Karnataka High Court
Bheemaraya @ Bheemareddy @ Reddy vs The State Through Shahapur Police … on 23 August, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 200079 of 2016
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IN THE HIGH COURT OF KARNATAKA,
®
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
CRIMINAL APPEAL NO.200079 OF 2016
(374(Cr.PC)/415(BNSS)
BETWEEN
BHEEMARAYA @ BHEEMAREDDY @ REDDY
S/O MAREPPA DODMANI,
AGE: 21 YEARS, OCC: COOLIE WORK,
R/O: TIPPANATAGI, TQ: SHAHAPUR,
DIST: YADGIRI.
...APPELLANT
(BY SRI AVINASH A. UPLOANKAR, ADVOCATE)
AND
Digitally signed
by SACHIN
Location: HIGH THE STATE THROUGH,
COURT OF SHAHAPUR POLICE STATION,
KARNATAKA
DIST: YADGIRI.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. SPP FOR
RESPONDENT)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
CALL FOR RECORDS AND EXAMINE THE RECORDS IN
SESSIONS CASE NO.85/2012 AND SET ASIDE THE JUDGMENT
PASSED BY THE LEARNED SESSION JUDGE, YADGIRI FOR
CONVICTING THE APPELLANT BY ITS JUDGMENT DATED
17.06.2016, IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.08.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV JUDGMENT
(PER: HON’BLE MR. JUSTICE H.P.SANDESH)
This appeal is filed by appellant/accused No.1
(hereinafter referred to as ‘accused’ for brevity)
challenging the judgment of conviction and order of
sentence dated 17.06.2016 passed in Sessions Case
No.85/2012 by the Court of the District and Sessions
Judge, Yadgiri (hereinafter referred to as ‘Trial Court’)
wherein the Trial Court convicted the accused for the
offences punishable under Section 366A and 376 of Indian
Penal Code (IPC) and sentenced him to undergo simple
imprisonment for seven years and to pay a fine of
Rs.10,000/-, in default, to undergo simple imprisonment
for six months for the offence punishable under Section
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366A of IPC and further to undergo simple imprisonment
for life and to pay a fine of Rs.10,000/-, in default, to
undergo simple imprisonment for six months for the
offence punishable under Section 376 of IPC.
2. The factual matrix of case of prosecution before
the Trial Court is that on 11.11.2010 at 4:40 p.m. when
the victim girl was in Balaji Book Depot, Shahapur along
with her inmates, accused had induced her to go to any
place knowingly well that she is less than 18 years for
having sex. On 15.11.2010 at about 9:00 p.m. in Bolewad
Gravel (Kankar) Machine Shed, accused subjected her to
sexual act and committed rape on her, who is a minor girl
against her will and consent.
3. It is also the case of the prosecution that
accused No.2 aided to accused No.1 in committing such
offences. So also accused Nos.3 and 4 have also
committed an offence punishable under Section 109 read
with Section 34 of IPC.
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4. The prosecution mainly based on the
complaints-Exs.P.3 and P5 registered the case,
investigated the matter, collected the material against all
the accused by recording the statement of witnesses and
also obtaining the medical report of victim girl and
documentary evidence of age proof and also conducted
panchnama, spot panchnama, filed the charge-sheet. The
accused persons were secured before the Trial Court.
Accused No.2 passed away during the course of trial and
hence offence against him is abated vide order dated
23.03.2015. On considering both oral and documentary
evidence, the trial Court acquitted accused No.3 and 4,
convicted accused No.1 i.e., appellant herein. Hence, the
present appeal is filed.
5. The prosecution mainly relies upon the evidence
of PWs.1 to 18 i.e., oral and documentary evidence as
Exs.P.1 to P14 and MOs.1 to 3. The accused did not
choose to lead any defence evidence, but got marked
documents as Exs.D1 to D1(b).
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6. The main contention of the counsel appearing
for the accused in his argument that the Trial Court
committed an error in passing the judgment of conviction
and the reasons assigned is erroneous. As such, Trial
Court slipped into an error and the appreciation of
evidence is failure on the part of the trial Judge, which has
resulted in substantial miscarriage of justice. The counsel
would vehemently contend that Trial Court has convicted
the accused only on the basis of the age, more particularly
on the extract issued by PW.1 without looking into the
other aspects. The counsel also vehemently contend that
in absence of any material for believing the date of birth
mentioned in the extract and without examining the
validity of the document, trial Court committed an error
and appreciation of the material before the Court for
accepting date of birth certificate is against the dictum of
the Hon’ble Supreme Court.
7. The counsel also vehemently contend that the
evidence of the PW.2, who is the brother of the victim.
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During his cross-examination, he categorically admitted
with regard to the difference of age between him and the
victim. It is very clear that he was aged more than 20
years. It is contended that teachers who have recorded
the date of birth, the same is not supported by any other
documents, either the revenue records or the hospital
records. Trial Court erroneously accepted the age of the
victim without any corroboration.
8. The counsel also vehemently contend that the
evidence of PW.7 – victim girl is totally misconceived by
the Trial Court in appreciating as she was with the
appellant for more than two months and even in her
statement made before learned Magistrate under Section
164 of Cr.P.C., categorically stated that accused never
raped her and same is rejected on flimsy grounds
unknown to law.
9. The counsel also brought to notice of this Court
the evidence of PW.13-Doctor who categorically deposed
that victim is at the age of 17 to 18 years and there are no
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marks of recent sexual intercourse and this factum is also
overlooked by the Trial Court.
