SRI KRISHNA G A vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
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CRL.A No. 808 of 2019
CNR: KAHC010127612019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 16 DAY OF OCTOBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE B.PRAMOD
CRIMINAL APPEAL NO. 808 OF 2019 (C)
BETWEEN:
SRI. KRISHNA G.A.
S/O LATE ANNAIAH,
AGED ABOUT 33 YEARS,
OCC: COOLIE,
R/O GANGAVARA VILLAGE,
SHANIVARASANTHE HOBLI,
SOMWARPET TALUK,
KODAGU-571 236.
…APPELLANT
(BY MR. NISHAN UNNI P., ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY THE CPI.,
SOMWARPET CIRCLE,
KODAGU DISTRICT-571 236,
REP. BY SPP,
HIGH COURT,
BENGALURU.
…RESPONDENT
(BY SRI. VIJAYKUMAR MAJAGE, SPP-II A/W
SRI. SUDHINDRA B.S., HCGP)
Digitally
signed by
LAKSHMI T
Location:
High Court
of Karnataka
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CRL.A No. 808 of 2019
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THIS CRL.A. IS FILED U/S 374(2) OF CR.P.C., PRAYING
TO SET-ASIDE CONVICTION U/S 376(2)(i)(n), 504, 324, 506
OF IPC AND SECTION 4 & 6 OF POCSO ACT AND SENTENCE
DATED 22.10.2018 PASSED BY THE PRL. SESSIONS JUDGE,
KODAGU AT MADIKERI IN S.C.NO.55/2018, AND ACQUIT THE
APPELLANT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR. JUSTICE B.PRAMOD
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)
This appeal is preferred by the accused against his
conviction and sentence passed by the Court of the
Principal Sessions Judge, Kodagu at Madikeri in Special
Case (POCSO) No.55/2018, for the offences punishable
under Section 376(2)(i) and (n), 504, 324 and 506 of IPC
and Section 4 and 6 of the POCSO Act, 2012.
2. The trial Court has sentenced the accused to
undergo rigorous imprisonment for life, which shall mean
imprisonment for the remainder of his natural life and to
pay fine of Rs.20,000/-, in default, to undergo
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CRL.A No. 808 of 2019
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imprisonment for 3 years, for the offence punishable under
Section 376 (2)(i) and (n) of IPC. Further, sentenced him
to undergo imprisonment for 6 months for the offence
punishable under Section 504 of IPC; to undergo
imprisonment for 1 year for the offence punishable under
Section 324 of IPC; to undergo imprisonment for 1 year
for the offence punishable under Section 506 of IPC; to
undergo imprisonment for 7 years and to pay fine of
Rs.10,000/- in default, to undergo imprisonment for 1
year for the offence punishable under Section 4 of the
POCSO Act, 2012 and to undergo imprisonment for 10
years and to pay fine of Rs.10,000/- in default, to undergo
imprisonment for 2 years for the offence punishable under
Section 6 of the POCSO Act 2012.
3. Heard the arguments of the learned counsel for
the appellant, learned SPP-II for the State and perused
the evidence and material on record.
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CRL.A No. 808 of 2019
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4. Brief facts of the case:- The complainant and
the accused are husband and wife. The victim girl (PW7)
and PW8 are their children. The victim girl is a minor aged
about 10 years. They were residing in a single house
situated in Gangavara Village, Shanivarasanthe Hobli,
Somwarpet Taluk, Kodagu. On 29.10.2017, the
complainant had gone for coolie work. In the afternoon at
about 12.30 hours, the accused asked his minor daughter
(victim) to serve him food. When she went inside the
house and gave water to the accused, he dragged her and
committed forcible sexual intercourse. When the victim girl
cried due to pain, PW8, son of the accused came inside the
house and questioned him, at that time the accused
abused and sent him outside. He threatened the victim
girl that he would kill her if she revealed the incident to
others. The complainant returned to the house in the
evening and noticed her daughter bleeding in her vagina.
She thought that her daughter had attained puberty,
hence, kept quite. Thereafter, on enquiry, the victim
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CRL.A No. 808 of 2019
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revealed to her about the act committed by her father.
When this was questioned, the accused assaulted the
complainant with hands and also with a burning firewood
stick causing injuries to her and also gave her life threat.
Since the bleeding had not stopped, on 27.11.2017, the
complainant took her minor daughter to the Government
Hospital, Madikeri. Thereafter, a complaint was lodged, on
the basis of which a case was registered against the
accused. On completion of the investigation, charge sheet
was filed.
