IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.200162/2017
Between:
Sri Manik
S/o Ismailappa Togarkhed
Aged about 40 years, Occ: Coolie
R/o Hilapur Village, Bidar – 585 201
… Appellant
(By Sri M. Sudhakar Rao, Advocate)
And:
The State of Karnataka
Through the police of
Hallikhed-B Police Station
Represented by learned
State Public Prosecutor
High Court Building
Kalaburagi – 585 103
… Respondent
(By Sri Gururaj Hasilkar, HCGP)
This criminal appeal is filed under Section 374(2) of
the Code of Criminal Procedure, praying to set aside the
judgment of conviction dated 08.11.2017 and order of
sentence dated 16.11.2017 passed by the Special Judge and
Additional District & Sessions Judge at Bidar in Special Case
2
No.45/2016, convicting the appellant/accused for the
offences punishable under Sections 376, 511, 354-A, 506 of
IPC and Sections 4 and 18 of the POCSO Act.
This appeal coming on for further hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is filed under Section 374(2) of the
Code of Criminal Procedure, challenging the judgment
of conviction dated 08.11.2017 and order on sentence
dated 16.11.2017 passed by the Special Judge and
Additional District & Sessions Judge at Bidar in Special
Case No.45/2016, thereby convicting the appellant for
the offences punishable under Sections 376, 511,
354-A, 506 of IPC and Sections 4 and 18 of the
Protection of Children from Sexual Offences Act, 2012
(for short ‘POCSO Act’), sentencing him to undergo
simple imprisonment for five years with fine of
Rs.5,000/- with default clause of simple imprisonment
for two months for the offence punishable under Section
376 R/w Section 511 of IPC. Further, for the offence
punishable under Section 354-A of IPC, the appellant
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was sentenced to undergo simple imprisonment for two
years and to pay fine of Rs.2,000/- with default clause
of simple imprisonment for two months. Further, the
appellant was sentenced to undergo simple
imprisonment for three years and to pay fine of
Rs.3,000/- with default clause of simple imprisonment
for two months for the offence punishable under Section
506 of IPC. Further, for the offence punishable under
Section 4 r/w Section 18 of the POCSO Act, the
appellant was sentenced to undergo simple
imprisonment for five years and to pay fine of
Rs.5,000/- with default clause of simple imprisonment
for two months and it was ordered that the above
sentences shall run concurrently.
2. Brief facts of the case of the prosecution are
that, PW.1 is minor victim; she was residing along with
her parents; she was aged 16 years; she is illiterate and
used to assist her parents in agricultural work and the
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appellant/accused also from the same village. When
this being the fact, on 12.01.2016 at night about 8.30
p.m., the PW.1 had been to bore well situated near road
to fetch the water and while she was drawing water from
the bore well, the appellant came there after attending
his natures call and on the pretext that he would lift the
pot has gagged her mouth and dragged the PW.1-victim
nearby ditch and attempted to commit penetrative
sexual assault and rape, but the PW.1 had resisted and
objected with all her force and kicked the appellant.
Thus, in this way, she escaped from the clutches of the
appellant and then ran towards her house and told this
fact to her mother-PW.2 and since it was night time, the
PW.1 has lodged the complaint on the next day at 3.00
p.m. as per Ex.P1. Accordingly, a case was registered in
Crime No.06/2016 for the offences punishable under
Sections 376, 511, 506 of IPC and Sections 4 and 18 of
the POCSO Act against the appellant.
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3. After investigation, the Investigating Officer
has filed the charge sheet before the Special Court
against the appellant. On filing of the charge sheet, the
learned Special Judge has taken cognizance of the
offences under Section 190 of Cr.P.C. and supplied the
copy of the charge sheet to the appellant as required
under Section 207 of Cr.P.C. and has secured the
presence of the accused and after hearing both sides,
has framed charge against the appellant for the offences
punishable under Sections 376, 511, 506, 354-A of IPC
and Sections 4 r/w Section 18 of POCSO Act. After
being read-over and explained the charge to the
appellant-accused, he pleaded not guilty and therefore
claims to be tried. Accordingly, by recording his plea,
the Special Judge has proceeded with the trial.
