal Code, 1860(hereinafter for brevity referred to as
‘IPC’) and Sections 4 and 8 of The Protection Of Children
From Sexual Offences Act, 2012 (hereinafter for brevity
referred to as ‘POCSO Act’).
2. The summary of the case of the prosecution before
the Special Court was that PW.1 Smt. Afrozabanu, mother
of victim(PW3) lodged a complaint-Ex.P1 on 31.10.2015
alleging that she is a permanent resident of Davangere
Town, she has three children and among them, the first
child-victim is a deaf and dumb girl. PW1’s husband is
working as a flower merchant and her mother-in-law
Bibijan(PW.8) remains in the house. Since three years as on
4 Crl.A. NO.11/2018
the date of alleged incident, the accused was working as a
labour in the flower shop of her husband.
2a. On 26.10.2015 at 2.00 p.m., PW.1 left the house
in order to wash the clothes in a canal and returned at 8.00
p.m. In the mean while, the accused entered the house and
committed penetrative sexual assault on the deaf and dumb
girl-victim, pressed her chest and made scratch marks on
her chest bitten by his teeth and thus caused injuries. Soon
after return of PW.1, the victim was not natural, hence, she
enquired about her behavior, victim was not normal in the
house, later PW.1 saw visible injury on the chest of the
victim and thus when she enquired the victim as to who
caused the injuries, the victim girl did not reveal.
2b. After five days of the incident, again PW.1
enquired the victim and also made hand gestures of about
five to six persons’ names. Ultimately, the victim gave
symbolic gesture that the accused caused such injuries and
hence, PW.1 lodged the complaint as per Ex.P1. Based on
5 Crl.A. NO.11/2018
the complaint, the Women Police, Davangere registered a
case in Cr.No.113/2015 for the aforesaid offences and
submitted FIR (Ex.P10) and complaint to the Court.
2c. After registering the same, the Investigating
Officer visited the scene of occurrence, drew spot mahazar,
recorded the statement of the witnesses, took the victim to
the hospital for medical examination and also produced her
for recording the statement under Section 164 Cr.P.C. He
arrested the accused and later produced him before the
Magistrate. The Investigating Officer after completion of
investigation filed the charge sheet for the aforesaid
offences.
3. In order to prove the alleged guilt against the
accused, the prosecution got examined in all 10 witnesses
as PWs.1 to 10 and got marked 10 documents from Ex.P1
to Ex.P10 and no material objects have been marked. From
the accused side, neither any witness was examined nor
any documents were marked as exhibits.
6 Crl.A. NO.11/2018
4. After hearing both side, the learned Special Judge’s
Court, by its judgment dated 05.05.2017, acquitted the
accused of the offences charged. Challenging the same, the
State has preferred the present appeal.
5. Respondent No.1/accused is being represented by
his learned counsel and respondent No.2-complainant
though was served had remained absent and hence the
Court proceeded to appoint learned counsel Smt. K.M.
Archana, as Amicus Curie for respondent No.2.
6. Learned Additional State Public Prosecutor for the
appellant -State and learned counsel for respondent
No.1(accused) and learned Amicus Curiae for the
respondent No.2(complainant) are physically appearing in
the Court.
7. The Special Judge’s Court records were called for
and the same are placed before this Court.
7 Crl.A. NO.11/2018
8. Heard the arguments from both side. Perused the
materials placed before this Court including
the memorandum of appeal, impugned judgment and the
Special Court records.
9. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
learned Special Judge’s Court.
10. After hearing the learned counsels for the parties,
the Special court framed the following points for its
consideration:-
1. Whether the prosecution has proved beyond
reasonable doubt that the accused on 26.10.2015, in
between 2.00 p.m. in the afternoon and 8.00 p.m. in
the night, when the victim girl PW.3/CW.2 who is a
dumb girl was alone in the house situated near
Vidyarthi Bhavana, KTJ Nagara, Davanagere,
at that time, accused committed aggravated
penetrative sexual assault on her against her will
knowingly that she was minor then, thereby
committed an offence punishable under Section 4 of
POCSO Act?
2. Whether the prosecution has proved beyond
reasonable doubt that the accused on the date, time
and place mentioned above when the victim
8 Crl.A. NO.11/2018PW.3/CW.2 was alone in her house, he outraged her
modesty by touching secret parts of her body and
thereby committed an offence under section 8 of
POCSO Act?
3. Whether the prosecution has proved beyond
reasonable doubt that the accused on the aforesaid
date, time and place when victim was alone in the
house, at that time, he has committed
rape on her against her will and without her consent
and thereby has committed an offence under section
376 IPC?
4. Whether the prosecution has proved beyond
reasonable doubt that the accused caused simple
injuries to victim by biting and scratching her with
his teeth on her chest and thereby committed an
offence under section 324 IPC? and
5. Whether the prosecution has proved its case against
the accused further proves beyond all reasonable
doubt that on the aforesaid date, time and place, this
accused after committing rape on her, has
committed criminal intimidation by threatening with
dire consequences to her life, if she disclose the
matter to anybody, and thereby committed an
offence punishable under section 506 IPC?