10. The counsel also vehemently contends that
ingredients of Section 366A of IPC are totally
misunderstood by the Trial Court and the same is with
regard to procuring a minor girl with an intention to
subject her for sexual intercourse with another person
against her will. The Trial Court wrongly convicted the
accused invoking Section 366A of IPC.
11. The counsel also during his argument
vehemently contends that the trial Court mainly relies
upon the evidence of PW.1 who had produced the school
certificate as per Ex.P1 and also Ex.P.2 the extract. The
counsel also vehemently contend that when the Doctor
evidence is very clear that she is aged about 17 to 18
years and when the victim accompanied the accused from
Gulbarga to Pune and stayed for about two months with
him, the Trial Judge ought to have appreciated the very
conduct of the victim. The counsel would vehemently
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contend that Ex.P.1 is not admissible and only secondary
evidence has been relied upon and original material with
regard to her age is concerned, nothing is collected and
none of the witnesses spoken anything about the same
with regard to the original records. The Trial Court relies
upon only the secondary evidence and when the
documents Exs.P.1 and P.2 are not admissible, the same
ought not to have relied upon.
12. The counsel in support his argument also
vehemently contend that the trial Court fails to take note
of the proviso to Rule 12(3) of Juvenile Justice (Care and
Protection of Children) Rules 2007. The proviso is very
clear that authority shall determine the age of a juvenile
or child or juvenile in conflict with law within a period of 30
days from the date of making of application for the
purpose. He would also vehemently contend that Rule
12(3)(b) that only in absence of alternative methods
prescribed under Rule 12(3)(a), medical opinion can be
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sought and the certificate issued by the school in
determining the age of prosecutrix cannot be relied upon.
13. The counsel in support of his argument relied
upon the decision of the Hon’ble Apex Court in the case of
Rajak Mohammad vs. The State of Himachal
Pradesh1 and brought to notice of this Court that with
regard to the focal point for decision would be the age of
the prosecutrix in order to determine as to whether she
was a major so as to give her consent and held that
nothing hinges on the document exhibited by the
prosecution, as that is the consequential certificate issued
on the basis of the entries in exhibit PW.5/A, who is the
mother of the prosecutrix who had allegedly signed exhibit
PW.5 has not been examined by the prosecution. The
Doctor who had given an opinion that the age of the
prosecutrix was between 17 to 18 years.
14. The counsel also relied upon the decision of the
Hon’ble Supreme Court in the case of P.Yuvaprakash vs.
1
(2018) 9 SCC 248
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State represented by Inspector of Police2 wherein also
discussion was made with regard to Protection of Children
from Sexual Offences Act 2012 (POCSO Act) and so also
Section 94 Juvenile Justice (Care and Protection of
Children) Act, 2015 (JJ Act) and also brought to notice of
this Court the discussion made in paragraph No.8 that, in
the first instance, the school leaving certificate, or the
matriculation certificate had to be seen; if that were not
available, the birth certificate or records to that effect
issued by the local or municipal authority are to be
considered, and if neither of the first two classes of
documents are available, then, age determination depends
on the ossification test. Also a discussion was made in
paragraph No.9 that what she stated in her statement
under Section 164 of Cr.P.C., the accused could not have
been convicted for the offences that he was charged with.
15. The counsel referring this judgment also would
contend that in 164 statement, PW.7-victim categorically
2
2023 LiveLaw (SC) 538
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stated that she was not subjected to any sexual act. The
counsel also brought to notice of this Court the discussion
made in paragraph No.18 that when the transfer
certificate is produced that she has studied in the school
and that the date of birth was based on the record sheet
given by the school where she studied in the 7th standard.
She admitted that though the date of birth was based on
the birth certificate, it would normally be recorded on the
basis of horoscope.
16. The counsel also brought to notice of this Court
the discussion made in paragraph No.21 regarding the
deposition of the Doctor wherein he has stated that victim
had a ruptured hymen; there was no external injury at her
private parts and that according to her “48 hours before
medical examination there was no evidence to show that
she had sexual assault is the opinion given by the Doctor”.
Under the circumstances a discussion was made that there
was no penetrative sexual assault on her and hence,
provisions of POCSO Act will not be applicable in the case.
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17. The counsel also relied upon the decision of the
learned Single Judge of this Court in Criminal Appeal
No.577/2013 and brought to notice of this Court at
paragraph Nos.8, 21 and 27 wherein a discussion was
made regarding age of victim. Wherein relying upon the
decision of the Hon’ble Apex Court in the case of Sunil vs.
State of Haryana3 wherein an observation is made with
regard to non-proving of school leaving certificate.
18. The counsel also brought to notice of this Court
the discussion made in paragraph No.21 wherein taken a
note of the evidence of the Doctor and also para 27
referring the decision in the case of Jogi Dan and others
vs. State of Rajasthan4, wherein it is held that, in case
of rape, in the absence of injuries either on the accused or
on the prosecutrix shows that proxecturx did not resist but
absence of injuries is not by itself sufficient to hold that a
prosecutrix was a consenting party. Non production of
witnesses gathered after hearing cries of prosecutrix,
3
(2010) 1 SCC 742
4
2004 Crl.L.J 1726
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conviction cannot be based on unreliable solitary
statement of prosecutrix.
19. The counsel referring this decision would
vehemently contend that this decision also helps the
accused. The counsel also in support of his argument
relied upon the decision in Sunil‘s case supra, wherein a
discussion was made referring the judgment of the Hon’ble
Apex Court in the case of Birad Mal Singhvi vs. Anand
Purohit5 with an observation that the date of birth
mentioned in the school register has no evidentiary value
unless the person who made the entry or who gave the
date of birth is examined. Also brought to notice of this
Court the discussion made in paragraph Nos.27 and 32
about the alleged school leaving certificate on the basis of
which the age was entered in the school was not
produced.