4. During the trial, in order to prove its case,
the prosecution has got examined 14 witnesses as
PWs.1 to 14 and got marked 15 documents as Exs.P1 to
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P15 and also got marked 14 Material Objects as M.Os.1
to 14. After completion of prosecution evidence, the
accused was examined under Section 313 of Cr.P.C.
and he denied all the incriminating circumstances and
evidences revealed against him and it is totally denial of
the case by the appellant. However, the appellant did
not chose to lead any defence evidence.
5. The Special Judge, after evaluating and
analyzing the evidence on record has convicted the
appellant for the offences punishable under Sections
376, 511, 354-A, 506 of IPC and Sections 4 and 18 of
the POCSO Act and imposed the sentence as stated
above.
6. Being aggrieved by the judgment of
conviction and order of sentence, the accused has
preferred this appeal urging various grounds in the
appeal memorandum and also the learned counsel for
the appellant has argued that the evidences of PW.1-
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victim and her mother-PW.2 do not inspire confidence of
the Court with reference to their cross-examination.
Further submitted that the appellant has been falsely
implicated in the case at the behest of some other
person which is also revealed in the cross-examination.
Further submitted that PW.1 is not minor below the age
of 18 years and the Investigating Officer has not
collected any evidence to show that PW.1 is minor below
the age of 18 years and absolutely there are no records
produced by the prosecution to show that PW.1 is minor
below the age of 18 years. Further submitted that
except the evidence of PWs.1 and 2, there are no
evidences to hold the appellant as guilty of the alleged
offence and when the evidence of PWs.1 and 2 are taken
away, the prosecution does not have any case to convict
the appellant. Therefore, submitted that the evidence of
PWs.1 and 2 do not inspire confidence of the Court and
found to be unbelievable. Therefore, the prosecution
8
does not have any evidence and hence the appeal is
liable to be allowed, acquitting the appellant.
7. Further, the learned counsel for the
appellant submitted that the statement of PW.1 ought to
have been recorded by the woman police officer not
below the rank of sub-inspector, but in the present
case, the woman Police Constable has recorded the
statement. Therefore, submitted it is in violation of
Section 24 of the POCSO Act. Further submitted that
the Juvenile Justice Board or the Special Court had not
determined the age of PW.1-victim. Therefore, there are
no convincing evidences available to show that PW.1 is
minor below the age of 18 years. Further submitted
that there is 18 hours delay in lodging the complaint
and registration of FIR from the time of alleged incident
and therefore in the absence of explanation to this
delay, there is manipulation occurred while lodging the
complaint before the police. Therefore, registration of
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the prosecution case itself is doubtful. Hence, prays for
acquittal of the appellant.
8. Further the learned counsel submitted that
upon considering the scene of offence, it is highly
improbable that such alleged incident was occurred,
since as per the evidence of PWs.1 and 2, in and around
the bore well, there are several houses and villagers
were there and there is electric pole and the people are
walking in and around the said bore well and the
electric pole. Therefore, with this geographical area as
revealed from the evidence of PWs.1 and 2, it is not
possible for the appellant to do the alleged crime.
Therefore, submitted that in this regard PWs.13 and 14,
Investigating Officers have not prepared sketch of place
of occurrence. If the sketch is prepared and submitted
before the Court, then the entire geographical location
of the place of occurrence would have been revealed
before the Court, but PWs.13 and 14 have not prepared
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any sketch for the reasons best known to them. Hence,
the prosecution case is highly rendered unbelievable.
Hence, prays for acquittal of the appellant.
