Karnataka High Court
State Of Karnataka vs Laxmi @ Anjana W/O. Rajappa on 25 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-D:10563-DB
CRL.A No. 100467 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100467 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
VIDYAGIRI POLICE STATION,
DHARWAD, DIST: DHARWAD,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
AND:
Digitally signed
by GIRIJA A 1. LAXMI @ ANJANA
BYAHATTI
Location: HIGH W/O. RAJAPPA LAGAMESHWAR ALIAS RAJAPUT,
COURT OF
KARNATAKA AGE: 35 YEARS, OCC: HOME MAKER,
R/O: HEBBALLI, TQ: DHARWAD,
DIST: DHARWAD, NOW AT GUTAGUDDI,
TQ: HUKKERI, DIST: BELAGAVI-591313.
2. RAJAPPA S/O. RAMAPPA LAGAMESHWAR,
AGE: 30 YEARS, OCC: SECURITY GUARD,
R/O: GUTAGUDDI, TQ: HUKKERI,
DIST: BELAGAVI-591313.
... RESPONDENTS
(SRI. SRINIVAS B. NAIK, ADVOCATE FOR R1 AND R2;
SRI. S.S. DODDALINGANNAVAR, ADVOCATE FOR PW.1)
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NC: 2024:KHC-D:10563-DB
CRL.A No. 100467 of 2019
THIS CRIMINAL FIRST APPEAL FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE AND GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 17.06.2019 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE
DHARWAD IN SPL.S.C.19/2018 AND CONVICT THE RESPONDENTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 366A,
341, 376 R/W SECTION 34 OF IPC AND UNDER SECTION 4 AND 6 OF
POCSO ACT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.06.2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA) In this appeal, the State has challenged the judgment dated 17.06.2019 in Special S.C.No.19/2018 passed by the II Additional District and Sessions and Special Judge, Dharwad ('the Trial Court' in brevity), in acquitting the accused of the offences punishable under -3- NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 Sections 366A, 341, 376 read with Section 34 of IPC and Sections 4 and 6 of the POCSO Act.
2. Appellant/State was the complainant and respondents were accused before the Trial Court. For the sake of convenience, the parties shall be referred as per their status before the Trial Court.
3. In brief, the case of the prosecution is, the accused Nos.1 and 2 are husband and wife. The victim is relative of accused No.1. The victim is a minor and she was studying in a College at Dharwad. On 02.01.2018 at 10.00 a.m., the victim came down to Dharwad from her village, alighted near the Head Post Office and while she was going to the College by walk along with her friends (CW-19/Suchitra and PW-16/Nethra) accused No.1 met her and invited her to go to Hotel for tea. When the victim refused to accompany her, she forcibly took her to a Hotel located near Tahsildar office and provided her breakfast. When victim came out of hotel, she felt dizziness, at that time, accused No.2 came in a motorcycle and both -4- NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 accused Nos.1 and 2 forcibly took her in the motorcycle on the pretext of going to their village.
3(a) On the way, the victim realized that the accused are not taking her to their village, but they are taking her somewhere else. She questioned the accused why they are taking her elsewhere. She was convinced that they are going to Saundatti Yellamma Temple and after pooja, they will go to their village. At about 1.00 p.m., both the accused took the victim to Saundatti Yellamma Temple where she resisted and screamed that she wants to go back to her village. Accused No.1 promised her to drop in her village. Instead of dropping to her village, at 3.00 p.m., the accused took her to a house situated in a field at Paschapur village and reached there at 6.30 p.m. Accused No.1 offered dinner to the victim; when she refused, she was induced to take dinner and thereafter she prepared bed in their kitchen and asked her to sleep as she will be taken back to their village in the morning.
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 3(b) At about 11.30 p.m., accused No.2 came inside the house; accused No.1 went out by locking the door from outside. Thereafter, accused No.2 touched the victim and forcibly removed her clothes and committed forcible sexual intercourse about three times. On the next day morning at 9.00 a.m., accused No.1 came to the house and told the victim that she should not disclose this to anybody and offered her gold and money. Thereafter both the accused took the victim from Paschapur to Hirebagewadi at about 11.00 a.m., gave money and asked her to reach home. After reaching home, the victim kept quiet due to shock. Four days thereafter she informed the incident to her parents, who after discussion lodged a complaint to the Police, thereupon the case was registered setting the law into motion.