20. Per contra, the counsel appearing for the
respondent/State i.e., Additional State Public Prosecutor in
5
AIR 1988 SC 1796
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his argument would vehemently contend that the
document which is produced before the trial Court through
PW.1 is not disputed and there is no cross-examination to
that effect denying the document of Exs.P.1 and P.2. In
absence of any dispute to the same, now the accused
cannot be permitted to question the same.
21. The counsel also would vehemently contend
that the defence counsel mainly relied upon the evidence
of PW.2 and his evidence cannot be relied upon with
regard to the age of the victim, though PW.2 said the age
between him and the victim, when the documentary
evidence is placed before the Court and proved the same
by examining the witness PW.1. Also in the cross-
examination of PW.7 – victim regarding her age is
concerned nothing is elicited and when the father was
examined as PW.11 before the trial Court, no cross-
examination was made regarding the age gap between his
son and daughter. Hence, the very contention that
evidence of PW.2 has to be relied upon cannot be
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accepted. PW.11-father of victim has to speak about the
age of victim, no cross-examination was made and when
the document Ex.P.1 is placed before the Court, same is
not a fatal and in absence of disputing the documents of
Exs.P.1 and P.2, the same cannot be questioned before
the Appellate Court. The counsel also vehemently contend
that the Trial Court while accepting the document of
Exs.P.1 and P.2 made specific observation that those two
documents are not denied and now cannot contend that
those documents are secondary evidence and not primary
evidence.
22. The counsel also vehemently contend that when
PW.13 – Doctor was examined before the Court he has
stated that hymen would be torn due to cycling. But when
PW.13 categorically deposes before the Court that she was
subjected to sexual act though there was no recent sign of
sexual act, subjecting her for sexual act is not disputed. It
is also contended that throughout in the cross examination
of victim and other witnesses suggestions are made that it
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was a consensual sex, but question of consensual sex does
not arise when the child is below the age of 16 years.
23. The counsel also vehemently contend that when
the counsel for the accused relies upon document Ex.D-1 –
the statement of victim girl under Section 164 of Cr.P.C
and same is confronted and marked, wherein she
categorically deposed that she was not subjected to sexual
act. But in the cross-examination she has given an
explanation that there was a threat by accused and hence,
she has made the statement before the learned
Magistrate, in such a manner. The counsel also
vehemently contended that though Section 366A of IPC is
invoked by prosecution and very definition of Section 361
attracts inducing and kidnapping a girl below the age of 18
years and also a penal proviso is made with the
ingredients of Section 361 attracts the punishment
provision i.e., Section 363 of IPC.
24. The counsel also vehemently contend that when
the prosecution relies upon both oral and documentary
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evidence regarding the age proof is concerned, there is no
denial of certificate and evidence of PW-1 is very clear that
documents are secured on the original Court regarding her
age is concerned same are placed before the Court. The
accused also did not dispute the fact that the victim had
pursued her education in Kasturba School and evidence of
PW.1 is also very clear that date of birth was recorded
based on the school records, which were received from
Kasturba school. The counsel also would contend that for
invoking of Section 376 of IPC sexual act committed
against the victim not stated in 164 statement is not fatal.
The counsel also brought to notice of this Court that no
cross-examination was made with regard to victim was not
subjected to sexual act.
25. In reply to this argument, the counsel
appearing for the appellant would vehemently contend
that in order to prove the age of the victim girl not placed
any primary evidence before the Court. Hence, the very
conviction is not based on corroborative piece of evidence
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against accused, accused is entitled for acquittal on the
ground of benefit of doubt.
26. Having heard the counsel for the accused as
well as the counsel appearing for the respondent/State
and also considering the material available on record and
the principles laid down in the aforesaid decisions, the
points that would arises for consideration of this Court are:
i) Whether the Trial Court committed an error in
convicting and sentencing the accused for the
offences punishable under Sections 366A and
376 of IPC and whether it requires
interference of this Court?
ii) What order?
27. Having considered the material on record, it is
the specific case of the prosecution that victim girl was
pursuing her education in high school and also she was
staying in the hostel. She was taken by accused Nos.1 and
2 and accused Nos.3 and 4 facilitated accused No.1 to
commit the offence. Now for re-appreciation of material is
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concerned, accused Nos.3 and 4 are acquitted and no
need to discuss the same, as there is no any counter
appeal by State. It is also to be noted that accused No.2
passed away and case is abetted against him and only
reconsideration is against accused No.1, who had been
convicted for the above offences and sentenced.
28. In order to substantiate the case, victim was
taken to Shahapur bus stand and then to Gulbarga and
Puna. The prosecution mainly relies upon the evidence of
PWs-5, 6, 8 and 9 and so also the evidence of PW-7.
Before appreciating the evidence of PW-7, this Court has
look into the evidence of PWs-5 and 6, who are the batch
mates, who are pursuing their education along with the
victim in the hostel. The hostel was at a distance of one
kilometer from the school where they were pursuing their
education. Both of them deposed that victim was also
pursuing her education along with them. Both PWs-5 and
6 said that accused Nos.1 and 2 were came near the
school and met PW-1, but PW-1 did not allow them to take
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her, when both of them visited to school. PW-1 only told
them not to come to school and loiter before the school.
But the very evidence of PWs-5 and 6 is very clear that
when both of them went near the book stall, accused
Nos.1 and 2 came and PW-7 also informed them that they
are their villagers and PW-5 said that accused No. 1 and 2
took her by holding her hand and she did not turn-up and
the same was informed to the hostel warden and accused
himself called the warden and informed that he was the
brother of the victim.