6. What order?
11. Learned Additional SPP for the appellant-State in
her argument submitted that as on the date of alleged
offence, the victim girl was minor in her age, more
particularly, she is a deaf and dumb girl. As such, her
9 Crl.A. NO.11/2018
alleged consent, if any, would not be a valid consent in the
eye of law. It is contended that the victim-PW.3 and PW.4
the teacher of deaf and dumb school, Davanagere, who
translated statement of victim under Section 164 Cr.P.C.
and translated the oral testimony of PW.3 before the Court
have supported the case of the prosecution. Further, PW.5-
Sumiyabanu, sister of PW.1 and aunt of victim and the
grandmother of victim-PW.8 Bibijan have stated about the
incident and corroborate the oral testimony of the victim.
Further, the oral testimony of the victim, her mother, her
aunt, her grandmother and PW.4 teacher is supported by
medical evidence. PW.6-Doctor has clearly stated that there
is injury on left chest of the victim and there were scratch
marks on both sides of chest, bluish injury on left chest,
hymen was not ruptured. But, the Special Court failed to
properly appreciate the medical evidence placed by the
prosecution to establish the guilt of the accused. Non-
appreciation of evidence and materials on record in proper
10 Crl.A. NO.11/2018
perspective has resulted in miscarriage of justice. It is
contended that the Special Court ought to have appreciated
the evidence of the victim which is sufficient to bring home
the guilt of the accused as the victim has categorically
stated about the act committed by the accused.
12. Relying upon few judgments of Hon’ble Apex
Court and also a judgment of co-ordinate bench of this
Court, the learned Additional SPP for the appellant-State
submitted that when there is oral evidence of victim and
her mother showing the age of the victim as a minor and
PW.7-Dr. L. Ashok, Dentist, Bapuji Hospital, Davanagere
has estimated the age of victim as 15 years (+) or (-) 2
years which comes to 17 years as per Ex.P9. Therefore, as
on the date of incident, the victim was a minor, but the trial
Court has not considered this aspect and failed to invoke
Section 29 of POCSO Act and drew presumption in favor of
the prosecution. Thus, learned Addl. State Public Prosecutor
prayed to allow the appeal.
11 Crl.A. NO.11/2018
13. The learned Additional SPP relied upon the
following citations:
1. Wahid Khan v. State of Madhya
Pradesh reported in (2010) 2 SCC 9.
2. State of Himachal Pradesh v.
Manga Singh reported in (2019) 16
SCC 759.
14. Sri P.B. Umesh for Sri R.B.Deshpande, learned
counsel for respondent No.1/accused in his argument
submitted that PW.3 is a deaf and dumb girl and she was
tutored by her mother, aunt and grandmother and they are
planted witnesses in this case. The victim as well as the
interpreter have not stated about the ingredients of Section
376 of IPC and Section 4 of POCSO Act so as to attract
those provisions in its perspective.
15. It is contended that the incident took place in a
busy area and there were three other workers working in
the flower shop of PW.1 and her husband. However, PW.1
12 Crl.A. NO.11/2018
and victim made allegation against accused alone in the
absence of any material particulars. It is contended that
though PW.6 Dr. Nagaveni S.K. has shown the injury, but
she has not stated the nature of injury. Further, PW.6 did
not mention that victim was mentally unstable. The Doctor
certifies that the victim is able to make independent
judgment; she is aware of consequence of social action. It
is contended that there is delay of almost 7 days in filing
the complaint and no explanation is offered by the
complainant. Further, the Special Court has failed to
videograph the oral testimony of PW.3-victim during trial,
which is a mandate under Section 119 of Indian Evidence
Act, 1872. It is contended that the scribe of complaint-
Ex.P1 is not examined and so far as statement recorded
under Section 164 Cr.P.C, no translation is done in the
question and answer form. Therefore, the very recording of
victim’s statement under Section 164 Cr.P.C is doubtful.
13 Crl.A. NO.11/2018
Hence, learned counsel for the accused/respondent No.1
prayed to dismiss the appeal.
16. The learned counsel for respondent No.1/accused
also relied upon decisions of Hon’ble Apex Court in his
support and submitted that the impugned judgment does
not warrant any interference at the hands of this Court.
17. Smt. Archana K.M. learned Amicus Curiae
appearing for defacto complainant/respondent No.2
submitted that PWs.1, 3, 4, 5 and 8 have clearly stated that
the accused committed penetrative sexual assault on the
victim, he scratched with his teeth on the chest of victim
and also made criminal intimidation to her.