4. Accused Nos.1 and 2 were arrested; both accused and the victim were subjected to medical examination and on completion of the investigation, charge sheet came to be filed. Before the Sessions Court, -6- NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 accused stood for trial. Accused pleaded not guilty of charges under Sections 366A, 341, 376 read with Section 34 of IPC and Sections 4 and 6 of the POCSO Act.
5. Prosecution in order to bring home the guilt of the accused has chosen to examine 27 witnesses as PWs-1 to 27, marked 34 documents as per Exs.P1 to P34 and 6 Material Objects as per M.Os.1 to 6. The accused were questioned under Section 313 of Cr.P.C. The accused denied the version of the prosecution. After hearing both sides, the Trial Court by the impugned judgment acquitted both accused of the charged offences. Assailing the order of acquittal, the State has filed this appeal on various grounds.
6. We have heard the arguments of Sri.M.B.Gundawade, Additional SPP for the State and Sri.Srinivas B.Naik, learned counsel for the accused and Sri.S.S.Doddalingannavar, learned counsel for the victim. -7-
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7. It is contended by the learned Additional SPP that, PW-1/victim has specifically given evidence narrating the events that have taken place near Taluka Office, Dharwad, where accused No.1 took her to the hotel, in the motorcycle of accused No.2, their visit to the Saundatti Yallamma Temple, taking her to the farmhouse where the accused No.1 confined her inside the house, allowed accused No.2 inside, locked the house from outside facilitating accused No.2 to commit rape. Sole testimony of the victim is sufficient to convict the accused persons. The evidence of the witnesses is reliable but the Trial Court did not take into consideration the testimony of the victim. The Trial Court has observed that the delay in filing the complaint is fatal but when there is valid explanation for the delay, the Court has to accept the same. Soon after the incident, the victim was under
shock, she could not be able to inform her parents, only after self consoling herself, she detailed the alleged incident to the parents and immediately the complaint was filed. The Trial Court has not appreciated the medical -8- NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 evidence, without any contradiction and omission extended the benefit of doubt in favour of accused. The evidence placed before the Trial Court is sufficient to explain the ingredients of the offence and sought for reversal of the impugned judgment.
8. Learned counsel appearing for the victim supported the arguments of the learned Addl. SPP that sufficient evidence is available on record to explain the incident and also the ingredients of the offence and therefore, the impugned judgment is erroneous and it requires modification.
9. Per contra, learned counsel for the accused has contended that though the prosecution has examined as many as 27 witnesses, there are no eyewitnesses to the incident except the self serving testimony of the victim. The evidence of the victim is not inspiring the confidence of the Court, the entire narration of the evidence clearly shows several lacunas. The medical evidence is not in support of the prosecution. There is no evidence to show -9- NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 that the accused have kidnapped the victim or accused No.2 committed sexual assault on the victim. The age of the victim is more than 18 years and her age is not proved by examining the concerned authorities of the school. PW- 17 is the President of the school who has no authority to deal with the school records and his evidence cannot be relied. When the victim was sent for medical examination, she was subjected dental and radiological examination, which speak that on the date of alleged incident, the victim was aged more than 18 years. Even if the testimony of PW-1 is accepted that she went along with the accused on her own, there is no evidence in proof of alleged sexual assault. Hence, the Trial Court has rightly appreciated the defence holding that the prosecution has failed to bring home the guilt of the accused, extended the benefit of doubt and supported the impugned judgment.
10. We gave our anxious consideration to the arguments addressed on behalf of both the parties and also perused the material on record.
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019
11. The accused are charged with the offence punishable under the provisions of the POCSO Act. Firstly, the prosecution has failed to prove the age of the victim as less than 18 years. Apart from the testimony of victim and her parents who are examined as PW-2 and PW-13, the prosecution relied upon the evidence of PW-17 the President of the school where the victim was studying whose evidence point out that the victim was a student of her college and in the school records, her date of birth is mentioned as 13.03.2001 and to this extent, she has issued admission extract and study certificate as per Exs.P-21 and P-22. If the evidence of PW-17 is to be appreciated, then age of the victim on the date of incident will be less than 18 years.