29. In the cross-examination of PW-5, except
eliciting that they didn’t question when they held her hand
and took PW-7 and did not inform the same to teacher or
to the staff. Except this, nothing is elicited from the mouth
of PW-5 and so also in the cross-examination of PW-6 only
suggestions are made that accused No.1 and 2 did not
take victim forcibly. It is also important to note that PW-7
victim also reiterates the same when she was along with
PWs-5 and 6, accused No.1 and 2 came and took her.
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30. PW-8 is the teacher categorically deposes
before the Court that PWs-5 and 6 came and told that two
boys came and took her, but they waited and they did not
bring her back. Shahana Begum-warden also received the
phone call and accused himself told her that he only took
her. In the cross-examination, question was put to her
that she didn’t give any complaint, but witness explains
that when the accused called and told that he only took
her claiming that he is the brother, she did not give any
complaint. PW-9 also in her evidence categorically said
that the accused called and told that he is her brother and
took her.
31. Having considered the evidence of these
witnesses, it is very much clear that accused only came
and took the victim girl and evidence of PW-5 and 6 is
very clear that the accused only came and took her. The
evidence of PWs-8 and 9 is also very clear that PWs-5 and
6 informed about the same and also accused only called
PW-9 and informed about the same that he only took her
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and their evidence is consistent and nothing is elicited.
Having taken note of these evidences, it is very clear that
appellant/accused No.1 is only took her. That apart,
evidence of PW-7 is also very clear that accused had taken
her to Gulbarga and Puna.
32. It is also important to note that PW-10
categorically deposes before the Court that accused No.1
only brought the victim and he was having acquaintance
with accused No.1 and he only brought the victim to the
place where he was working and both of them requested
to work there and owner also agreed for the same and
started to stay in the shed. He also categorically deposed
that after one and half month, the police came and took
both the accused and the victim. This evidence was not
disputed or cross-examined by the defence.
33. It is also important to note that PW-17 is also
another witness, who speaks about accused No.1 only
brought the victim girl to the factory and deposes that
both of them were staying in the same shed and except
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the suggestion made to this witness that he is falsely
deposing before the Court, nothing is elicited. Hence, the
evidence of PWs-10 and 17 is very clear that accused took
the victim girl to Puna and stayed along with the victim
and these two witnesses evidence also collaborates with
the evidence of the victim PW-7 that the accused only took
the victim girl to Puna and staying in a shed along with
victim. During the course of argument also the counsel for
the accused not disputes seriously about these facts. He
would vehemently contend that when the victim herself
stayed along with accused for a period of two months, it is
very clear that no question of invoking the offence under
Section 366A so also Section 376 of IPC. These are all the
materials taken note of by the Trial Court with regard to
accused taking the victim and stayed along with the
victim. It is also not in dispute that police only went and
brought both accused and victim.
34. Now coming to the aspect of the issue whether
she was subjected to sexual act or not. The Court has to
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take note of the evidences of PW-7 – victim girl and
PW.13-Doctor. PW-7 in her evidence reiterated the case of
prosecution that accused No.1 took her from Gulbarga to
Puna and to Puna Bolewada area and kept her in the shed.
Her evidence is very clear that on 15.11.2020 at 9:00
p.m., accused subjected her to sexual act against her will
by removing her cloth. When she refused, accused
threatened that he is going to take her life and committed
sexual act two-three times and everyday subjected her to
sexual act as against her will. She also says that police
came and took both of them from the said shed to
Shahapura and she gave the statement and also she was
taken to the Government Hospital, wherein she was
subjected to medical examination. In the cross-
examination, she admits that when accused Nos.1 and 2
came, at that time, PW-5 and 6 also were along with her.
She admits that place is a public place, but she says that
due to threat by accused, she did not scream and also she
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did not resist till taking her to Puna, since there was a
threat and she was afraid of the accused.
35. No doubt, in the cross-examination of PW-7,
document was confronted as Ex.D-1 that she gave the
statement before the learned Magistrate under Section
164 of Cr.P.C. She categorically admits that she made a
statement that the accused did not subject her to sexual
act for a period of two months. But, to the next question,
she has given an explanation that accused threatened her
and hence, she gave the statement in terms of Ex.D1(b).
This Court also considered the evidence of PW-13 coupled
with evidence of PW-7. PW-13 in his evidence
categorically deposed that the victim might have been
aged about 17 to 18 years and hymen was not intact. He
has collected the smear and sent the same for FSL. He
gave the report in terms of Ex.P-8. It is the evidence of
PW.13 that there was no sign of any recent sexual act, but
his categorical deposition before the Court is that victim
was subjected to sexual act and there was a sign to that
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effect. The only cross-examination made to this witness is
that there may be possibility of hymen rupture due to
cycling and as per direction of police, he had issued Exs.P-
7 and P-8. To the suggestion that the victim was not
subjected to sexual act, PW.13 categorically deposed
before the Court that she was subjected to sexual act and
there are signs of subjecting her for sexual act.
36. A conjoint reading of the evidence of PW.13 and
PW.7 it is very clear that the victim was subjected to
sexual act and the fact that hymen was not intact is not in
dispute. PW.7 categorically deposed before the Court that
she was subjected to sexual act by the accused forcibly
and repeatedly everyday and the same corroborated with
the evidence of PW.13-Doctor that she was subjected to
sexual act and there were sighs that victim was subjected
to sexual act, same is not disputed in the cross-
examination of PW.13. Hence, it is clear that there is
evidence before the Court that she was subjected to
sexual act.