18. The oral evidence of PWs.1, 3, 5 and 8 is
corroborated with medical evidence. PW.6 doctor has stated
that on examination of the victim, she found injury on left
chest, scratch on both sides of chest, and bluish injury on
left chest. Hence, there is ample evidence to show that the
14 Crl.A. NO.11/2018
victim was subjected to penetrative sexual assault by the
accused. Further, as on the date of incident, the victim was
a minor, aged 15 years. PW.7-Dr.L. Ashok, Dentist has
estimated the age of victim to be 15 years (+)/(-) 2 years,
which comes to 17 years. Hence, the victim was below 18
years at the time of the incident. But, the Special Court
without considering the oral evidence of PWs.1, 3, 5 and 8
and medical evidence proceeded to acquit the accused.
Hence, she prayed to allow the appeal.
19. After hearing the learned counsel from both side,
the points that arise for our consideration in this appeal
are:
1. Whether the prosecution has proved beyond
reasonable doubt that on 26.10.2015 in between 2.00
p.m. and 8.00 p.m., the accused entered the house of
PW.1 when victim girl-PW3 was alone in the house,
who is a deaf and dumb girl and has committed
aggravated penetrative sexual assault on her against
15 Crl.A. NO.11/2018her will knowingly that she was minor then and
thereby committed an offence punishable under
section 4 of POCSO Act r/w 376 IPC?
2. Whether the prosecution further proves that on the
aforesaid date, time and place, when the victim PW.3
was alone present in her house, accused touched
secret parts of her person, scratched with his teeth on
her chest and thereby committed an offence
punishable under section 8 of POCSO Act?
3. Whether the prosecution further proved that, the
accused after committing sexual assault on her, made
criminal intimidation by threatening her with dire
consequences, if she disclose the matter to anybody
and thereby committed an offence punishable under
section 506 of IPC?
4. Whether the prosecution further proves its case
against the accused beyond all reasonable doubt that,
16 Crl.A. NO.11/2018on the aforesaid date, time and place, when the victim
girl was alone present in her house, the accused has
caused simple injury to her by biting her and
scratching with nails on her body, and thereby
committed an offence punishable under section 324 of
IPC?
5. Whether the judgment of acquittal under appeal
warrants any interference at the hands of this Court?
20. Before proceeding further in analyzing the
evidence led in the matter, it is to be borne in mind that it
is an appeal against the judgment of acquittal of
accused/respondent No.1 of the offences punishable under
Sections 376, 324 and 506 of IPC and Sections 4 and 8 of
POCSO Act, 2012. Therefore, the accused has primarily the
double benefit. Firstly, the presumption under law is that
unless his guilt is proved, the accused has to be treated as
an innocent person in the alleged crime. Secondly, the
17 Crl.A. NO.11/2018
accused has already been enjoying the benefit of judgment
of acquittal passed under the impugned judgment. As such,
bearing the same in mind the evidence placed by the
prosecution in the matter is required to be analyzed.
(a) Our Hon’ble Apex Court, in its judgment in the case
of Chandrappa and others -vs- State of Karnataka,
reported in (2007) 4 Supreme Court Cases 415, while
laying down the general principles regarding powers of the
Appellate Court while dealing in an appeal against an order
of acquittal, was pleased to observe at paragraph 42(4) and
paragraph 42(5) as below:
” 42(4) An appellate Court, however, must bear in mind
that in case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved
guilty by a competent Court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial Court.
42(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate Court should not
disturb the finding of acquittal recorded by the trial Court.”
18 Crl.A. NO.11/2018
(b) In the case of Sudershan Kumar -vs- State of
Himachal Pradesh reported in (2014) 15 Supreme
Court Cases 666, while referring to Chandrappa’s case
(supra), the Hon’ble Apex Court at Paragraph 31 of its
Judgment was pleased to hold that, it is the cardinal
principle in criminal jurisprudence that presumption of
innocence of the accused is reinforced by an order of
acquittal. The Appellate Court, in such a case, would
interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs-
State of Kerala, reported in (2022) 8 Supreme Court
Cases 440, at Paragraph 25 of its judgment, the Hon’ble
Apex Court was pleased to observe as below:
” 25. While dealing with an appeal against acquittal by
invoking Section 378 Cr.P.C, the appellate Court has to consider
whether the trial Court’s view can be termed as a possible one,
particularly when evidence on record has been analysed. The
reason is that an order of acquittal adds up to the presumption of
innocence in favour of the accused. Thus, the appellate Court has
to be relatively slow in reversing the order of the trial Court
19 Crl.A. NO.11/2018rendering acquittal. Therefore, the presumption in favour of the
accused does not get weakened but only strengthened. Such a
double presumption that enures in favour of the accused has to
be disturbed only by thorough scrutiny on the accepted legal
parameters.”
The above principle laid down by it in its previous case
was reaffirmed by the Hon’ble Apex Court, in the case of
Ravi Sharma -vs- State (Government of NCT of Delhi) and another
reported in (2022) 8 Supreme Court Cases 536 and also in the case
of Roopwanti -vs- State of Haryana and others reported in AIR
2023 SC 1199.
21. It is keeping in mind the above principles laid
down by the Hon’ble Apex Court, we proceed to analyse the
evidence placed by the prosecution in this matter.