11(a) The prosecution has also examined PW-26, the Medical Officer. We have perused his testimony, who has deposed about the examination of victim on 15.01.2018 and issuing of report under Ex.P-33 that victim has been examined by the gynecologist, dentist, radiologist and physiatrist and the opinion of the dental surgeon indicates
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 the age of the victim is 16 to 18 years and the radiologist gave opinion that victim is aged 18 to 20 years.
11(b) According to the prosecution, the age of the victim on the date of the incident was 17 years. The medical report at Ex.P-33 indicates the age range of the victim is between 16 to 20 years. PW-17 the President of Niduvani PU College issued Exs.P-21 and P-22 at the request of Vidyanagar Police. Her cross-examination goes to show that Ex.P-21 is not the document belonging to her College as it was issued by Kamalabai Narayanarao Kabbur Girls' High School, Dharwad. Mere production of Ex.P-21 through PW-17 will not suffice to prove the contents of Ex.P-21. Ex.P-21 was issued after completion of 10th standard by the victim. Ex.P-22 is based on Ex.P-21. The concerned Head Master or Teacher who handled Exs.P-21 and P-22 are not examined before the Court. The President of the College has no knowledge about the admission of the children to the school. In what way she is having knowledge about the college records, is not explained. On the basis of such evidence of PW-17, it is
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 very difficult to accept that the prosecution is able to prove the age of the victim was 17 years as on the date of incident.
12. The prosecution examined PW-16-classmate of the victim in order to explain that the victim was kidnapped by the accused on the alleged date of incident.
13. We have perused the testimony of PW-16, the friend of the victim. Her evidence shows that on 02.01.2018 at 10.00 a.m., when she and the victim were going near Head Post Office, accused No.1 met the victim and took her to have breakfast along with her. Though he was told that the victim will come to college after the breakfast but she did not come to the College. PW-16 went home under the impression that the victim might have accompanied accused No.1. Two days after the incident, she was informed about these aspects to the police. Her cross-examination points out that the accused No.1 has not taken the victim forcibly but victim herself had gone with the accused. The victim introduced accused
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 No.1 as her aunt. This explains that victim had voluntarily accompanied accused No.1 to the hotel and after breakfast she went on her own.
14. PW-1 is the star witness to the case and author of Ex.P-1, complaint. We have perused the averments made in the complaint. It narrates that on 02.01.2018 the victim left the house and went to the college, alighted near the Head Post Office along with PW-16. On that day, accused No.1 being a distant relative was present near the Head Post Office. She approached the victim to join her for breakfast and tea. Though the victim refused, accused No.1 forced her holding her hands. Hence, she accompanied her to the hotel near Tahasildar Office and had breakfast along with accused No.1. When they came out of the hotel, accused No.2 came in his splendor motorcycle and though she was not interested, she was forced to accompany them in the motorcycle. At about 1.00 p.m., she was taken to Saundatti Yallamma Temple, where she resisted but she was forced to take the Darshan
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 in the temple and thereafter, she was taken in the motorcycle to the house of accused. They reached his house in the evening and she was forced to stay in the house. At 9 O' clock, accused No.1 arranged a bed for her in the kitchen, asked her to sleep telling that she will be sent home in the morning. At 11.30 p.m., accused No.2 came inside the kitchen, accused No.1 went out by locking the door from outside. Accused No.2 misbehaved with her, disrobed her and committed sexual assault 3 times. On 03.01.2018 at 9.00 a.m. the victim was offered with gold and money and informed that she should not inform the incident to anybody. At about 11.00 a.m., she was dropped at Hirebagewadi asking her to go home. She returned home with shock, was silent for about 4 days. Thereafter, she revealed the incident to her parents, she was taken to the police station to file complaint and thereafter she was taken to hospital for medical examination.
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15. We have also perused the evidence of PW-1. Her testimony shows that she was born on 13.03.2001 and in the year 2018 she was 17 years old. Accused No.1 is her distant relative and on 02.01.2018 when she went near the college along with PW-16, accused No.1 approached her, took her to the hotel and after breakfast, took her in the motorcycle of accused No.2 to Saundatti Yallamma Temple. From there, she was taken to the farmhouse of the accused and forced to stay in the kitchen of said house. In the night at 11.30 p.m., accused No.2 ventured into kitchen, he forcibly touched her body, removed her clothes and committed sexual assault 3 times. In the morning she was dropped at Hirebagewadi by paying Rs.200/- asking her to go home. She was warned not to disclose the incident to anybody. Hence, she kept quiet for four days and thereafter she informed the incident to her parents.
15(a) The cross-examination of PW1 has demonstrated that accused No.1 was not very familiar and she was not visiting the house of the victim. PW-1 did not
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 tell why she accompanied accused No.1 to the hotel then to Saundatti Yallamma Temple and then to the farm house. During transit, she neither objected for being carried by the accused forcefully nor she asked anybody to help her from the clutches of the accused.
15(b) As we discussed above, the age of the victim is under cloud. The evidence of PW-16 indicates that PW-1 went along with accused No.1 on her own.
16. Now the points that arise for our consideration is whether the testimony of PW-1 can be the sole basis for conviction? And Whether her testimony is reliable?
16(a) In this regard the evidence of Medical Officer is very relevant as referred above. We have perused the testimony of PW-26-Medical Officer. He has only consolidated the reports of the gynecologist, dentist, radiologist and physiatrist in issuing Ex.P-33-report. According to him, his report is based on the opinion of other doctors who have examined the victim. He is clear and definite that at the time of examination there were no
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 evidence indicating sexual assault on the victim. He has not found any injuries on the person of the victim. His opinion as per Ex.P-29 makes it clear that "there is no evidence to suggest that there is recent sexual activity". It is thus clear that there was no sexual assault on the victim.
16(b) Ex.P-28 is the FSL report of the samples taken at the time of medical examination of the victim. There are no seminal stains and spermatozoa detected in the said articles of the victim. In Ex.P-33, the history of the alleged incident is that one of the relatives of the victim called her to her house and took her to Saundatti Yallamma Temple. On the next day, she took her to Pashchapur and there accused No.1 forcefully locked her in a room with a boy named Rajappa and said Rajappay sexually assaulted her on the night of 02.01.2018.
16(c) This sole testimony of PW-1 is not sufficient to base conviction without corroboration as her testimony does not inspire the confidence of the Court. The evidence of PW-26 coupled with the report in Ex.P-33 indicates that
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 the hymen of the victim was normal. In the cross- examination, PW-26 admits that if there is any sexual assault, the hymen will tear. But according to PW-26, when the victim was examined he found no evidence of sexual assault on her.
17. PW-2 is the father and PW-13 is the mother. We have also perused their evidence. The testimony of the mother shows that on 02.01.2018 at 9.30 a.m., the victim left home and she did not return from the college. On the next day, she returned home at 1.00 p.m. and she was looking tired. She enquired why she did not return home yesterday and why she is looking tired. Victim told her that she is not feeling well and she should not be disturbed. Two days later, when she enquired the victim, it was revealed that the accused took her to Saundatti Yallamana Gudda from there to Pashchapur and made her to stay in the home with a promise to send her next day. On that night, accused No.2 committed sexual assault on her and they dropped her in the morning at Hirebagewadi
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 by paying Rs.200/-. PW-13 tried to take the victim to the hospital but she did not oblige. Thereafter, they went to Garag Police Station, but they sent them to Vidyagiri Police Station. Vidyagiri Police sent them to Yamakanamaradi Police Station where the victim gave the complaint narrating the alleged incident.
17(a) The cross-examination of PW-13 points out that they did not file any police complaint reporting that their daughter was missing on 02.01.2018. The victim was not taken to hospital. Only on filing of complaint on 15.01.218, she was taken to the hospital. The alleged incident has taken place on 02.01.2018. Victim was subjected to medical examination on 15.01.2018. In a case of this nature, it is very difficult to collect the evidence of sexual assault after 13 days. It is attributed that since accused No.1 being a relative of victim, she fell in love with accused No.2 and married him and the parents of the victim were nursing ill-will against accused No.1, they used the victim to take revenge.
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18. According to PW-2-father of the victim on 02.01.2018, he left home for his job at 8.30 a.m. and returned home at 5.00 p.m. He was informed that the victim has not returned from college. He searched for her, on the next day morning, he went to the college and met PW-16. She informed that the victim accompanied accused No.1. By the time he was about to report to police, victim returned to the house. On enquiry, she did not tell anything as she was under depression for 4 to 5 days. Later, victim informed his wife the alleged incident. She was taken to police station for filing complaint. In the cross-examination he has stated that the complaint was filed after 15 days of the incident. As deposed by PW-2, from Dharwad to Saundatti Yallamman Temple and to Pashchapur, several people were present and the victim has facility of phone booth in Yallammana Gudda. From the conduct of victim, cloud of doubt arises whether the victim was kidnapped by accused or she voluntarily accompanied the accused persons.
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19. The prosecution has relied on the evidence of other witnesses such as PW-6 and PW-7 as the panch witnesses to Exs.P-15 to P-17. PW-5 and PW-8 are panch witnesses to seizure of M.Os.1 and 2 under Ex.P-14. PW-9 and PW-10 are the witnesses to the mahazar drawn near Hagidal village where the alleged incident took place. PW-11 and PW-12 are panch witnesses to Ex.P-6 where the alleged incident took place in the kitchen and this was shown to the police by the victim herself. PW-3 and PW-4 are panch witnesses to Ex.P-11 mahazar regarding seizure of motorcycle in which the victim was carried away by the accused. PW-3 and PW-4 though attested the mahazar, they were not aware about the reasons for seizure of the motorcycle. PW-5 and PW-11 supports the prosecution version, however, there is no substantive evidence we could accept from these witnesses.
20. PW-14 is the sister of accused No.2 and PW-15 is the husband of PW-14. They have been cited as panch
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 witnesses, but did not support the prosecution and turned hostile about the alleged incident.
21. We have perused the evidence of PW-21-PSI who registered FIR on the basis of Ex.P-1 complaint submitted by PW-1 on 15.01.2018. PW-24 is the then Circle Inspector of Police who sent the victim to the medical examination, visited the spot and drawn Ex.P-2 mahazar and arrested accused No.1. PW-25 is the Investigation Officer who completed formalities of investigation and filed charge sheet.
22. We have perused the entire prosecution evidence. The learned Addl. SPP contended that the self serving testimony of PW-1 is sufficient to hold the accused guilty as the victim is a minor. At the same time, the defence relied on medical examination report and evidence of PW-2. We have noticed that the RFSL report Ex.P-28 did not suggest the sexual assault due to absence of seminal stains and spermatozoa. There are no physical injuries on the person of victim. The victim did not resist
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 while she was taken by the accused, contra as deposed by PW-16, victim herself went voluntarily with the accused. There is no medical evidence to show that the victim was subjected to sexual assault, hence, the self serving testimony of the victim cannot be believed without any corroboration to base conviction.
23. As we discussed above, age of the victim was not proved by the prosecution on the contrary, the medical report speaks and suggests that the victim was more than 18 years on the date of incident. The evidence of PW-16 coupled with the victim suggests that the victim accompanied the accused on her own. Though she stayed in the house of the accused at Hagidal and though there is allegation of sexual assault, same is not supported by medical evidence. When the victim herself accompanied the accused and herself came back to the home in the morning, she did not disclose anything to the parents and after 14 days i.e., on 15.01.2018 complaint was lodged, without explaining the delay. The self serving testimony
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 of the victim is therefore difficult to rely upon to accept the version of the prosecution.
24. We have carefully perused the impugned judgment. The Trial Court has appreciated the entire material evidence on record and observed that the victim has voluntarily gone along with the accused. Victim was aged more than 18 years at the time of alleged incident. The testimony of victim is not reliable as there is no evidence of sexual assault. Medical evidence did not stand in support of the prosecution and thereby Trial Court extended the benefit of doubt in favour of the accused and recorded the acquittal. The Trial Court has exercised its discretion based on the material evidence. In an appeal of this nature, in order to interfere with the order of acquittal, the prosecution is required to establish quality evidence and show that the Trial Court has committed an error in appreciation of evidence and there is an illegality in the impugned judgment. As we have re-appreciated the evidence, we find that the prosecution evidence is not
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NC: 2024:KHC-D:10563-DB CRL.A No. 100467 of 2019 inspiring the confidence of the Court. We do not find any error or illegality in the impugned judgment. Hence, the appeal is devoid of merits. In the result, the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KNM-upto para 5 Naa-para 6 to end List No.: 1 Sl No.: 24