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37. Now coming to the main focus on the
contention of the leaned counsel for the accused that the
prosecution failed to prove the age of the victim. Now this
Court has to consider the evidence of PW.1 who is the Vice
Principal of the school wherein the victim was pursuing the
education at the time of the incident. The evidence of the
Doctor is very clear that Investigating Officer requested
PW.1 to provide the school certificate with regard to her
age is concerned. She has verified the school records and
the victim was admitted to their school for 9th standard,
but she has not completed her studies of 9th standard.
Having perused the school records register, she was born
on 20.05.1996 and issued the certificate in terms of Ex.P1
and it contains her signature and also brought the original
before the Court and the same is marked as Ex.P2 and the
entry is marked as Ex.P.2(a) and Ex.P.2(b) is the Xerox.
Her evidence is very clear that on the date of the incident
i.e., 11.11.2010, the victim had attended the school and
categorically deposed that at around 12 O’clock, the
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accused came to the school and she scolded him. She
came to know that in the evening the accused came and
took the victim. In the cross-examination PW.1
categorically deposes before the Court that Kasturba
School provided date of birth to their school and denied all
suggestions with regard to accused No.1 did not come and
enquired about the victim.
38. In the cross-examination, nothing is suggested
with regard to the document of Exs.P-1 and P-2 and even
not disputed the same except suggesting that Ex.P-1 she
only created. To the very genuineness of the document is
concerned, nothing is put to witness – PW-1 in the cross
examination. The prosecution mainly relies upon the
documents at Exs.P-1 and P-2 which clearly discloses the
date of birth of victim as 20.05.1996 and the incident was
taken place on 15.11.2010, which indicates that victim
was subjected to sexual act within the age group of 16
years i.e., 14½ years. There is no denial of date of birth
in the cross-examination of PW-1. Even it is suggested to
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PW-1 that the Kasturba School have provided the date of
birth, which means where the victim girl studied at the
first instance. Now the counsel cannot question that
primary document is not placed before the Court and only
secondary evidence is placed before the Court and the
same is elicited from the mouth of PW-1. It is very clear
that original document which was placed at the first
instance while pursuing the education is produced before
the Court. The fact that date of birth is not denied by the
accused during the course of examination, except
suggesting that she has completed the age of 18, nothing
is found. The very contention of the counsel appearing for
the accused that the evidence of PW-2 is very clear with
regard to the age gap between himself and his sister
clearly discloses that victim was aged about 20 years
cannot be accepted. This Court has to take note of
documentary evidence available on record that too which
came into existence prior to the incident i.e., at the time
admission. The very contention of counsel that the
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evidence of PW-2 has to be relied upon cannot be
accepted, when there is no denial regarding the date of
birth provided by Kasturba School.
39. It is also important to note that it is rightly
pointed out by the Additional State Public Prosecutor that
during the course of cross-examination of PW-11/father,
nothing is suggested to extract the answer regarding date
of birth of the victim and he is the right person to speak
about the age and not PW-2 and he has categorically
stated that victim was 14 years and denied the suggestion
that victim was not aged 14 years.
40. It is also important to note that the counsel
appearing for the accused relied upon several decisions
with regard to the proof of age is concerned. He also
brought to notice of this Court Rule 12(3) of Juvenile
Justice (Care and Protection of Children) Rules 2007 is
applicable in determining the age of the victim in the
absence of any documentary proof, even medical opinion
also could be considered. Having considered the proviso to
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Rule 12 (3) is also no doubt, the documentary proof of
birth certificate or other documentary evidence could be
relied upon to determine the age of the victim girl. In the
case on hand, there is no birth certificate, but the fact is
that victim was admitted to school and while admitting
given the date of birth and same was also entered in the
school records and as pointed out by PW-1 that she has
received the certificate from the concerned school in which
she was admitted to school. Hence, the same cannot be
secondary evidence as contended by the counsel by
relying upon the decisions.
41. It is also important to note that in the case on
hand, there is no denial of document Exs.P-1 and P2 that
no such document was received from the Kasturba School
and also no document was placed before the school
authority to enter the date of birth. When such being the
case, the Trial Court also taken a note of Section 35 of
Evidence Act.
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42. It is also important to note that when there is
no denial of documents at Exs.P-1 and P2, in the cross
examination, very contention that said document is not
admissible cannot be accepted. It is also important to note
that during the course of cross-examination also no such
suggestions were made that it is a secondary evidence and
the same is not admissible.
43. No doubt, the counsel appearing for the
accused brought to notice of this Court the decision in
P.Yuvaprakash’s case supra and in that case, discussion
was made with regard to invoking of POCSO Act, as well
as Juvenile Justice Act 2015 and so also Section 94 of the
J.J.Act, wherever the dispute with respect to the age of a
person arises in the context of her or him being a victim,
the courts have to take recourse to the steps indicated
in Section 94 of the JJ Act. Section 94(2)(i) mandates date
of birth certificate from the school or matriculation or
equivalent certificate by the concerned examination and
Board has to be firstly preferred in the absence of which,
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the birth certificate issued by the Corporation or Municipal
authority.
44. In the case on hand, no doubt, no such birth
certificate is issued by the Corporation and there is no
matriculation certificate as the victim has not got the
matriculation examination. The only document available is
the entry made in the school at the time of admission and
we have already pointed out that the very document when
the same was marked before the Trial Court as Exs.P-1
and P2, they were not disputed and even it is elicited from
the mouth of PW-1 that the said document was received
from the original school where she has studied. In the
case on hand also no doubt there is no ossification test,
but the Doctor who has been examined as PW-13
categorically deposed before the Court that victim is at the
age of 17 to 18. Nothing is elicited from the mouth of PW-
13 also disputing her age during the course of cross-
examination regarding the age spoken by PW-13 and only
suggestion was made with regard to the tear of hymen
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and even the age deposed by PW-13 is also not disputed.
