Isabella Mariam

The High Court of Karnataka at Dharwad, Single Bench of Justice J.M. Khazi dismissed a criminal appeal and upheld the conviction and sentence of a man found guilty under Section 377 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The appellant had sought to set aside the judgment and order passed by the Special Court, which sentenced him to twenty years of rigorous imprisonment along with a fine of ₹1,00,000. The High Court examined the trial court records and found the conclusions arrived at to be supported by a thorough analysis of both oral and documentary evidence.

The Court found the trial court had rightly invoked Section 42 of the POCSO Act, which mandates punishment under the more stringent law in case of overlapping offences. Consequently, the High Court affirmed that the 20-year sentence imposed under Section 6 of the POCSO Act was appropriate and consistent with statutory requirements. The appeal under Section 374(2) Cr.P.C. was thereby dismissed, and the trial court’s judgment and sentence were confirmed.

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The case arose from an incident dated 15 March 2022, wherein the accused allegedly committed penetrative sexual assault on a minor boy aged approximately six years. The prosecution was initiated following a complaint lodged by the maternal uncle of the victim. The complaint led to the registration of Crime No. 56/2022 at the Kumta Police Station. The accused was charged under Section 377 IPC and Sections 4 and 6 of the POCSO Act.

The incident occurred in Kagal Hini village at around 2:00 PM when the victim boy was playing outside a shop owned by Abdul Karim Alji. The accused, a 27-year-old fisheries worker, is alleged to have lured the victim under the pretext of a motorbike ride. The accused then took the child to a secluded area near the Aghanashini River, a distance of about one and a half kilometres from the location. There, the accused allegedly committed the offence by placing the victim face down on the petrol tank of the bike, lowering the victim’s trousers and his own, and performing anal penetration, causing injury and bleeding.

The victim was taken to Canara Health Care Centre and subsequently referred to Omega Hospital, Mangaluru, for further treatment. The medical examination corroborated signs of penetrative sexual assault. During the investigation, both the accused and the victim were medically examined. The forensic analysis of their clothing was also conducted.

The charge sheet was filed, and charges were framed for the offences under Section 377 IPC and Sections 4 and 6 of the POCSO Act. The accused pleaded not guilty and opted for trial. The prosecution presented 24 witnesses (PWs 1 to 24) and 50 exhibits (Exs. P1 to P50), along with one material object (MO-1). The defence did not lead any evidence.

The trial court convicted the accused and sentenced him to twenty years of rigorous imprisonment with a fine of ₹1,00,000, and in default, further imprisonment. The accused then filed a criminal appeal under Section 374(2) Cr.P.C., challenging the conviction and sentence.

The grounds raised in the appeal included the assertion that the trial court had erred in its assessment of evidence, that the conviction was based on circumstantial evidence and a delayed statement by the victim, and that medical evidence did not conclusively support the charge. The appellant contended that the delay in filing the complaint and the lack of clear disclosure by the victim initially undermined the prosecution's case.

In response, the State argued that the victim’s family did not know the accused and had no motive for false implication. The delay was explained as stemming from the victim’s reluctance to disclose the nature of the incident, which was only discovered after medical examination. Witnesses testified to seeing the accused with the victim immediately before and after the incident.

The trial court had found the medical and testimonial evidence sufficient to establish the guilt of the accused beyond reasonable doubt. It relied on the testimonies of the victim (PW-1), his parents, and eyewitnesses. The court considered documentary evidence including the victim’s birth certificate and school records to confirm his age as under six years at the time of the incident, making the POCSO provisions applicable.

The High Court recorded that "as on the date of incident, the victim boy was aged five years eight months", based on school admission forms and the birth certificate marked as Ex. P28. The defence did not dispute the age of the victim, and the Court held that the "provisions of POCSO Act are applicable."

Addressing the delay in filing the complaint, the Court stated: "It is pertinent to note that it was a shocking and humiliating experience for the victim boy to have undergone the unnatural sexual assault by the accused. For this reason, he was not ready to disclose what actually transpired." The complaint was only lodged after medical examinations confirmed the sexual assault.

The judgment noted: "Only after treatment and passage of time, he has opened and revealed the fact of a sexual assault on him." It was further recorded that "the maternal uncle of the victim boy has stated that the victim boy did not disclose the details. Only after medical examination at Canara Health Care Centre, they came to know that it is a sexual assault."

The Court referred to the examining doctor’s conduct and explained: "PW-10 Dr Sachidanand Naik... has not intimated the concerned police about the medico legal case." The Court noted his explanation that the boy was not speaking and he advised further referral.

Regarding the victim’s testimony, the Court observed: "During the course of evidence, the victim boy has clearly deposed that on the date of incident... accused came and took him on his motorbike to Karodi and there he committed unnatural offence." The Court found this testimony corroborated by PWs 5 and 15, who witnessed the victim being taken and returned by the accused.

"The testimony of PW-1 i.e, the victim boy is supported by the evidence of PW-15 Mohammed Khaleel Ingreji and PW-5 Abdul Kareem Alz," the Court recorded. It also observed that the victim and his relatives were not residents of the village, diminishing the chance of any pre-existing enmity with the accused.

The Court recorded: "Even though PW-1 - the victim boy has deposed that he has given evidence as directed by his parents, the examination of his testimony clearly indicates that it is reliable and trustworthy."

The medical findings were addressed as follows: "PW-12 Dr Ullas Shetty clearly establish the fact that... he examined the victim boy and opined that there was possibility of anal intercourse or insertion of similar object." After receiving the FSL report, the doctor gave a conclusive opinion of recent forceful penetration.

Rejecting the defence’s alternate hypothesis, the Court noted: "Though suggestions are made... that if a boy sustain injury while playing with a stick such injury... are possible... the defence could not dislodge the evidence... that it is a case of penetrative sexual assault."

The Court concluded: "The trial Court on detailed and thorough analysis of the evidence... has come to a correct conclusion... and this Court finds no perversity calling for interference."

The High Court of Karnataka delivered the following directions:

"Appeal filed by the appellant under Section 374(2) of Cr.P.C is dismissed."

"The impugned judgment and order dated 23.11.2022 in Spl.C.No.57/2022 on the file of Addl.District and Sessions Judge - FTSC-1, U.K.Karwar (Special Court for trial of cases filed under POCSO) Act is hereby confirmed."

"The Registry is directed to send back the trial Court records along with copy of this judgment."

Regarding the sentence, the High Court noted:"Section 6 of POCSO Act is punishable with rigorous imprisonment for a term which shall not be less than 20 years... and also shall be liable to fine or with death."

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Applying Section 42 of the Act, the Court found: "Though in case of offence punishable under Section 377 of IPC, discretion is vested with the Court to punish the accused with minimum sentence, in the light of Section 42 of POCSO Act, the trial Court is justified in imposing rigorous imprisonment for 20 years and also imposing fine of ₹1 lakh."

The Court found "no scope for interference while imposing the punishment also."

Advocates Representing the Parties:

For the Petitioner: Sri Neelendra Gunde, Advocate for Sri Santosh B. Mane, Advocate

For the Respondents: Sri Abhishek Mailpatil, HCGP; Smt. Chitra M. Goundalkar, Advocate

Case Title: XXX v. State of Karnataka & Anr.

Case Number: CRL.A.NO.100081/2023

Bench: Justice J.M. Khazi