22. The prosecution, in order to prove the alleged guilt
against accused has examined in all ten witness from PW.1
to PW.10.
23. PW.1-Afrozabanu, mother of victim has stated
that victim is her daughter, one Shafi Mohammed is her
20 Crl.A. NO.11/2018
husband. The accused was working in their flower stall
since three years from the date of alleged incident, her
other two children and her mother-in-law were in the
house. Victim-PW.3 is a deaf and dumb girl and as on the
date of alleged incident, she was aged about 16 years. The
victim for her daily activities has been completely
depending upon her mother i.e., PW.1. It is the evidence of
PW.1 that on 26.10.2015 afternoon, she went to a canal for
washing clothes and she returned at 8:00 p.m. As soon as
she came to her house, the victim did not have her dinner
and she was often going for attending her nature call.
Hence, she enquired the victim, but she did not reveal any
reasons. The victim continued the same activities for two
days, therefore, PW.1 saw the person of victim and noticed
a bite mark injury on the chest of the victim. Therefore, she
enquired the victim, but she did not reveal the names of
any person, but after 4-5 days, PW.1 by hand gestures
showed names of four to five suspected names, for which,
21 Crl.A. NO.11/2018
victim nodded her head as ‘no’, but while PW.1 showed by
hand gesture the name of accused, the victim nodded her
head as ‘yes’, who committed offence against her.
Therefore, on 31.10.2015, PW.1 lodged the complaint as
per Ex.P1. On the following day of the incident, the police
took the victim to the hospital for medical examination and
the police visited the scene of offence, they drew spot
panchanama as per Ex.P3, took the photograph as per
Ex.P2, enquired the witnesses and later took the victim to
the Court for recording statement under Section 164 Cr.P.C.
PW.1 was subjected to a detailed cross-examination from
the accused side. In her cross-examination, though several
attempts were made to shake the credibility of her evidence
given in her examination-in-chief, but the witness adhered
to her original version.
24. PW.2-Sadhikh Ali, a witness to spot panchanama-
Ex.P3, has stated that on 01.11.2015 at 10:00 a.m., the
Women Police, Davanagere came to the scene of
22 Crl.A. NO.11/2018
occurrence, where they drew spot panchanama in his
presence as per Ex.P3.
25. PW3- the victim was examined through PW.4, the
interpreter, through her signs and hand gestures before the
court that, PW.1 is her mother and accused was working in
flower stall of her father. She has given her evidence
through signs and hand gestures, she showed her finger
and kept in her mouth to a suggestion of a Special Public
Prosecutor through interpreter, as to what happened to her
by the accused. She also showed by signs that the accused
scratched with his nails and caused bite marks on her
chest. By her sign and gesture, she stated that on the day
of the incident, her mother PW.1 had been to canal for
washing of clothes. Her mother used to bathe her everyday.
Her mother used to help her while she wore clothes. Soon
after the incident, the victim told her mother about the act
committed by the accused.
23 Crl.A. NO.11/2018
PW.3 was subjected to cross examination by the
counsel for the accused. In her cross examination, she has
stated that she used to hear the words of her mother. She
denied that as on the date of the incident, her mother had
not been to canal for washing clothes and she was very
much present in the house. But, PW.3 the victim did not
answer to a suggestion as to number of persons who had
visited her house as on the date of the incident. She has
not answered the suggestion that she had no impediment
to inform her mother about the incident on the day of the
incident itself. She further maintained silence to a
suggestion that in her chief-examination, she has not
answered the questions posed by the Special Public
Prosecutor due to her inability to answer and thus her
mother answered all the questions on her behalf. PW.1 has
not answered to a question that, her mother has filed false
case against the accused, inspite of there no case being
made out against the accused.
24 Crl.A. NO.11/2018
26. PW.4-Sharadamma, the teacher of deaf and
dumb school i.e., Sri. Mouneshwari Deaf and Dumb School,
Davanagere has stated that she translated the statement of
the victim recorded before the Magistrate under Section
164 of Cr.P.C. as well as she translated the statement of
the victim before the Court.
27. PW.5-Sumiyabanu, the sister of PW.1 and Aunt of
victim and PW.8-Bibijan the grandmother of the victim have
reiterated the oral testimony of PW.1 and corroborates her
oral testimony. PWs.5 and 8 admit that they came to know
about the incident through PW.1.
28. It is asserted that PW.3 victim is a dumb witness.
Therefore, a duty is cast upon this Court to examine
whether the oral testimony of PW.3 is recorded as provided
under Section 119 of the Indian Evidence Act. If so, such
evidence recorded by the learned Special Judge can be
acted upon.