9. Further the learned counsel submitted that
two other important witnesses who are PWs.5 and 6
have not stated that the appellant had tried to ravish
the PW.1. Therefore, only from the evidence of PW.1,
conviction cannot be made and furthermore the
evidence of PW.1 has been shaken in the course of
cross-examination while saying that the appellant has
committed the alleged offence. Therefore, when the
evidence of PW.1 does not inspire confidence of the
Court, then the evidence of PW.2 is mere a res gestae
evidence is washed away when the evidence of PW.1 is
found to be unbelievable. Therefore submitted that by
taking the evidences in all with cumulative effect, the
prosecution case is found to be highly doubtful. Hence,
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prays to allow the appeal and to acquit the appellant-
accused against the charges levelled against him.
10. Per contra, learned High Court Government
Pleader appearing for the respondent-State submitted
that the evidence of PWs.1 and 2 inspire confidence of
the Court and their evidence is to be appreciated in
their background, considering the factors that PWs.1
and 2 are illiterate rustic women and residing in the
village. Therefore, if any contradictions are revealed,
that cannot be given much weight so far as to negate
the prosecution case. Therefore, irrespective of this, the
evidence of PWs.1 and 2 are to be appreciated. Further
submitted that in the absence of any other evidence by
the defence even by way of preponderance of
probabilities that why the appellant is fixed falsely in
the case and in the absence of such explanation, the
evidence of PWs.1 and 2 cannot be disbelieved. Further
submitted that from the evidence of PW.7-Doctor, who
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had examined the victim, it is revealed that PW.1 is
below the age 18 years. Since the PW.1 is an illiterate
girl, quite naturally she does not have any Date of Birth
Certificate from the school. Therefore, medical opinion
was sought for and it was revealed that the PW.1 is
found to be below the age of 18 years at the time of
occurrence of offence. Further submitted that from the
other evidence, the prosecution is able to prove the guilt
of the appellant. Accordingly, the Special Court has
rightly convicted the appellant. Further submitted that
even though there is delay of 18 hours in lodging the
complaint and registration of FIR, it is quite natural
that the alleged incident was occurred on 12.01.2016 in
the night at 8.30 p.m. and PWs.1 and 2 are women and
therefore, the PW.1 was subjected to medical
examination and after that on the next day at 3.00 p.m.,
the PW.1 has lodged the complaint. Therefore,
considering all the circumstances, it cannot be said that
there is delay in lodging the compliant and registration
13
of FIR. Therefore, submitted that the genesis of the
crime as per the complaint-Ex.P1 is trustworthy.
Hence, the Special Court has rightly appreciated the
evidence on record and convicted the appellant, which
needs no interference by this Court. Hence, he prays to
dismiss the appeal.
11. In the present case, for proving the guilt of
the appellant, the witnesses available to the prosecution
are only two witnesses, who are PWs.1 and 2. PW.1 is
the victim girl and PW.2 is the mother of PW.1 and the
other witnesses are formal in nature. Therefore, before
appreciating the evidence of PWs.1 and 2, the evidence
of PW.7-Doctor, who is stated to have examined the
victim-PW.1 is considered at this stage for ascertaining
what was the age of the PW.1 at the time of commission
of the offence.
12. PW.7-Doctor has stated in his evidence that
he had examined PW.1, as the PW.1 was produced by
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the PW.9 and as per the ossification test and X-ray
report examination, PW.7 was of the opinion that the
victim was minor below the age of 18 years. PW.1 is an
illiterate girl and quite naturally it cannot be expected
her Date of Birth Certificate from the school authorities.
It is revealed from the evidence that husband of PW.2
and father of PW.1 is mentally insane person.
