Neelakantappa vs State By Hosadurga Police Station Chitradurga District, Represented By Public Prosecutor, High Court Building, Bengaluru - 560001 & Others

J.M. Khazi J

This appeal is filed by accused, challenging his conviction and sentence for the offences punishable under Sections 376DB of I.P.C and Sections 4 and 6 of POCSO Act, imposed by the trial Court.

For the sake of convenience, parties are referred to by their ranks before the trial Court.

A charge sheet came to be filed against the accused alleging that on 06.05.2018 in between 7.00 and 8-00 a.m., at his house, accused committed aggravated penetrative sexual assault on the prosecutrix who was aged four years six months and thereby committed the above stated offences.

In respect of the incident, complaint came to be filed by the mother of the prosecutrix. It is stated in the complaint that the accused and the family of prosecutrix are neighbours residing in the same area in Kanguvalli Village, Hosadurga Taluk of Chitradurga district. On 06.05.2018, at 7.00 a.m., prosecutrix went out to play. Around 8.00 a.m., when she came back, the complainant observed that prosecutrix was wearing her pant inside out. When questioned about it, she replied that accused made her to wear it like that. Immediately, the complainant removed her pant and found that prosecutrix was bleeding from her vagina and enquired about it. The prosecutrix disclosed that accused caused the injury and paid her two Rupee coin which she was holding. Immediately the complainant went to the house of accused along with the prosecutrix and questioned him as to why he had done such a thing to her daughter. Accused denied the said allegation. However, when complainant returned to her house saying that she was going to file complaint, accused followed her, held her legs and begged to excuse him. Along with her brothers Chetan and Maralusiddappa, she went to the Government hospital for treatment of her daughter and then filed the complaint.

After conducting detailed investigation, the investigating officer filed charge sheet against the accused.

After conducting detailed trial, the trial Court held that prosecution proved the allegations against accused beyond reasonable doubt and convicted and sentenced him as detailed in the impugned judgment and order.

Being aggrieved by the impugned judgment and order, the accused filed this appeal contending that the trial Court has not appreciated the entire evidence and other reliable materials on record and passed the impugned judgment and order, as such it is perverse. The trial Court also not appreciated the fact that on account of chit business, there was ill will between the family of complainant and accused and as such a false complaint is filed. Prosecutrix was aged only four years and when questioned by the learned Sessions Judge, she was not in a position to give answers. She admitted that on that day, she played on a bullock cart and probably she was injured coming in contact with any object. There are no witnesses to the incident.

5.1 The testimonies of PWs-1, 5 and 6 are based on the information provided to them. Being relatives of the complainant, they are interested witnesses. There is evidence to the effect that the clothes of the prosecutrix were handed over to the doctor and also to the investigating officer. The evidence of the medical officer revealed that the prosecutrix had not sustained any external injuries. The medical officer who examined the prosecutrix did not deny the suggestion that the injury suffered by the prosecutrix was possible if the injured while playing on a bullock cart had come in contact with a hard substance. Viewed from any angle, the impugned judgment and order is not sustainable and he prayed for allowing the appeal by setting aside the same and to set the accused at liberty.

On the other hand, during the course of his arguments learned State Public Prosecutor-II submitted that prosecutrix aged four years six months was in the habit of visiting the house of the accused and playing. On the date of incident, the wife of the accused was not in the house. When the prosecutrix went to play in the house of accused, he removed her pant, committed aggravated penetrative sexual assault on her. Finding that prosecutrix was wearing her pant inside out, on questioning, complainant came to know about the incident. She also found prosecutrix bleeding from vagina. In fact, complainant confronted the accused about the incident and when he denied, she returned to her house saying that she is going to file complaint, after which accused begged to excuse him. Immediately, the complainant took the prosecutrix to the hospital along with her two brothers and one Dakshina Murthy.

He would further submit that on receipt of MLC report, the concerned police visited the hospital and received the complaint. After investigation charge sheet is filed against the accused. The evidence placed on record, including the testimonies of complainant and prosecutrix, coupled with the medical evidence, prosecution proved the allegation against accused beyond reasonable doubt. In fact, the complainant and her family members are not having any ill will or motive to falsely implicate the accused. He would submit that the punishment imposed is also proportionate to the crime and on this ground also, the appeal is liable to be dismissed and sought for dismissal of the same.