5. The trial Court framed the charges against the
accused for the offences punishable under Section 376
(2)(i) and (n), 504, 324, 506 of IPC and Section 3, 4 r/w
Section 6 of the POCSO Act, 2012. To establish its case,
the prosecution got examined 15 witnesses and got
marked 32 documents and 6 material objects. The accused
denied all the incriminating evidence appeared against
him, while he was examined under Section 313 Cr.P.C.
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Vide impugned judgment and order, the trial Court
convicted and sentenced the accused as noted supra.
6. The learned counsel for the appellant contended
that there is in ordinate delay in lodging the complaint and
due to the matrimonial discord between the complainant
and accused, a false case was foisted against him. He
contended that there are discrepancies and improvements
in the evidence of PWs.6 and 7 and even the FSL report
does not support the prosecution case.
7. The learned counsel further contended that as
per the case of the prosecution, the incident had taken
place about one month prior to the date of complaint and
it is also alleged that even 2 days before lodging of the
complaint, the accused had committed sexual act on the
victim girl. However, there is no charge framed to the
effect that the accused had committed sexual act on the
victim two days prior to lodging of the complaint and the
said circumstance was also not put to the accused during
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his examination under Section 313 Cr.P.C. Hence, the trial
Court was not justified in holding that the prosecution has
proved the charges leveled against the accused.
8. Per contra, the learned SPP-II contended that
the accused is none other than the father of the victim
girl. Due to fear and the threat posed by the accused,
complaint was not lodged immediately. He contended that
the victim girl and her mother have supported the case of
the prosecution and their evidence is corroborated by the
evidence of PW8 as well as the medical evidence. He
contended that the prosecution by adducing cogent and
reliable evidence has established the charges leveled
against the accused and the trial Court has rightly
convicted the accused for the said charges. Therefore,
sought to dismiss the appeal.
9. The victim girl is the daughter of the accused
and the complainant (PW6). She was aged about 10 years
at the time of incident. In her complaint, PW6 has stated
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that her daughter was aged 10 years and she was
th
studying in 5 standard at Government Primary School at
Ankanahalli. PW3, teacher of the said school has issued
Ex.P2, the age certificate wherein, the date of birth of the
victim is mentioned as 15.10.2007. The defense has not
disputed the said document and the age of the victim.
Hence, the prosecution has proved that the victim was a
minor aged about 10 years at the time of incident.
10. The law was set into motion by PW6, wife of the
accused and mother of the victim. Ex.P6 is the complaint.
A perusal of the complaint averments reveal that about a
month prior, the complainant noticed blood in the under
garments of her daughter. After about 3, 4 days she
noticed some white discharge from the vagina. When she
enquired with her daughter, she revealed about the act
committed by the accused. She has stated that, she did
not disclose the incident to anyone, fearing that it would
affect the future of her daughter. She took her daughter
to Government Hospital, Madikeri, wherein, she was asked
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to come again on the next day. When she returned home,
the accused questioned as to why they had gone to the
hospital and assaulted her and caused injuries to her. She
has further stated that about 15 days prior, when she was
talking to her daughter, the accused had assaulted her
with a burning firewood stick.
11. The victim girl gave the history, when she was
examined by the doctor-PW14, narrating the act
committed by the accused. As per the said history, the last
incident was on 25.11.2017 around 10:00 a.m., which is 2
days prior to the date of complaint. However, it is relevant
to see that in the complaint it is not alleged that 2 days
prior, the accused had committed sexual act on the victim
girl. There is also no charge framed to that effect. The
charge is with regard to the sexual assault committed on
the victim on 29.10.2017 and the assault on the
complainant on 27.11.2017.
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12. The complainant examined as PW6 has
reiterated the complainant averments. She has stated
regarding her daughter revealing the incident to her. She
has also deposed about the accused assaulting her
questioning as to why she had taken the victim to the
hospital. The complainant and the victim have shown the
spot where the incident had taken place. The spot
mahazar is marked as Ex.P8. In the cross examination,
PW6 has deposed regarding her daughter revealing to her
about the accused committing sexual intercourse on her
once. She has denied the suggestion that the accused had
not committed sexual intercourse on her daughter.
13. The victim girl has been examined as PW7. She
has stated about the act committed by the accused and
later revealing the incident to her mother. She has
withstood the cross examination and denied the
suggestion that the accused had not committed sexual
intercourse on her.