25 Crl.A. NO.11/2018
Section 119 of the Evidence Act reads, thus:
“119. Witness unable to communicate verbally.-A
witness who is unable to speak may give his evidence in
any other manner in which he can make it intelligible,
as by writing or by signs; but such writing must be
written and the signs made in open court, evidence so
given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate
verbally, the Court shall take the assistance of an
interpreter or a special educator in recording the
statement and such statement shall be videographed.”
29. The Court while recording the evidence of a dumb
witness, must record the signs as well as the interpretations
of the interpreter and then only it becomes admissible
under the Indian Evidence Act. Therefore, it has to be seen
whether the learned Special Judge recorded the evidence of
dumb witness PW.3 as stated above. The Court also should
see what is the evidence placed on record so as to sustain
conviction.
30. It is with this background, the testimonies of
PW.1, PW.5, PW.8 and the testimony of victim PW.3
coupled with medical evidence of PW.6 and PW.7 have to be
26 Crl.A. NO.11/2018
re-appreciated to find out whether the judgment of
acquittal of the accused is sustainable.
31. It is well settled principle of law that the evidence
has to be read as a whole. It is the function of the Court to
separate the grains from chaff. No hard and fast rule can be
laid down for appreciation of evidence. It is after all a
question of fact and each case has to be decided on facts as
they stand in that particular case. A duty is also cast upon
the Court to see that no person committing an offence
should go scot-free. It is with this background, the evidence
has to be scrutinized.
32. The evidence of PW.3-victim shows that she is
dumb and deaf witness. According to the victim, she used
to tell by making signs and hand gestures. She was
knowing only the words (amma…., abba….. and bayya……).
It is her evidence through signs and hand gestures that she
showed her finger and kept in mouth to the suggestion of
interpreter as to what happened to her by the accused. She
27 Crl.A. NO.11/2018
also showed by signs that on her chest, the accused
scratched with his nails and caused bite mark. The
interpreter has not stated anything with regard to the
sexual assault or penetrative sexual assault alleged to have
been made by the accused against the victim nor the
interpreter interprets in such a manner that the gestures
made by the victim by showing her finger in her mouth
means is penetrative sexual assault.
33. PWs.1, 5 and 8- the mother, aunt and
grandmother of the victim are the hear-say witnesses and
they have stated that soon after the incident, they came to
know about the incident through PW.1. PW.4-the
interpreter, has translated the statement of deaf and dumb
witness in the Court. She has stated on oath that she
interpreted the signs and hand gestures made by the
victim- PW.3. PW.4 has not at all stated on oath about the
ingredient of Section 4 of POCSO Act and Section 376 IPC.
28 Crl.A. NO.11/2018
Hence, the prosecution failed to elicit the requirement of
Section 4 of POCSO Act and Section 376 of IPC.
34. PW.9-Nagamma the PSI of Women Police Station,
Davanagere, received the complaint and registered the case
on 31.10.2015 and sent FIR-Ex.P10 to the Court. She sent
the victim for medical examination to Chigateri General
Hospital, Davanagere.
35. PW.10-Sanganatha, the Police Inspector has
stated that on 01.11.2015, he visited the scene of
occurrence, drew spot panchanama as per Ex.P3, arrested
the accused, sent the accused to Chigateri General Hospital,
Davanagere for medical examination. On 04.11.2015, he
sent the victim to the Court for recording statement of the
victim under Section 164 of Cr.P.C and he also recorded
statements of the other witnesses. On 17.11.2015, he
secured documents Exs.P6 to P9, FSL report, medical report
of the victim, medical report of the accused and dental
report of the victim. He secured the articles from the
29 Crl.A. NO.11/2018
Medical Officer, who collected those articles from the
accused and the victim and sent the same to Forensic
Science Laboratory for chemical examination. On
15.12.2015, he completed the investigation and filed the
charge sheet pending receipt of FSL report and final opinion
of the doctor. It is his further evidence that on 21.01.2016,
the Circle Police Inspector -Gajendrappa, received FSL
report and secured final opinion of the doctor and later
submitted the final opinion before the Court on 27.01.2016.
The evidence of PWs.9 and 10, who are the Investigating
Officers, is not of any consequences.
36. PW.6-Dr. Nagaveni S.K., in her evidence has
stated that she was working as an Eye Specialist at
Chigateri General Hospital, Davanagere. She examined the
victim on 31.10.2015, who was brought by Women Police,
Davanagere. On examination, she found the following
injures:-
1. Contusion over the lower part of the left breast.
30 Crl.A. NO.11/2018
2. Nail prick mark 2-3 over the left and right breast,
1/2 x 1cm, 1/2 x 1/2cms,
3. Greenish black colour patch over the left breast on
lateral aspect.
She further stated that there is no external injury over
vulva and hymen is intact. PW.6 has opined that except
injuries on chest of the victim, there are no other external
injuries on her person. As per the FSL report- ExP6, seminal
stains were not detected on item Nos.1,3, 4, 5, 6, 8, 9, 10,
11, 12 and 13. Skin tissue was not detected on item Nos.2
and 7. Foreign hairs were not detected in item Nos.1 and 8.