This clearly shows that victim was a minor as on the date
of incident. Even in the cross-examination of PW-1 and
also PW-13, the age is not disputed, so also even in the
cross-examination of PW-11-father. In absence of any
dispute, the very contention raised by the accused in the
Appellate Court that same is not admissible cannot be
accepted. Hence the decision in P.Yuvaprakash’s case
relied upon by the counsel for the accused cannot come to
the aid of accused.
45. The counsel also mainly relied upon the decision
in Razak Mohamed‘s case supra and brought to notice of
this Court, the discussion was made in paragraph No.5
that nothing hinges on the document exhibited by the
prosecution as Ex.P-5 as that is the consequential
certificate issued on the basis of the entries and mother of
the prosecutrix who had allegedly signed Ex.P.5 has not
been examined by the prosecution. No such circumstances
also comes to the aid of accused in the case of hand and
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also the document of age proof came from original school
from where the victim had studied and the same is
emerged during the course of evidence of PW.1. Hence,
this decision also will not come to the aid of accused.
46. The counsel also relied upon the decision of the
learned Single Judge in Crl.A.No.577/2013 and brought to
notice of this Court at paragraph No.8 wherein learned
Single Judge relied upon the decision in Sunil‘s case supra
regarding age of victim is concerned. Wherein a discussion
was made with regard to the case when the father of the
prosecutrix was not able to give correct date of birth of the
prosecutrix. But in the case on hand, date of birth
document is placed before the Court in terms of Exs.P.1
and Ex.P.2 and same is not disputed. Hence, the said
decision also will not come to the aid of accused. No
doubt, the counsel also brought to notice of this Court the
discussion made in paragraph No.21 of the judgment,
wherein learned Single Judge while discussing the same
has taken note of the fact that there being no injuries in
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the private part of girl, but in the case of hand there were
no signs of recent sexual act. But, the evidence of PW.13 –
Doctor is very clear that she was subjected to sexual act
and the evidence of the victim – PW-7 is also very clear
that she was subjected to continuous sexual act and
during course of cross-examination of PW.13 – Doctor
even no suggestion was made to him that she was not
subjected to any sexual act. The judgment which relied
upon by the counsel i.e., Crl.A.No.577/2013 – Mansoor @
Ismail’s case wherein while acquitting the accused, learned
Single Judge made an observation that there were no
injuries in private part as well as no evidence of the victim
that she was subjected to sexual act. Hence, the sad
decision will also not come to the aid of accused.
47. The other contention of the counsel appearing
for accused that in 164 statement victim has not stated
anything about that she was subjected to sexual act. It is
unfortunate that when the defence counsel got confronted
the document as exhibit to that effect as Ex.D1, but victim
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has given an explanation that due to threat caused to her
by accused, she had made such a statement. It is also
important to note that 164 statement is not a substantive
piece of evidence, but in her evidence before the Court the
victim categorically deposed the manner in which she was
subjected to sexual act. When such being the case, the
very contention of the accused counsel that there is no
cogent evidence before the Court that she was not
subjected to sexual act and the very attempt made by the
counsel during the course of cross-examination as to
consensual sexual act is very clear that the victim was
subjected to sexual act. The fact that victim is a minor,
the question of consent doesn’t arise. In terms of
document Exs.P.1 and P.2, victim is aged about only 14½
years. Though counsel appearing for accused would
contend that when PW.13- Doctor deposes before the
Court that victim is aged about 17 and 18 years but
documentary evidence is very clear that she was 14½
years. It is also the contention that there is difference of
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age of two years as stated by PW.2 would come to the aid
of accused also cannot be accepted, when documentary
evidence is clear that victim was 14½ years. Mere absence
of ossification test and the evidence of the Doctor
assessing the age as approximate having considered the
growth of the victim, is not fatal to the prosecution case
when the age is proved by documentary evidence.
48. The trial Court, while considering the material
on record regarding the age of the victim girl is concerned,
has in detail considered the evidence and observed in
paragraph No.13 that the accused has denied the fact that
the victim girl was a minor at the time of the incident. The
trial Court has also taken note of the argument canvassed
before the trial Court that the victim girl had voluntarily
accompanied accused No.1 and stayed with him for a
period of two months. It was contended that the accused
had sexual intercourse with the victim with her consent,
however, in his statement recorded under Section 313 of
Cr.P.C., the accused did not state anything about the
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same. It is also observed in paragraph No.13 that if the
sexual intercourse was consensual, the burden lies on the
accused to prove that the victim was a major at the time
of incident. No material has been placed on record to
prove that she was a major.
49. The trial Court also in detail discussed in
paragraph No.14 by considering the evidence of PW.1 who
had produced the documents at Exs.P1 and P2 and taken
note of the cross-examination of PW.1 regarding the
legality and validity of Exs.P1 and P2. The same was not
denied or disputed by the accused during the course of
cross-examination of PW.1. This Court taken note of the
said fact while discussing the matter. The trial Court also
took note of the fact that the register maintained in the
School is admissible under Section 35 of the Evidence Act,
holding that in the absence of denial of the same by the
accused during the course of cross-examination of PWs.1
and 7, the entries made in Ex.P1 has evidentiary value to
prove the age of the person. The trial Court discussed this
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aspect considering the judgment of the Hon’ble Apex Court
in the case of Birad Mal Singhvi vs. Anand Purohit reported
in AIR 1988 SC 796 relied upon by the learned counsel for
the accused. It is also important to note that while
invoking the principles laid down in the judgment, there
must be a denial of documents at Exs.P1 and P2 and no
suggestion was made to PW.1 to that effect. The
documentary evidence makes it clear that the victim was
minor that too she was aged about 14½ years at the time
of the incident. The trial Court observed that the entry
made in Ex.P2-school admission record along with the
evidence of PW.1 is admissible under Section 35 of the
Indian Evidence Act as it is an official act done during the
course of discharging of duties while admitting the victim
to the school.