Therefore, quite naturally there cannot be chances of
getting registration of the date of birth of PW.1 before
the authorities. Hence, under these circumstances, the
Investigating Officer had made arrangement to produce
the victim before the PW.7-Doctor to ascertain the age of
PW.1 and accordingly PW.7 has given the opinion that
the PW.1 was below the age of 18 years. For this, there
is no cross-examination by the defence side regarding
disputing the age of the PW.1 in the course of
examination-in-chief. Mere putting suggestion in the
cross-examination regarding the date and when the said
suggestion is denied, then it carries no significance
15
regarding the say that PW.1 is major. Therefore, from
the evidence as discussed above, it is proved that PW.1
was below the age of 18 years. Therefore, it is proved
that PW.1 is child as per Section 2(d) of the POCSO Act.
13. PW.1 has stated in her evidence that she
went to bore well for fetching water and at that time the
appellant was coming after attending his natures call
and on the pretext that he would lift the pot so as to put
on the head of the PW.1, the appellant had dragged the
PW.1 to nearby ditch and tried to stripping off of her
clothes and also tried to commit the rape, but she had
resisted and kicked the appellant and thus, in this way,
she had escaped from the clutches of the appellant and
ran away from the place towards her house and
narrated this incident to her mother- PW.2. Then, PW.1
has stated regarding the spot panchanama conducted
by the police. Before analyzing this evidence with
reference to cross-examination, now it is worthwhile to
16
consider the evidence of PW.2, who is the mother of
PW.1 regarding what she has stated in her examination-
in-chief.
14. PW.2 has stated that her husband is
mentally insane person and she is doing coolie work
and further she stated that about one year and two
months before, in the night at 8.30 p.m., the PW.1 went
to bore well for fetching water and came after half an
hour with crying and weeping and upon making
enquiry, she told that the appellant had committed the
offence as described above. Therefore, in this regard,
the evidence of PW.2 is to be considered as relevant on
the principle of res gestae as per Section 6 of the Indian
Evidence Act. PW.2 is not an eyewitness to the incident,
but immediately within a period of half an hour, the
PW.1 had told this incident to PW.2. Therefore, under
these circumstances, the evidence of PW.2 is found to
be relevant on the principle of res restae as per
17
Section 6 of the Indian Evidence Act. But, whether the
evidence of PW.2 inspires confidence of the Court is to
be tested with the cross-examination. Then, upon
considering the cross-examination of both PWs.1 and 2,
it is revealed that there were 7 to 8 houses in and
around the bore well and villagers were sitting in the
courtyard of their houses and also there was electric
pole and there was light and also the people were roving
in and around the electric pole. Further it is revealed in
the cross-examination of PW.1 that she fell in the ditch,
as she was slipped while she was carrying plastic pot.
Further, in the cross-examination of PW.1 it is revealed
that the grand father of PW.1 and the appellant were
working under the employment of one Shivraj Moolage
and on the date of incident, the appellant and the grand
father of PW.1 have worked till night 10.00 p.m. in his
land.
18
15. Therefore, upon considering the cross-
examination as revealed, the learned counsel for the
appellant submitted that what was deposed by the PW.1
in her examination-in-chief is washed away and
therefore submitted that the appellant has not
committed the alleged offence and the PW.1 herself was
slipped into the ditch when she was carrying water filled
pot. Therefore, in this way, the incident has occurred,
but the appellant has been falsely fixed into the case.
Further, the learned counsel for the appellant argued
that the PW.14 – Investigating Officer had not seized the
said plastic pot from the place of incident. Therefore,
submitted this is one of the important circumstance
negating the prosecution case. He further argued that
there were 7 to 8 houses situated in and around the
bore well and the electric pole and there was light and
also the people were roving near the electric pole. Then,
it was not possible for the appellant to attempt to ravish
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the PW.1. Therefore, submitted that in this regard the
prosecution case is found to be false.
16. Considering the evidence in the
examination-in-chief and cross-examination as
discussed above, in the light of the argument canvassed
by the learned High Court Government Pleader, the
evidence of PWs.1 and 2 is to be appreciated in their
background of living condition. Both PWs.1 and 2 are
illiterate and residing in the village. PW.1 is a rustic girl
and PW.2 is a rustic woman. Therefore, it cannot be
expected as if the evidence is to be given by an educated
woman. There is always difference between the
appreciation of evidence of two women, one is illiterate,
rustic and residing in the village and another one is
educated woman residing in town area or city.