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14. PW8 is the son of the accused and the
complainant. His evidence goes to show that he saw his
father lying over his minor sister and on questioning, he
was abused and threatened by his father (accused). He
has stated that two weeks thereafter, his father assaulted
his mother with a burning firewood stick.
15. We have perused the evidence of PW.14-
Doctor, who conducted the medical examination of the
victim girl on 28.11.2017. He has deposed regarding the
history furnished to him by the complainant and the victim
girl. On examination of the victim, he found that there
was an old thick bite mark on chest, hymenal tail present,
redness echymosis all around the tailed area, aged about
48 hours to 72 hours. He has opined that there was a
fresh hymenal injury. Based on the FSL report, he gave his
opinion that there are no signs suggestive of vaginal or
anal intercourse, but there is evidence of genital assault.
He has stated that the genital assault means, there is
penetration but there is no full penetration on account of
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age factor of the victim and FSL report absence of
spermatozoa. His report is marked as Ex.P7. The FSL
report is marked as Ex.P31. We have perused EX.P7,
wherein it is mentioned that there is a tear all around and
the hymen was ruptured.
16. In the cross examination, PW14 has stated that
when he examined the victim girl, she had not attained
majority and he had written the same in the report –
Ex.P7. Further stated that he had written about rupture of
hymen and admitted that for different cause also there is
possibility of hymen rupture, but volunteered that main
cause is intercourse. In his cross-examination, he has
stated that as per Ex.P31 there are no signs suggestive of
vaginal or anal intercourse, but there is evidence of genital
assault. He has stated that the hymen rupture was a fresh
injury and that the said injury was on the process of
healing and in order to heal, the injury requires more than
72 hours.
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17. PW13 is the doctor who examined the
complainant on 28.11.2017. He has noticed the following
injuries:
1) Contusion over left fore arm 6 x 4 cm in size.
rd
2) Small contusion over left leg in the middle 1/3 .
3) Contusion over head on lateral side 4 x 2 cm in
size.
4) Tenderness over left shoulder.
rd
5) Old burnt wound over middle 1/3 of left forearm.
18. PW13 has opined that the above injuries are
simple in nature. He has issued a medical certificate,
marked as Ex.P29. He has further stated that injuries
Nos.1 to 4 could be caused by MO1.
19. On an overall appreciation of the evidence and
material on record, we find that the accused has
committed an act of penetrative sexual assault on his
minor daughter and also threatened her and also
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assaulted the complainant and caused simple injuries to
her.
20. The trial Court has sentenced the accused for
the offences punishable under Section 376 (2)(i) (n) of IPC
as well as under Section 4 r/w Section 6 of the POCSO Act,
which is not warranted, in view of Section 42 of the
POCSO Act, 2012. He is liable to be sentenced for the
offence punishable under Section 376 (2)(i) of IPC.
21. The incident took place in the year 2017. The
accused was arrested on 28.11.2017, and he has been in
custody since then. He has undergone more than 10 years
of imprisonment. He has no criminal antecedents. Hence,
the sentence imposed against the accused can be reduced.
Accordingly, the following:
ORDER
(i) Appeal is allowed in part.
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CRL.A No. 808 of 2019
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(ii) The judgment and order passed by the Court of
Prl. Sessions Judge, Kodagu at Madikeri in Special Case
(POCSO) No.55/2018 convicting the accused for the
offence punishable under Section 376 (2)(i), 504, 324 and
506 of IPC and Section 4 and 6 of the POCSO Act, 2012 is
confirmed.
(iii) The sentence imposed for the offence
punishable under Section 4 and 6 of POCSO Act is set
aside.
(iv) Sentence imposed for the offence punishable
under Section 376 (2)(i)(n) is modified.
(v) The accused is sentenced to undergo rigorous
imprisonment for a period of 10 years and to pay a fine of
Rs.25,000/-, in default of payment of fine, shall undergo
SI for a period of 2 years.
(vi) The sentences imposed for the offences
punishable under Section 504, 324 and 506 of IPC are
confirmed.
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(viii) All the sentences shall run concurrently.
The direction issued by the trial Court to the District
Legal Services Authority to consider grant of compensation
to CW2 (PW7) shall remain. The District Legal Services
Authority, Kodagu, shall pay compensation to the victim, if
not already paid, within 3 months from the date of receipt
of a copy of this order.
Registry to communicate the order to the jail
authority and the Member Secretary, DLSA, Kodagu.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(B.PRAMOD)
JUDGE
HB
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