Learned counsel appearing for complainant submitted that the victim clearly deposed about the incident. Though she was aged four years six months at the time of incident, analyzing her evidence clearly indicates that she is not tutored. The evidence of the victim and her mother is corroborated by the medical evidence. In the circumstances presumption is required to be drawn which the accused failed to rebut. The conduct of the accused proves that he committed the offence. No justifiable grounds exist to interfere with the impugned judgment and order and prays to dismiss the appeal.

We have heard elaborate arguments of both sides and perused the records.

It is not in dispute that the family of accused and the prosecutrix are residents of Kanguvalli. They were neighbours and in visiting terms. Prosecutrix was in the habit of visiting the house of accused for playing. The evidence of complainant and her husband - the parents of the prosecutrix i.e., PWs-1 and 2 reveal that the house of accused is in the back lane after about 10 houses from their house. Their evidence also reveals that the two sons of accused are working in Bengaluru and accused and his wife were staying in their house. On the date of incident, the wife of the accused was not in the house. These facts are not disputed by the accused.

It is pertinent to note that complainant the mother of prosecutrix is not an eye-witness to the incident. However, she came to know about it immediately after the incident when the prosecutrix came inside her house and on finding that she was wearing her pant inside out, she questioned and while she removed the pant and made her to wear it properly, she found that the prosecutrix was bleeding from vagina and on enquiry with the prosecutrix realised that there was sexual assault by the accused. Despite the fact that complainant is not an eye-witness, her testimony is admissible as res gestae under Section 6 of the Indian Evidence Act. Immediately, she rushed to the accused and confronted him. He denied of having committed any offence. She returned home by saying that she is going to file complaint. On hearing this, the accused followed the complainant to her house and fell on her feet, requesting to be excused. This conduct of accused is also a fact relevant to the prosecution case and is inconsistent with his innocence.

Regarding the incident in question, the first and foremost important aspect required to be noted is that at the time of incident the prosecutrix was aged four years and six months. As per Ex.P13 her date of birth is 19.09.2013. Despite her tender age, when her mother, observing that prosecutrix was wearing her pant inside out, questioned her, she replied that it was done by the accused and revealed the fact of penetrative sexual assault by the accused. Immediately she was taken to the hospital, where PW-9 Dr M G. Sudha examined her. Complainant disclosed her the facts leading to the prosecutrix bleeding from the vagina. On examination, though PW-9 has not found any external injuries, she noted a tender fresh bright red mucosal tear at 6 o'clock position at four chatte measuring 01.25x0.2x01 cms. In Ex.P22, the medical examination report of the sexual violence pertaining to the prosecutrix, PW-9 has noted the history of assault as narrated by the complainant. She has also noted the fact that mother of prosecutrix washed the blood stained pant of the prosecutrix which she was wearing at the time of incident.

However, PW-9 also found that the underwear and the pant, which the prosecutrix was wearing at the time of her examination were also blood stained. Therefore along with them, she collected her top (girl's shirt) also and handed over to the concerned police along with 2 valval smears, 2 valval swab and nail clippings. During her cross-examination, PW-9 deposed that since the complainant stated that she washed the blood stained pant, which the prosecutrix was wearing at the time of incident, she did not collect them. Complainant also stated that after the medical examination, the doctor collected the shirt, pant, and the underwear which prosecutrix was wearing at the time of her examination at MOs-1 to 3. PW-9 examined the prosecutrix within five hours of the incident and noted genital bleeding and pain in genitals since the incident.

A suggestion is also made to PW-9, the medical officer that if the child was hurt while playing on bullock cart, the injury of the nature sustained by her was possible, and to this suggestion PW-9 clearly stated that in such an event, corresponding other injuries should also be there.

After registering the case, the investigating officer has got the statement of prosecutrix recorded by PW-12 M Sharavathi, woman PSI as per Ex.P4, wherein also the prosecutrix has reiterated the facts forthcoming in the complaint. The investigating officer has also got recorded the statement of the prosecutrix through the Judicial Magistrate as per Ex.P12, wherein also she reiterated the fact of sexual assault by the accused and stated that after the incident, she showed the injury to her mother who took her to the hospital. Before the Court also the prosecutrix who is examined as PW-4 clearly deposed regarding the incident and stated that she has disclosed the said fact before the police and also the Judge. During her cross-examination, she denied that no such incident had taken place and that she sustained the said injury while scratching with her nail.