Therefore, in this background the evidence of PWs.1 and
2 is to be appreciated and also having in mind the fact
that what was the necessity for PWs.1 and 2 to fix the
20
appellant in a false case at the cost of their chastity and
reputation. Therefore, when the PW.1 had categorically
deposed that the appellant has dragged her into ditch
and tried to lift the nightly and at that time the PW.1
had kicked the appellant and escaped from his clutches
and then ran away towards her house, this evidence is
considered along with the cross-examination that the
PW.1 had fallen in the ditch due to the slip when she
was carrying water filled pot, but this element of cross-
examination do not negate the evidence of PW.1
regarding the alleged offence committed by the appellant
on her.
17. The PW.1 being a child below the age of 18
years, it would be highly improbable that putting her
reputation and chastity has fixed the appellant into the
case by making false allegations against the appellant.
In this regard, there is no defence by the appellant why
the appellant is tried to fix in a false case by the PWs.1
21
and 2. Just because a suggestion is made that at the
behest of PW.4 a false case is filed, but the said
suggestion is denied and in this regard no probable
evidence by the defence or probable defence on behalf of
the accused is available for what reason PWs.1 and 2
have fixed the appellant in false case. Therefore, upon
considering and analysing the entire evidence on record,
the evidence of PW.1 that what she has stated in her
examination-in-chief inspires confidence of the court.
Likewise, upon considering the evidence of PW.2 testing
with cross-examination, the evidence of PW.1 is
corroborated by the evidence of PW.2.
18. In this regard, upon considering the evidence
revealed in the course of cross-examination that there
are 7-8 houses situated near the borewell and also there
was electric pole and there was electric supply on that
night but the place of incident is village. Even though
PW.14- Investigating Officer had not prepared sketch of
place of occurrence, but, it is just and mere minor lapse
22
on the part of PW.14–Investigating Officer in not
preparing sketch. But in spite of these lapses, the
evidence of PWs.1 and 2 inspires confidence of the court
as they have deposed regarding the alleged offences
committed by the appellant as against the minor girl
(PW.1). In that background the evidence of PWs.1 and 2
to be considered to the effect that they are illiterate,
rustic and coolie woman residing in the village,
therefore their evidence cannot be expected in educated
manner. Even in the absence of corroboration from the
evidence of PWs.5 and 6, the evidence of PWs.1 and 2
inspires confidence of the court. Therefore, prima facie
PWs.1 and 2 what they have deposed in examination-in-
chief is found to be trustworthy and believable.
19. The PW.1 had stated that she has produced
before the Judge for recording her statement. Here as
per the meaning of PW.1, the Judge is learned Judicial
Magistrate First Class and PW.11 is the learned
Magistrate and she has deposed that PW.1 was
23
produced before her and PW.1 has given statement
under Section 164(5) of Cr.P.C., as it would be
construed as recording of statement under Section 25 of
the Protection of Children from Sexual Offences Act,
2012 (POCSO Act). Therefore, at very initial point of
time PW.1 has given statement before the learned
Magistrate as per Ex.P.2 before PW.11. Even statement
recorded under Section 164(5) of Cr.P.C that the child
can be recorded as substantive evidence and it cannot
be used for the purpose of contradictions and omissions
as per Sections 145 and 157 of Indian Evidence Act
respectively but there is no much impeachment on the
said aspect as recording the statement of PW.1 as per
Section 164 (5) of Cr.P.C.
20. PWs.3 and 4 are the spot panch witnesses
and seizure panch witnesses and their role is minor in
nature. PW.12 is the Engineer of KPTCL who has stated
that on the date and time of the alleged incident there
was electric supply and line in the electric pole was
24
going on. PWs.13 and 14 are the Investigating Officers
who have conducted investigation and filed charge
sheet.