50. The trial Court dealt with the matter in detail
particularly, in paragraph No.17 of the impugned
judgment wherein it observed that Rule 12(3) of the
Juvenile Justice (Care and Protection of Children) Rules
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2007 is applicable for determining the age of the victim of
rape. When the trial Court applied its mind and consciously
taken note of the same, this Court, instead of repeating
the same, would like to extract paragraph No.17 of the
judgment of the trial Court, which reads as follows:
“17) It is significant to note that rule 12(3) of the
Juvenile Justice (Care and Protection of Children) Rules,
2007 is applicable in determining the age of the victim of
rape in view of the law laid down by the Hon’ble Supreme
Court of India reported in Mahadeo S/o Kerba Maske Vs.
State of Maharashtra and Anr. (2013) 14 SCC 637 and it is
clearly observed under rule 12(3)(b) that only in the
absence of alternative methods described under rule
12(3)(a), medical opinion can be sought for and the
certificate issued by the school in determining the age of
the prosecutix is relied upon by the Hon’ble Supreme Court
of India. This apart, the Hon’ble Supreme Court of India
has also completely relied upon the date of entry
mentioned in the school register while determining the age
of the victim as it is an authenticated evidence though it is
not available in birth certificate and in absence of school
certificate and birth certificate then only the Court has to go
to the medical opinion in view of the law laid down by the
Hon’ble Supreme Court of India reported in A.I.R. 2004 SC
4404 (State of Himachal Pradesh Vs. Shree Kant Shekarl)
and (2013) 14 SCC 637 stated above. Therefore here in
this case, there is a school record which shows the entry
with regard to the date of birth of victim girl and there is no
denial of the date of birth during the course of the cross-
examination of PWs.1 and 7 who have categorically stated
the same and authenticity of Ex.P.1 and Ex.P.2 did not
denied. Hence the Court has to determine the age of the
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victim girl only on the basis of Rule 12(3) of the Juvenile
Justice (Care and Protection of Children) Rules, 2007,
wherein it is stated that it has to be taken in to
consideration through birth certificate or school certificate
first and in the absence of the same it can make use of
medical opinion evidence which has also been approved by
the Hon’ble Supreme Court of India in the decisions stated
above. Therefore it can safely conclude that the date of
birth of the victim girl is 20-5-1996 on the date of the
incident and thereby the victim girl is less than 16 years at
the time of incident which has been established by the
prosecution beyond all reasonable doubt”
51. Having reassessed the material available on
record and having perused the reasoning of the trial Court,
we do not find any error committed by the trial Court in
accepting the case of the prosecution that the victim girl
was a minor. Though a feeble attempt is made by the
learned counsel appearing for the accused before this
Court with regard to the evidence of PWs.1, 2, 7 and 11,
we do not find any force in the contention that the victim
was a major. Even the evidence of the doctor who has
been examined as PW.13 before the trial Court will not
come to the aid of the accused.
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52. Now coming to the aspect of invoking Section
366A of IPC which states that whoever, induces a minor
girl under the age of 18 years to go from any place or to
do any act by any means of whatsoever, shall be
punishable with imprisonment which may extend to 10
years and shall also be liable to fine. The trial Court failed
to take note of the ingredients of Section 366A of IPC,
which reads as follows.
“[366A. Procuration of minor girl -Whoever, by
any means whatsoever, induces any minor girl under the
age of eighteen years to go from any place or to do any act
with intent that such girl may be, or knowing that it is likely
that she will be, forced or seduced to illicit intercourse with
another person shall be punishable with imprisonment
which may extend to ten years, and shall also be liable to
fine]”
53. The above provision deals with procuration of
minor girl to do an act with intent that such girl may be, or
knowing that it is likely that she will be, forced or seduced
to illicit intercourse with another person. But, here, it is
not the case of procuring of a minor girl for subjecting her
to sexual intercourse with another person. The trial Court
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has lost sight of Section 366A of IPC while invoking the
same.
54. Having perused the material on record and the
case of the prosecution that the accused took the minor
girl, and though she accompanied the accused, it has
emerged during the course of evidence that she did not
resist the same, but for the threat caused by the accused.
Considering this, the Court has to examine the provisions
of Section 359 of IPC which deals with kidnapping.
However, having considered the material on record, this
Court deems it appropriate to extract Section 361 of IPC
which reads as follows:
“361. Kidnapping from lawful guardianship-
Whoever takes or entices any minor under [sixteen] years
of age if a male, or under [eighteen] years of age if a
female, or any person of unsound mind, out of the keeping
of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship.
Explanation- The words “lawful guardian” in this
section include any person lawfully entrusted with the care
or custody of such minor or other person.
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Exception- This section does not extend to the act of
any person who in good faith believes himself to be the
father of an illegitimate child, or who in good faith believes
himself to be entitled to lawful custody of such child, unless
such act is committed for an immoral or unlawful purpose.”
55. Having read this penal provision, it is clear that
whoever takes or entice any minor girl under the age of 16
years of age if a male and 18 years of age if a female is
said to kidnap from lawful guardianship. In the case on
hand, having taken note of date of birth of the victim, she
was below the age of 16 years and she was taken out of
the keeping of the lawful guardian of such minor or person
of unsound mind, without the consent of such guardian, is
said to kidnap of such minor.