Based on clinical examination and FSL report, there is no
evidence to suggest the recent sexual intercourse. It is no
doubt true that PW.6 Doctor opined that in the
circumstances even in case of rape, hymen would not be
ruptured. But, in the present case, what we are concerned
is as to whether there are any symptoms of rape or any
penetration has taken place. It is clear from the evidence of
mother of the victim that the victim is aged about 15 years.
31 Crl.A. NO.11/2018
Even if assuming for a while that forcible penetrative sexual
assault had taken place on a girl, aged about 15 to 17
years, it is needless to say that there will be rupture of
vagina at least with some tear. The Doctor who examined
the victim PW.3, did not find any injury over the private
parts. Therefore, there could not have been any penetration
so as to hold that rape or any penetrative sexual assault
has taken place against the victim. If some injuries or
lacerations, abrasions or swelling were found over the
vaginal portion, it could have established that there is
penetration and that a forcible sexual intercourse had taken
place. But, there is no such acceptable evidence available
on record. Therefore, only on the ground that the hymen
may or may not be ruptured itself, that by itself, is not
sufficient in the present case to hold that the penetrative
sexual assault has taken place.
37. PW.7-Dr. L. Ashok, Dentist, Bapuji Dental
Hospital, Davanagere, in his evidence, has stated that on
32 Crl.A. NO.11/2018
09.11.2015, the doctors of CG Hospital, Davanagere sent
the victim to him for ascertaining her age. Hence, he
examined the victim and found that her third molar tooth
was not developed. The Doctor followed various procedures
as contemplated under the Standard literature in the
textbook, titled, “Wheeler’s Dental Anatomy and
Physiology and Occlusion 9th edition, wherein it is held
that complete root formation of 35, 45 occurs at 13-14
years of age and the complete root formation of 17 and 27
occurs at 14-15 years of age. The 1/4th root formation of
38, 48 occur at 15.2 years of age. According to standard
literature, the age of the victim was estimated to be 15
years (+)/(-) 2 years. Hence, he was of the opinion that the
victim was aged about 15 years (+) or (-) 2 years. Hence,
he issued his final opinion as per Ex.P9. It shows that as on
the date of the incident, the victim was aged about 15
years + or – two years, which comes to 17 years, hence,
33 Crl.A. NO.11/2018
PW.3 victim has to be considered as a child as defined
under section 2(d) of POCSO Act, 2012.
38. On perusal of the entire case of the prosecution,
the accused has denied all the allegations made against him
with regard to the alleged act of penetrative sexual assault,
voluntarily caused hurt on the victim(PW-3) and criminal
intimidation made to her, as contended by the prosecution.
The defence of the accused is that, a false case has been
foisted against him and he did not commit any such act. His
further defence was, father of victim was due to pay daily
wages and as the accused started to work in flower shop of
uncle of victim, this case has been foisted.
39. On the contrary, on perusal of the evidence of
PW.3, the victim, PW.4-Interpreter, PW.1-mother of victim,
PW.5-Aunt of victim and PW.8- Grand mother of victim,
have in categorical terms have stated that the accused
entered the house of victim, the accused touched her
private organ, thereby sexually assaulted the victim, made
34 Crl.A. NO.11/2018
nails marks on her chest and made bite marks with teeth
on her chest. He also made criminal intimidation to finish
her, if she reveals said fact to anybody. However, nothing
worth is elicited by the accused to disbelieve the evidence
of these witnesses with regard to the accused committing
act of sexual assault by touching private organ of the
victim-PW.3, caused injury on her chest with his nail and
teeth. The accused has not elicited any ill-will as suggested
by the defence between the accused and victim or her
family members. The accused merely relied upon some
minor contradictions appeared in the evidence of PW.1, 3, 5
and 8 to disbelieve their evidence, but, those contradictions
will not go to the very root of the case.
40. From the perusal of the prosecution case, it
appears that, victim was a minor girl, aged about 17 years,
as per the report of Dentist-Ex-P9. The accused has not
disputed the contents of Ex-P9 and it was issued by
competent authority. Under such circumstances, the
35 Crl.A. NO.11/2018
learned Addl. SPP vehemently argued and submitted that,
all the prosecution witnesses have supported the case of
prosecution and the fact the victim was minor then and
therefore the Special court ought to have drawn the
presumption available under Section 29 of the POCSO
Act,2012.
41. Section 29 of the POCSO Act, 2012 provides for
presumption as to certain offences under Sections 3, 5, 7
and 9 of the Act is material in the realm of assessment of
evidence as the accused is expected to effectively rebut this
presumption in case main ingredients are established by the
prosecution. Section 29 of POSCO Act, 2012 reads as
follows:-
“Section 29. Presumption as to certain offences.
-Where a person is prosecuted for committing or
abetting or attempting to commit any offence under
sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed
or abetted or attempted to commit the offence, as the
case may be, unless the contrary is proved.”