21. Therefore upon considering the evidence of
the above said witnesses much particularly the evidence
of PWs.1 and 2 and PW.2 is a witness as res gestae and
therefore the exact nature of evidence is to be
appreciated from the deposition of PW.1. Upon
considering the evidence of PW.1, the act of the
appellant at the most is proved to be sexual assault
coming within the definition of Section 7 of the POCSO
Act as well as Section 354-B of IPC. It is the allegation
against the appellant that the appellant has dragged the
PW.1 into ditch by gagging her mouth and in the
attempt of stripping up of cloth at that moment the
PW.1 had escaped from the clutches of the appellant.
Therefore, in this regard, it is worthwhile to refer the
definition of Section 354-B of IPC and Section 7 of the
POCSO Act.
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22. Section 354-B of IPC, is extracted as below :-
“354-B. Assault or use of criminal force
to woman with intent to disrobe.- Any man who
assaults or uses criminal force to any woman or
abets such act with the intention of disrobing or
compelling her to be naked, shall be punished
with imprisonment of either description for a term
which shall not be less than three years but which
may extend to seven years, and shall also be liable
to fine.”
Section 7 of POCSO Act, is extracted as below :-
“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.”
23. Therefore, the offence described by PW.1 is
having committed by the appellant against her is will is
considered, the ingredients of Sections 7 of the POCSO
26
Act and Section 354-B of Cr.P.C are attracted in the
present case and accordingly proved. But the Special
Court has convicted the appellant for the offence
punishable under Section 376 r/w sec.511 of IPC and
under Section 4 r/w sec.18 of the POCSO Act. As per
Section 42 of the POCSO Act, there is alternate
punishment prescribed and upon proving of the offence
either the accused can be convicted under the
provisions of Indian Penal Code or under the POCSO
Act and whichever the punishment is determined in
degree under that provision the accused is liable to be
convicted but not both under, because the word used in
Section 42 of the POCSO Act is “or under”. Therefore,
under these circumstances, either the appellant be
convicted for the offence punishable under Section 376
r/w sec. 511 of IPC or under Section 4 r/w sec.18 of
POCSO Act but not both under. But in the present case
from the evidence of PW.2, it is revealed that neither the
offence punishable under Section 376 r/w sec. 511 of
27
IPC nor under Section 4 r/w sec.18 of the POCSO Act is
proved but at the most the offence under Section 7 of
the POCSO Act and under Section 354-B of IPC are
proved.
24. Furthermore, there is no evidence that the
appellant criminally intimidated either PW.1 or PW.2 so
as to attract the offence under Section 506 of IPC.
Therefore, from the evidence of PW.1 as well as PW.2, it
is not proved that the appellant had criminally
intimidated PW.1 so as to attract the offence under
Section 506 of IPC. In the present case there is no
evidence from the prosecution that the appellant is
liable to be convicted for the offence punishable under
Section 506 of IPC.
25. Therefore, under these circumstances, upon
considering the evidences on record with cumulative
effect as above discussed, the appellant is liable to be
convicted for the offence punishable under Section 7 of
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the POCSO Act and also under Section 354-B of IPC but
not under Section 376 r/w sec. 511 of IPC and under
Section 4 r/w sec.18 of POCSO Act.
26. Section 29 of the POCSO Act stipulates
regarding presumption as to certain offences. For ready
reference, Section 29 of the POCSO Act is extracted as
under;
“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.”
27. Section 30 of the POCSO Act stipulates
regarding presumption regarding culpable mental State
which reads as follows;
“30. Presumption of culpable
mental state.1(1) In any prosecution for
any offence under this Act which
requires a culpable mental state on the
29
part of the accused, the Special Court
shall presume the existence of such
mental state but it shall be a defence
for the accused to prove the fact that
he had no such mental state with
respect to the act charges as an offence
in that prosecution.
(2) For the purpose of this
section, a fact is said to be proved only
when the Special Court believes it to
exist beyond reasonable doubt and not
merely when its existence is
established by a preponderance of
probability.
Explanation.- In this section,
“culpable mental state” includes
intention, motive, knowledge of a fact
and the belief in, or reason to believe, a
fact”
28. Therefore, as per Section 29 of the POCSO
Act, a presumption can be raised so far as commission
of offences under Section 3, 5, 7 & 9 of the POCSO Act
and the Special Court shall presume that such person
has committed or abetted or attempted to commit the
offence unless the contrary is proved. In the present
case, the special Court has not discussed anything
30
about this legal provision as enunciated under the
provisions of the POCSO Act.
29. Upon considering the factual matrix involved
in the present case, a presumption can be raised that
the accused has committed the offence alleged, this
presumption can be raised after the facts in issue are
proved by the prosecution as discussed above. There is
no straightaway jacket formula to raise the
presumption, but the prosecution has to establish the
fact in issue that such and such offence has been
committed, then presumption can be raised.
Accordingly, the prosecution in the present has
established the fact that the appellant has committed
the offence. If the accused is able to rebut presumption
by way of placing probable evidence that is sufficient to
say that presumption is successfully rebutted. For
rebutting presumption by accused, there is no need to
rebut beyond reasonable doubt, but mere believable
probable evidence is/are sufficient. But the appellant
31
has not placed any contra evidence to rebut this
presumption in the present case.
30. Further Section 30 of the POCSO Act deals
regarding culpable mental State of the accused and
raising the presumption as per explanation provided
therein that culpable mental state includes intention,
motive, knowledge of a fact and belief therein or reasons
to believe a fact. The culpable mental state is a collective
intention or knowledge or motive in the mind of the
person who is prosecuted before the court having
committed such crime. The culpable mental state of the
appellant can be presumed on the basis of proven facts
which is proved in the given case which can be by
beyond reasonable doubt. But such culpable mental
state cannot be presumed by preponderance of
probability.
31. Considering the argument canvassed by the
learned counsel for the appellant that as per Section 24
32
of the POCSO Act the statement of PW.1 ought to have
recorded by the woman police officer not below the rank
of sub-inspector. But, in the present case a woman
police constable had recorded the statement of PW.1.
Therefore, submitted that there is violation of Section 24
of the POCSO Act. Upon careful reading of Section 24 of
the POCSO Act, it is stated that as far as practicable
statement of victim can be recorded by woman police
officer not below the rank of the sub-inspector.
Therefore, the word used ‘as far as practicable’ when a
word police officer not below the rank of the sub-
inspector is available then such officer can record
statement. In the present case the statement is recorded
by the woman police constable that cannot vitiate the
entire investigation because in Section 24 of the POCSO
Act the word used is ‘as far as practicable’. Since it is
expressed that ‘as far as practicable’. If the woman
police officer not below the rank of sub-inspector are not
available then other woman officer even though below
33
the rank of Sub-Inspector can record such statement
and therefore it is not mandatory that the woman police
officer not below the rank of sub-inspector can always
record the statement of victim. Therefore the intention
of legislature is that if woman police officer not below
the rank of sub-inspector is not available then the such
police officer can also very well record the statement by
any other woman police official. Therefore, it is not
mandatory that always woman police officer not below
the rank of sub-inspector can record the statement of
PW.1. Therefore, in this regard, just because the woman
police officer not below the rank of sub-inspector has
not recorded the statement of the victim that cannot
vitiate the investigation in the present case. Therefore, I
do not find any merit in the submissions made by the
counsel for the appellant.