56. From reading of the above provision, it is clear
that inducement must be taken note and taking the minor
girl below the age of 18 years from lawful guardianship. It
is clear that the accused had induced minor girl to leave
her lawful guardianship, not only taken the girl who is
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below the age of 16 years but also gave a shelter to her in
an unknown place and subjected her for sexual act. On
plain reading of this provision, the consent of a minor who
is taken or enticed is immaterial; it is only the guardian’s
consent which takes the case out of purview. Then the
question of kidnapping does not arise. It is clear that
taking the victim or enticing the victim must be shown to
have been by means of force or fraud. Hence, it is relevant
to refer to the provisions of Section 363 of IPC, when the
ingredients of Section 361 of IPC are complete. This Court
would like to rely upon Section 363 of IPC which reads as
follows:
“363. Punishment for kidnapping- Whoever kidnaps any
person from [India] or from lawful guardianship, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable
to fine.”
57. Having perused the above provision and
conjoint reading of Section 361 of IPC and Section 359 of
IPC, it is very clear that whoever kidnaps any person from
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the lawful guardianship, shall be punished with
imprisonment of either description for a term which may
extend to 7 years and shall also be liable to fine. Hence,
the trial Court misread Section 366A of IPC and convicted
the accused for the offence punishable under Section 366A
of IPC instead of Section 363 of IPC. Now, this Court has
to modify the impugned judgment of conviction and order
of sentence in respect of an offence under Section 366A of
IPC and has to convict the accused for the offence
punishable under Section 363 of IPC instead of Section
366A of IPC.
58. Now the question that arises before this Court
is as to whether the accused could be convicted and
sentenced invoking Section 363 of IPC. The same is
permissible if the penal provision invoked is higher than
the modified provision. The offence under Section 366A of
IPC is punishable with imprisonment which may extend to
10 years and shall also be liable to fine, whereas, the
offence under Section 363 of IPC is punishable upto 7
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years and the same is lesser than the punishment
prescribed in Section 366A of IPC. Therefore, this Court
can modify the impugned judgment of conviction and
order of sentence in terms of Section 216 of Cr.P.C., as
the same is not involving in any miscarriage of justice to
the accused.
59. Now coming to the aspect of offence under
Section 376 of IPC. The trial Court taken note of the
provision of Section 376 of IPC in paragraph No.19 and
also taken note of the evidence available on record.
Having re-assessed both oral and documentary evidence
available on record particularly, we have taken note of the
evidence of the victim girl who has deposed the manner in
which she was subjected to sexual act and taken note of
the evidence of PW.13-doctor who categorically deposed
that though there are no signs of recent sexual act, but
victim was subjected to sexual act. During the course of
cross-examination of the doctor, it is not suggested to
PW.13 that the victim was not subjected to sexual act
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except making suggestion that there may be possibility of
hymen rupture due to cycling. The doctor says that there
is chance of hymen not being in intact. PW.7 victim girl
categorically deposed that she was subjected to sexual act
and nothing is elicited during the course of cross-
examination to disbelieve her evidence and as we have
already pointed out, in the cross-examination of PW.13
also, the accused not disputed the evidence of the doctor
that the victim was subjected to sexual act. The learned
counsel for the accused also not disputed the fact that the
victim was taken to a particular place at Puna, stayed in
the said place and both of them were captured by the
police at the very same place and brought her back and
subjected the victim to medical examination. The medical
examination report indicates that the victim was subjected
to sexual act. It is not the case of only the hymen tear
but, it is a clear case of subjecting the victim for sexual
act. As we have already pointed out, as per medical
evidence as well as the consistent evidence of PWs.7 and
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13, it is a clear case of subjecting the victim for sexual act
and also material which we have analyzed before the
Court is clear that she was 14½ years old and below the
age of 16 years. Hence, the very contention of the learned
counsel appearing for the accused that the Court can take
note of two years on either side to give the benefit in
favour of the accused does not arise.
60. In the case on hand, when the documentary
evidence is very clear that the victim is below the age of
16 years, the question of considering the contention of the
learned counsel for the accused that this Court can extend
the benefit of doubt considering the evidence of the
doctor-PW.13 that the victim is aged about 17 or 18 years,
does not arise. Hence, we do not find any force in the
arguments of the learned counsel appearing for the
accused. We also do not find any error committed by the
trial Court in invoking Section 376 of IPC. Therefore, we
answer the point for consideration partly in affirmative.
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61. In view of the discussions made above, we pass
the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment of conviction and
order of sentence dated 17.06.2016
passed in Sessions Case No.85/2012 by
the Court of the District and Sessions
Judge, Yadgiri convicting the accused for
the offence punishable under Section
366A of IPC is set aside. The accused is
convicted for the offence punishable under
Section 363 of IPC and sentenced to
undergo simple imprisonment for a period
of five years and to pay a fine of
Rs.10,000/-, in default, to undergo simple
imprisonment for a period of six months.
iii. The impugned judgment of conviction and
order of sentence passed by the trial
Court convicting the accused for the
offence punishable under Section 376 of
IPC is confirmed.
iv. Both sentences shall run concurrently.
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v. The accused is on bail. Hence, the trial
Court is directed to secure him within one
week from the date of receipt of a copy of
this judgment and subject him for
sentence.
Sd/-
(H.P.SANDESH)
JUDGESd/-
(T.M.NADAF)
JUDGENB
List No.: 1 Sl No.: 28
CT:NI