36 Crl.A. NO.11/2018
42. In the present case, the medical evidence being
negative as to penetrative assault on the victim, having not
noticed any injury over the private part and there being no
penetration, the evidence of PWs.1 and 3 to the effect that
the accused committed penetrative sexual assault on the
victim, cannot be accepted. Further, the victim and
interpreter have not stated on oath that the accused
committed rape or penetrative sexual assault against the
victim. They merely stated that accused touched the private
parts of the victim, made bite marks on the chest and
scratched on the breast with nails. This part of the evidence
is corroborated by the medical evidence.
43. We have perused the entire evidence on record
and considered the arguments. The evidence of PW.3 victim
shows that she being a girl of tender age and deaf and
dumb, gave evidence in her own signs. Her evidence clearly
discloses as to how the accused committed sexual assault
on her and caused injury on her breast. She revealed the
37 Crl.A. NO.11/2018
incident before her mother, grandmother and aunt as to
how she was subjected to sexual assault by the accused.
The victim-PW.3 has stated in her examination-in-chief that
accused committed sexual assault, but, the case of
prosecution is that accused committed penetrative sexual
assault on the victim. Further, the victim-PW3 in her
statement before the Magistrate recorded under Section
164 of the Cr.P.C., has stated that the accused caused
injury on her breast, she was subjected to sexual assault
and the accused had committed penetrative sexual assault
on her. However, the evidence of the victim before the
Court and the evidence of Medical officer is not
corroborated with the statement made by the victim under
section 164 Cr.P.C. The statement made under section 164
Cr.P.C. is only a corroborative piece of evidence and not a
substantive piece of evidence. Therefore, if the testimony of
victim is again subjected to scrutiny, it appears that she
has given a vivid account of the incident. She has clearly
38 Crl.A. NO.11/2018
showed through signs as to how the accused abused her
sexually. In Ex.P4-the statement given by the victim before
the Magistrate under Section 164 of Cr.P.C, she has clearly
stated about the act of accused of having committed
penetrative sexual assault on the victim, but, before the
Court, she has not revealed the fact that the accused
committed penetrative sexual assault on her. Even the
prosecution has not bothered to pose question to the victim
about the omissions made by the victim as to the
penetrative sexual assault made on her.
44. There are minor discrepancies in the statement
made by the victim under Section 164 of Cr.P.C and the
evidence tendered by the victim-PW3. The thrust of her
evidence shows that the accused committed sexual assault
on the victim. In such circumstances, the evidence of the
victim and the medical evidence would establish the charge
of sexual assault and not penetrative sexual assault. In
order to corroborate the oral testimony of the victim, PW6
39 Crl.A. NO.11/2018
doctor who examined the victim has stated that the victim
was not subjected to any penetrative sexual assault and
there were no external injuries all over the body except on
the breast, hymen was not torn and there was no evidence
of recent sexual intercourse on the victim. In the light of
the medical evidence and the testimony of the victim, the
prosecution has been able to prove the ingredient of
Sections 7 and 8 of POCSO Act, which read as under:
Section 7. Sexual Assault- Whoever, with
sexual intent touches the vagina, penis, anus or
breast of the child or makes the child touch the
vagina, penis, anus or breast of such person or
any other person, or does any other act with
sexual intent which involves physical contact
without penetration is said to commit sexual
assault.
Section 8. Punishment for sexual assault-
Whoever, commits sexual assault, shall be
punished with imprisonment of either description
for a term which shall not be less than three
years but which may extend to five years, and
shall also be liable to fine.”
40 Crl.A. NO.11/2018
45. The question which would however arise for our
consideration is as to whether the charges framed against
the accused under Sections 376 and 506 of IPC and Section
4 of POCSO Act would be justified and as to whether the
case would qualify to be one of penetrative sexual assault
or sexual assault.
46. On this aspect, the evidence of PW.3 victim and
PW.6 doctor does not establish the same. So far as the
evidence of PWs.1, 5 and 8, they are hearsay witnesses,
who are none other the, mother, aunt and grandmother of
the victim. The evidence of PW.3-the victim is not
categorical, in as much as, the victim has alleged that the
accused committed penetrative sexual assault. In fact the
very conclusion reached by the Special Court that the
allegation of sexual assault has not been established by the
prosecution against the accused, is not in accordance with
law.
41 Crl.A. NO.11/2018
47. In that circumstances, the charge of rape as
contemplated under Section 376 IPC and penetrative sexual
assault as contemplated under Section 4 of POCSO Act have
not been established with convincing evidence. However,
having already noted that the incident of attempt to rape or
sexual assault alleged to have been established, it would be
a case to convict the accused under Section 8 of POCSO
Act.
48. So far as Section 324 of IPC, it is evident that
PW.1 the mother of the victim, PW.3-victim and PW.6
doctor in categorical terms have stated that there is bite
mark on the chest of the victim, which shows that the
accused caused injuries on the breast of the victim, which
would attract Section 324 of IPC.