32. Then upon considering the delay in lodging
the complaint as it is 18 hours delay in lodging the
complaint and FIR and considering the statement in the
34
eventualities occurred in the present case on
12.01.2016 at 8.30 pm the alleged incident was
occurred and the complaint was lodged on the next day
on 13.01.2016 at 3.00 pm. Therefore, when the incident
was occurred at 8.30 pm quite naturally the father of
PW.1 is mentally insane person and there were only
female members in the family with children, it cannot
be expected that the PWs.1 and 2 to go to the police
station on the night itself and to lodge complaint.
Therefore, they have waited till the next day morning
and when this trauma is occurred in the mind of PW.1
quite naturally on the next day at afternoon 3.00 pm
complaint was lodged. Therefore, considering all these
eventualities, it cannot be said that there is delay in
lodging the complaint and registration of FIR and this
delay cannot go to the core of the prosecution case.
33. Even considering the submission made by
the counsel for the appellant that as per Rule 12 of
Juvenile Justice (Care and Protection of Children)
35
Rules, 2016 the Juvenile Justice Board or Special Court
had not determined the age of the PW.1 but PW.14 had
made arrangement for sending medical examination
and PW.7–Doctor stated that PW.1 is found to be below
the age of 18 years, which is not impeached in the
course of trial. Therefore, before the Special Court there
is material produced by the prosecution through
evidence of PW.7 that PW.1 was found to be below the
age of 18 years upon ossification test and x-ray
examination. Therefore I do not find any merit in the
submissions made by the counsel for the appellant.
34. Considering the entire evidence on record
and upon taking with cumulative effect, the evidence of
PWs.1 and 2 inspire confidence of the court so far as
the act committed by the appellant as gagging the
mouth and tried to disrobe PW.1 which attracts the
offence punishable under Section 7 of the POCSO Act
and Section 354-B of IPC but certainly do not attract
the offence punishable under Section 376 r/w sec.511
36
of ICP and Section 4 r/w 18 of the POCSO Act.
Therefore, the appellant is liable to be convicted for the
offence punishable under Section 7 of the POCSO Act
and Section 354 of IPC and the appellant is liable to be
acquitted from the offence punishable under
Section 376 r/w sec.511 and under Section 4 r/w
sec.18 of the POCSO Act.
35. For the offence punishable under Section 7
of the POCSO Act the punishment prescribed for
imprisonment for not less than three years but may
extend to five years and for the offence punishable
under Section 354-B of IPC the punishment prescribed
is for simple imprisonment for not less than three years
but which may extend to seven years and also with fine.
36. Therefore, in this way the appeal succeeds in
part and thus the judgment of conviction and order on
sentence recorded by the Special Court is liable to be
modified by setting aside so far as conviction and
37
sentence is made for the offence punishable under
Section 376 r/w sec.511 and under Section 4 r/w
sect.18 of the POCSO Act. Hence, I proceed to pass the
following :
ORDER
The criminal appeal is hereby allowed.
The judgment of conviction dated 08.11.2017 and
order on sentence dated 16.11.2017 recorded by the
Special Judge and Addl. District and Sessions Judge,
Bidar is hereby modified to the extent that the appellant
is convicted for the offence punishable under Section 7
of the POCSO Act and Section 354-B of IPC. The
appellant is acquitted from the charges levelled under
Section 376 r/w sec.511 of IPC and Section 4 r/w
Section 18 of the POCSO Act and under Section 506 of
IPC.
The appellant during trial was in custody from
20.01.2016 till 04.06.2016. Then upon conviction of the
38
appellant from 08.11.2017, till this day the appellant is
in custody. Therefore, the appellant is in custody totally
for a period of 03 years 02 months and 8 days.
Since the appellant has suffered imprisonment for
more than three years, therefore what was the period
undergone in the custody that is made set off to the
appellant.
Further the appellant is fined of Rs.10,000/- for
each of the offences under Section 7 of the POCSO Act
and Section 354-B of IPC and in default to pay fine
amount then the appellant shall undergo further simple
imprisonment for a period of six months.
Upon payment of fine amount as above stated the
appellant be released from the custody.
Sd/-
JUDGE
LG/sn