Though during her cross-examination, the prosecutrix admitted that on that day, she played on the bullock cart, but denied that she sustained the injury coming in contact with the Yoke (£ÉÆUÀ) of bullock cart. She also stated that at the time of incident except the accused no one was present in the house. Despite the fact that at the time of incident, the prosecutrix was aged about four years six months, after the incident, immediately she had promptly disclosed the said fact to her mother. While giving statement before PW-12, she reiterated the said fact. When her statement under Section 164 was recorded on 08.05.2018, she repeated the fact of sexual assault made on her by the accused. On 25.09.2018, when the evidence of prosecutrix was recorded before the Court, she clearly spoke about the incident. Despite being a child of tender age, her evidence is cogent, consistent and convincing. The examination of the evidence of the prosecutrix makes it clear that she was not a tutored witness. The fact that there was no delay in filing the complaint gives credence to the prosecution case.

PW-7 Jayadevaswamy is the father of prosecutrix. At the time of incident, he was working at Bengaluru. Immediately, after coming to know about the incident telephonically, he came to Hosadurga Hospital and joined his wife and others. Through the cross-examination of PWs-1 and 7, it was elicited by the defence that the mother of the prosecutrix was a member of a chit conducted by Ashirwad Micro Finance and the father of the prosecutrix was a member of chit run by male members. Though they have admitted that the accused and his wife were also members of the respective groups, they have denied that regarding payment of the installments there was dispute between them and for this reason, the accused was falsely implicated. Except the suggestions, the defence has not succeeded in establishing that because of the disputed chit fund transaction, the accused has been falsely implicated. In fact, the complainant has deposed that registers are maintained regarding the said transactions. She has signed them for having paid the installments and they may be summoned. Of course the defence has not chosen to do so.

If at all the parents of prosecutrix were intending to falsely implicate the accused, the defence has no explanation regarding the injury sustained by the prosecutrix. The prosecutrix has denied the suggestion that she sustained the injury while scratching her vagina with nail. No such suggestion is made to the complainant as well as PW-9 Dr M.G. Sudha who was in a competent position to depose whether the injury suffered by prosecutrix was possible if she had scratched with nail.

After coming to know about the incident and confronting the accused, the complainant informed her 2 brothers viz, PW-6 Chetan and CW-9 Maralusiddaswamy and with them took the prosecutrix to the hospital, as her husband was at Bengaluru. PW-5 Dakshina Murthy is a relative of complainant. He is also resident of Kanguvalli. He was working as a computer operator at the Gram Panchayath. His evidence reveals that on that day, he had gone to Hosadurga and after completing the work at Hosadurga, he was returning to Kanguvalli on his motorcycle. He saw complainant along with her brothers and prosecutrix coming from Kanguvalli in an autorickshaw and came to know about the incident. He also followed them to the hospital. PW-6 Chetan, the brother of complainant has also deposed that after coming to know about the incident, they accompanied the complainant and prosecutrix to the hospital. By the time they reached the hospital, PW-7 Jayadevaswamy, the father of prosecutrix also joined them. They came to know about the incident through the complainant.

During the cross-examination of PW-7 Jayadevaswamy, it is elicited that PW-6 Chetan brought the clothes of prosecutrix which were kept in the house and handed them over to the medical officer who examined her. However, this suggestion was not made to PW-6 Chetan and also the medical officer i.e, PW 9 Dr M.G. Sudha. In fact, during her cross-examination PW-9 has clearly stated that since the mother of the prosecutrix had washed her pant which the prosecutrix was wearing at the time of incident, she did not collect the same. On the other hand, the report at Ex.P22 in as much as the testimonies of PWs-1 and 9 reveal that even the pant and underwear, which the prosecutrix was wearing at the time of her examination were also blood stained and she collected the same. Therefore, the fact that the pant which the prosecutrix was wearing at the time of incident was not seized, would not go to the root of the case, especially when it was not the case of the prosecution that due to sexual assault, there was Pinole penetration, ejaculation and discharge of sperms.