49. Even though the prosecution was able to place
sufficient materials to prove the alleged guilt against
accused with regard to Section 8 of POCSO Act and Section
324 of IPC, however, the Special Court has erred in
42 Crl.A. NO.11/2018
appreciating the materials placed before it in proper
prospective. The Special Court mainly relied upon the oral
testimonies of PWs.1, 3 to 5, and PW.8 and particularly
based on medical evidence, proceeded to acquit the
accused and held that it was not an act of rape.
50. Furthermore, the learned Special Court adopted
its own methodology of calculating the age of the victim
girl, based upon the statement made by her mother i.e.,
PW.1. Hence, the Special Court has not drawn presumption
under Section 29 of POCSO Act in respect of Section 8 of
the Act. It is these reasonings given by the Sessions
Judge’s Court, which is now proved to be not proper
reasonings, which has been relied on to pronounce the
impugned judgment of acquittal against the
accused/respondent No.1. Since the finding of the Special
Court is now proved to be erroneous and since, the
prosecution has proved the alleged guilt of the accused for
the offence under Section 8 of POCSO Act and Section 324
43 Crl.A. NO.11/2018
of IPC beyond reasonable doubt, the impugned judgment
passed by the Special Court warrants interference at the
hands of this Court and the criminal appeal deserves to be
partly allowed. Accordingly, we proceed to pass the
following:
ORDER
The Criminal Appeal stands partly allowed.
The judgment in Sessions Case No.11/2016 dated
05.05.2017 passed by II Additional District and Sessions
Judge and Special Judge, Davangere, acquitting the
accused of the offences punishable under Sections 376, 324
and 506 of IPC and Sections 4 and 8 of POCSO Act, stands
modified as under:
The accused is acquitted of the offences punishable
under Section 4 of POCSO Act and Sections 376 and 506
IPC.
44 Crl.A. NO.11/2018
The accused is convicted for the offences punishable
under Section 8 of POCSO Act and Section 324 of IPC.
Call to hear on quantum of sentence.
Sd/-
JUDGE
Sd/-
JUDGE
*MN/-
45 Crl.A. NO.11/2018
Dr.HBPSJ VNTJ:-
02.04.2024
HEARING ON SENTENCE
Heard the learned counsel from both side on
sentence part.
The learned counsel for the appellant/State
submitted that the matter is of the year 2015 and
the accused has committed grave offence under
section POCSO Act, 2012, that too, against the
deaf-and-dumb girl and hence, he prayed for
awarding maximum sentence for the offences for
which the respondent/accused is convicted.
The learned counsel for the
respondent/accused submitted that the accused is
a coolie and he has to look after his parents. The
accused hails from a respectable family and
hence prays for taking a lenient view.
It is the sentencing policy that the sentence
ordered should not be either exorbitant nor for
name sake for the proven guilt. It must be
46 Crl.A. NO.11/2018
proportionate to the guilt for which the accused is
found guilty of.
ORDER ON SENTENCE
[1] The accused – Shaukath Ali, son of
Shekh Yousuf, resident of H.K.R Circle,
Davanagere-570 001, is sentenced to undergo
simple imprisonment for a period of three years
and to pay a fine of `5,000/-(Rupees Five
Thousand only), in case of default of payment of
fine, to under simple imprisonment for a further
period of six months, for the offence punishable
under Section 8 of The Protection of Children
from Sexual Offences Act, 2012.
[2] The accused – Shaukath Ali, is further
sentenced to undergo simple imprisonment for a
period of two years and to pay a fine of `3,000/-
(Rupees Three Thousand only), in case of default
of payment of fine, to under simple imprisonment
for a further period of four months, for the
offence punishable under Section 324 of the
Indian Penal Code, 1860.
47 Crl.A. NO.11/2018
[3] The accused shall surrender before the
learned Special Judge’s Court within fortyfive (45)
days from today and serve the sentence as
ordered above by this Court and both the
sentences shall run concurrently.
[4]Accused is entitled for set of under
section 428 Cr.P.C. for the period of judicial
custody already undergone by him.
[5] Out of the fine amount paid by the
accused, a sum of `7000/- be paid to the victim
as compensation to the victim under Section
357A of Code of Criminal Procedure, 1973( Victim
Compensation Scheme).
[6] The remaining sum of `1,000/- shall go
to the State.
[7] A free copy of this judgment be
furnished to the accused immediately by the
Registry.
The Court, while acknowledging the services rendered
by the learned Amicus Curiae for respondent No.2-
48 Crl.A. NO.11/2018
Smt. Archana K.M., recommends honorarium of a sum of
not less than `6,000/- payable to her by the Registry.
Registry to transmit a copy of this judgment along
with Special Court records to the concerned Special Judge’s
Court immediately, for doing needful in the matter.
Sd/-
JUDGE
Sd/-
JUDGE
*MN/-