On the arrest of accused, he was subjected to medical examination by PW-10 as per the report at Ex.P24 by PW-10 Dr Yogesh. He has given evidence that accused is able to perform sexual act. Along with the biological samples collected from the accused, his clothes were also recovered through PW-3 Chidananda and CW-7 Ashoka. The FSL report at Ex.P23 reveals that the pant and underwear of the prosecutrix at Sl.No.3 and 5 were stained with human blood of 'B' group, whereas the blood samples of the accused at Sl.Nos.7 and 8 was of 'O' group. Thus, despite the fact that the complainant changed the underwear and pant of the prosecutrix while taking her to the hospital, on account of the injury suffered by her, the changed clothes of the prosecutrix, viz., the underwear and pant again became blood stained and it was revealed in the FSL report. Having regard to the fact that according to the prosecution, there was no ejaculation and release of sperms, therefore change of clothes of the prosecutrix did not prejudice the accused.

Of course, the testimonies of PWs-11, 12 and 13 regarding the investigation conducted by them, corroborates the testimonies of prosecution witnesses. Despite her tender age, the evidence of the prosecutrix is reliable and trustworthy. The testimonies of PWs-1, 5, 6 and 7, who are close relatives of the prosecutrix is also cogent, convincing and trustworthy. In the absence of any ill will or any reason for false implication, we find no reason to disbelieve their evidence. Taking into consideration the entire material placed on record, the trial Court has come to a correct conclusion that the charges levelled against the accused are proved beyond reasonable doubt. On re-appreciation of the case of the prosecution in the light of the documentary evidence placed on record, we find no reason to interfere with the conclusions arrived by the trial Court.

Now, coming to the quantum of punishment imposed on the accused. The charge sheet is filed against the accused alleging offences punishable under Sections 376 I.P.C and Sections 4 and 6 of POCSO Act. The date of incident is 06.05.2018. Therefore the amending Act of 2013 is applicable. Though the offence punishable under Section 376 (3) is made out, the trial Court has framed charge for the offence punishable under Section 376 DB which is punishment prescribed for gang rape on a women under 12 years of age. The punishment prescribed for the said offence is imprisonment for life which shall mean imprisonment for the remainder of person's natural life, and with fine, or with death. Therefore, we are of the considered opinion that the offence punishable under Section 376 (3) is made out, which is punishable with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. In other words the punishment prescribed under Section 376(3) is less severe than what is prescribed for the offence under Section 376 DB and a discretion is also given to the Court in deciding the punishment. Of course the discretion is required to be used judiciously.

The offence under Section 4 of POCSO Act prescribes punishment for penetrative sexual assault and it is punishable with imprisonment of either description for a term which shall not be less than 7 years, but which may extend to imprisonment for life and shall also be liable to fine.

The offence under Section 6 of POCSO Act prescribes punishment for aggravated sexual assault and it is punishable with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life and shall also be liable to fine.

As per Section 42 of the POCSO Act which deals with alternative punishment, when an act or omission constitute an offence punishable under this Act and also under any other law for the time being in force, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to be punished only under such law or this Act as provides for punishment which is greater in degree.

Since the offence committed by the accused amounts to penetrative sexual assault and since the prosecutrix was aged four years six months as on the date of offence, it answers the definition of aggravated penetrative sexual assault calling for higher punishment, no separate punishment is required to be imposed under Section 4.

When compared to Section 6 the punishment prescribed under Section 376(3) is greater in degree, the accused is liable to be punished under Section 376(3). The trial Court has sentenced the accused under Section 376 DB for imprisonment for the remainder of his natural life and sentenced to pay fine of Rs.30,000/-. Having regard to the fact that though the offence committed by the accused answers the definition of aggravated penetrative sexual assault, there is no rupture of hymen. The accused is aged 55 years. He is a married person having wife and children. Taking into consideration these aspects we are of the considered opinion that sentencing him to undergo imprisonment for remainder of his natural life is very harsh and sentencing him to undergo rigorous imprisonment for a period of 20 years would meet the ends of justice. Accordingly, we substitute the punishment of imprisonment for remainder of life of the accused by rigourous imprisonment for 20 years. The fine imposed by the trial Court is maintained.

ORDER

(i) Appeal is partly allowed.

(ii) The judgment of conviction dated 15.04.2019 in Spl.Case (POCSO) No.199/2018 on the file of II Addl.District and Sessions & Spl.Judge, Chitradurga, is confirmed, but the sentence imposed by the trial Court is modified and the appellant/accused is directed to serve rigorous imprisonment for 20 years instead of life imprisonment for remainder of his life. The fine imposed by the trial Court is maintained.

(iii) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith.