State Of Karnataka vs Kamalesh Gajanan Naik
2021 Latest Caselaw 5803 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

   DATED THIS THE 09th DAY OF DECEMBER, 2021

                        PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                           AND
       THE HON'BLE MS. JUSTICE J.M.KHAZI
           CRIMINAL APPEAL No.100055/2019

BETWEEN:

STATE OF KARNATAKA,
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR,
HONNAVAR POLICE STATION,
UTTARA KANNADA, KARWAR,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, PIN CODE 580011
                                                ... APPELLANT
(SRI. V.M.BANAKAR, ADDL. SPP FOR APPELLANT)

AND:

KAMALESH GAJANAN NAIK,
AGE 34 YEARS, OCC: DRIVER,
R/O. NAGARBASTIKERI, TQ. GERASOPPA,
TQ. HONNAVAR, DIST. UTTARA KANNADA,
PIN CODE : 581384
                                              ... RESPONDENT

(BY SRI. RAMESH I. ZIRALI, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) &
(3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 08.06.2018
                                2


PASSED BY THE DIST. AND SESSIONS JUDGE, AND SPECIAL
JUDGE UTTARA KANNADA, KARWAR, IN S.C.NO.33/2013, ETC.,

     THIS APPEAL COMING ON FOR FINAL ORDER, HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:


                           JUDGMENT

1. The State is before this Court, challenging the

order of acquittal passed by the Special Judge,

Uttara Kannada, Karwar, dated 08.06.2018 in

Special Case No.33/2013.

2. Sri. V.M.Banakar, learned Addl. S.P.P. would

submit that, the trial Court has not considered all

the evidence on record in a proper perspective,

there being serious allegations made by the victim

minor as regards the sexual assault made on her,

the trial Court ought to have considered the matter

in the proper perspective and convicted the

accused. He submits that, the prosecution had

proved its case beyond all reasonable doubt about

the complicity of the accused and as such, the

accused ought to have been convicted.

3. Per contra, Sri. Ramesh Zirali, learned counsel

appearing for the respondent/accused would

submit that, the trial court has considered the

matter properly and acquitted the accused, the

prosecution has not even able to establish the

occurrence of the event, let alone on the complicity

of the accused and as such, he submits that the

appeal as filed is required to be dismissed.

4. Both the victim and the witnesses are referred to

by the witness number and not by their name in

order to protect the identity of the victim.

5. The case of the prosecution is that, when the

victim aged about 17 years on 31.08.2013 at 7.00

a.m. had gone to attend nature's call in the forest

near her house as they did not have a toilet in

their house, the accused knowing that the victim is

a minor had waylaid the victim, forcibly made her

to lay flat on the ground, thereafter the accused

removed his trouser and forcibly tried to have

sexual intercourse with her at which time she

picked up a stone hit him and ran away.

6. It is in this background, on the very same day at

2.00 p.m. the victim has lodged a complaint with

the jurisdictional police on which basis Crime

No.355/2013 was registered by the Honnavara

Police Station.

7. The investigation was taken up and upon

completion of the investigation a charge-sheet was

filed against the accused for the offences

punishable under Sections 341, 376 and 511 of IPC

and Section 8 of the Protection of Children from

Sexual Offences Act, 2012.

8. The charges having been framed, the same was

read over to the accused and explained to the

accused in a language known to him being

Kannada, the accused denied the charges, pleaded

not guilty and claimed to be tried.

9. The prosecution in order to prove its case has in all

examined 09 witnesses, i.e. P.W.1 to P.W.9 and

got marked 13 documents i.e. Ex.P.1 to Ex.P.13

and closed his side. The evidence against the

accused was put forward to the accused when the

statement under Section 313 of Cr.P.C., was

recorded when the accused denied the evidence

against them, but did not lead any evidence.

10. The trial Court upon hearing the parties, acquitted

the accused vide impugned Judgment dated

08.06.2018, it is the said Judgment which has

been challenged on the aforesaid grounds.

11. It is in this background, we are called upon to re-

examine and re-appreciate the evidence on record

in order to arrive at a conclusion as to whether the

Judgment of the acquittal passed by the trial Court

is proper and correct.

12. The complainant was examined as P.W.1. She has

stated that, P.W.2 is her father and that during the

year 2013 when she was 17 years of age on

31.08.2013 at 7.00 a.m., when she had gone to

attend nature's call, the accused assaulted her,

held her hands and tried to forcibly have sexual

intercourse with her, when she hit him with a stone

and escaped from his clutches, thereafter at 2.00

p.m., she went to the Honnavara Police Station

and lodged a complaint as per Ex.P.1, she

identified her signature as Ex.P.1A. She has

deposed that on the very same day, the police

came to the spot, conducted a panchanama

between 4.30 p.m. to 5.30 p.m., as per Ex.P.2 and

drawn a sketch as per Ex.P.3 and taken the

photograph of the spot as per Ex.P.4. She has

further stated that around 6.00 p.m. on the same

day, she was taken by the police to the hospital for

medical examination, where the Doctor examined

her. During the course of cross-examination, she

has admitted that the accused is the son of the

elder brother of her father. She denied any

disputes regarding the partition of properties

between her father and the father of the accused.

She admits that C.W.3 and C.W.4 who have been

examined as P.W.3 and P.W.4 are the children of

the sister of her father. She denied that the mother

of C.W.3 and C.W.4 had committed suicide since

she was not given a share in the partition. She

denied that there were any complaints filed by her

father and brother against the accused on an

earlier occasion. She has denied that there is any

dispute between her father, brother, P.W.3 and

P.W.4 and the family of the accused. She denied

that she has given a false complaint at the behest

of her father, brother, P.W.3 and P.W.4. She

denied that close to the place of crime there is a

school located. She denied that the school starts at

7.00 a.m. and there were children and other

people in the school at that time. She denied that

nearby to the spot there is a road where people

would be moving at that time. She has stated that

she had suffered an injury during the incident and

she does not remember whether she has disclosed

the name of the accused before the Doctor. She

has denied that the incident did not happen.

13. P.W.2 is the father of the complainant. He has also

stated that the complainant was aged about 17

years as of the date of the incident. He admits that

the accused is the son of his brother. He also

states that since there was no toilet in their house,

his daughter had gone out to attend nature's call

and she returned back shouting and on enquiry,

she has informed that the accused had tried to

commit sexual assault on her. It is for this reason,

he along with the complainant went to the police

station and lodged a complaint, thereafter, the

police came to the spot conducted a spot

panchanama in his presence. During the course of

cross-examination, he admits that about 10 to 12

years back, the properties of his father were

partitioned. He has also admitted that he had a

quarrel with the father of the accused of the

purpose of giving a share to the P.W.3 and P.W.4

on several occasions. He has admitted of the

accused has filed a complaint against him and his

son, as also against P.W.3 and P.W.4 alleging

assault by them on the accused on 20.08.2013. He

has admitted that he in turn has filed a complaint

against the accused on 25.08.2013, for assaulting

him.

14. P.W.3 is the son of the sister of the father of the

complainant. He has admitted that there is a

property dispute between P.W.2 and the father of

the accused as regards the properties. He has

stated that on 31.08.2013 when he was

proceeding on his bike with his brother P.W.4 at

11.00 a.m., he met P.W.2 and P.W.1 who informed

him that they were going to the police station to

file a complaint against the accused. He has stated

that at that time, neither of them knew of the

sexual assault and the statement was recorded the

next day. He was hence treated hostile by the

public prosecutor during the course of cross-

examination, he admits that the complainant and

the accused are brother and sister. He admits that

the father of the complainant has lodged a

complaint against the accused on 24.08.2013 and

25.08.2013, but has denied the suggestion that

since the accused was not arrested in those cases,

P.W.2 got filed the present case, through his

daughter to get him arrested.

15. P.W.4 who is the brother of P.W.3 has reiterated

the statement made by P.W.3. During the course

of cross-examination, he has admitted that there is

a complaint filed by the accused against P.W.2 and

his son, wherein an enquiry is being conducted

against them. He denies any knowledge of the

complaint being filed on 24.08.2013 and

25.08.2013 by the accused against P.W.2. He

denied that, since the police had not arrested the

accused, P.W.2 has filed the present complaint

through his daughter.

16. P.W.5 did not support the case of the prosecution

and was treated as a hostile witness. During the

course of his cross-examination, nothing was

elicited to support the case of the prosecution.

17. P.W.6 is the Principal of the Government School,

who has produced the evidence in support of the

date of birth of P.W.1 which was marked as Ex.P.7.

18. P.W.7 is the witness to the spot panchanama. He

has identified the spot panchanama and the sketch

prepared of the spot. During the course of his

cross-examination, he had admitted that there is a

property dispute between P.W.2 and the father of

the accused. He had admitted that there is a

school near the place of the incident.

19. P.W.8 is the Medical Officer, who examined P.W.1

victim on 31.08.2013. He has stated that at that

time, he has not found any external injuries but

the victim has complained of body pain, hence, he

has issued a certificate in terms of Ex.P.8. During

the cross-examination, he has admitted that the

victim did not inform him of who assaulted her.

20. P.W.9 is a Circle Inspector of Police and the

Investigating Officer. He has stated that P.W.1 the

victim came to the police station on 31.08.2013 at

2.00 p.m. and filed a written complaint (Ex.P.1) on

which basis Crime No.355/2013 was registered and

FIR at Ex.P.9 sent to the Court. He along with

several others went to the spot and prepared the

spot panchanama as per Ex.P.2 and prepared a

map at Ex.P.3, took a photograph of the spot as

per Ex.P4 and then sent the complainant for

medical test and on the same date the accused has

been arrested and produced before the Court and

he was remanded to judicial custody. He has

stated that he has recorded the statements of

P.W.3, P.W.4 and P.W.5 on 06.09.2013, obtained

transfer certificate as per Ex.P.7 from the School

and also obtained wound certificate from P.W.8 at

Ex.P.8, thereafter filed a charge-sheet. He admits

in his cross-examination that during the

investigation he came to know that the father of

the complainant and father of the accused are

brothers, between whom there are property

disputes. The father of the complainant had filed

several complaints against the complainant and his

father. He also admitted that on 20.08.2013 the

father of the complainant, brother of the

complainant P.W.3 and P.W.4 had assaulted the

accused and a case was registered. The complaint

and FIR have been marked as Ex.D.1 and Ex.D.2.

He admits that, there is a Government School near

the spot, but no students and teachers have given

the statements.

21. The above being the statements and depositions

Ex.P.1 is the complaint where more or less similar

allegations as made in the deposition of the P.W.1

are made. Ex.P.2 is the panchanama of the spot

and the sketch of the spot. A perusal of the sketch

indicates that the distance between the house of

the complainant and the spot is around 100

meters, the distance from the spot to the school is

around 75 meters and the distance to the road is

about 30 feet. This would disprove the statement

made by the complainant since the complainant

has stated that there is no school near the spot

and that there is no road near the spot.

22. Ex.P.3 is the portion of the statement of the P.W.3,

Ex.P.4 is the photograph of the spot, Ex.P.5 is the

statement of P.W.3. Ex.P.6 is the statement of

P.W.5. Ex.P.7 is the Transfer Certificate of the

complainant, which indicates the date of birth to be

06.11.1997, Thus as on the date of occurrence of

the event, she was 17 years old.

23. Ex.P.8 is the wound certificate which makes

interesting reading inasmuch as the Doctor in the

said certificate has recorded that no external

injuries have occurred due to the alleged assault

but only bodily pain. At no place in the said wound

certificate at Ex.P.8 is there a mention of sexual

assault nor any examinations which were

conducted on the complainant as required in any

case of sexual assault. The Doctor has only stated

that the victim has only a complaint of pain all over

the body and that there were no external injuries

seen.

24. Ex.P.9 is the First Information Report on the basis

of the complaint filed. Ex.P.10 is the FIR and Crime

No.340/2013 based on the compliant as per

Ex.P.11. The said complaint having been filed by

the brother of the complainant against the accused

and his father alleging that on 24.08.2013 around

15.00 hours, the accused had abused the

complainant by using unparliamentarily words as

also physically assaulted him and threatened the

life of the brother of the complainant. Ex.P.12 is

the FIR in Crime No.343/2013, registered on the

basis of the complaint dated 25.08.2013 lodged by

the father of the complainant against the accused

and his father wherein, it is alleged that on

25.08.2013 at about 13.13 hours that the accused

therein had barged into the house of the father of

the complainant, abused in an unparliamentarily

language, physically assaulted him and threatened

his life.

25. Ex.D.1 is the FIR in Crime NO.337/2013,

registered on 20.08.2013 on a complaint dated

20.08.2013 filed by the accused against the father

and brother of the complainant as also P.W.3 and

P.W.4, wherein it is alleged that on 19.08.2013

P.W.2 was angry with the accused herein as the

accused had told P.W.2 not to graze his buffalos on

his farm. On 22.08.2013, while the accused was

constructing a shed for Ganesha festival PW2, his

son, PW9 and 10 came in a vehicle bearing

registration number KA/47/1192, blocked the

accused's path and started using unparliamentary

words and began to assault him. The accused filed

a complaint and the said FIR was registered

against PW2, his son, PW9 and 10, for offences

under Section 341,323,324,504,506 R/w 34 of IPC

26. It is in the above background, that if the complaint

at Ex.P.1 is considered, it is rather shocking that

no averment or statement was made in the

complaint that the accused is the son of the

brother of the complainant's father. The complaint

is given as if the accused is a third party who is

residing near the house of the complainant. The

complainant also during the course of her cross-

examination has denied several facts which ought

to have been in her knowledge more so, when a

series of complaints and counter complains have

been filed between the family of the complainant

and that of the accused.

27. The wound certificate as abovementioned does not

make any reference to sexual assault. There is no

medical evidence of any attempted sexual assault,

let alone sexual assault. The complainant has also

denied the existence of a school, when in fact such

a school is in existence near the spot. She has also

denied the existence of the road when in fact such

a road is in existence, an appreciation of all the

evidence of P.W.1, gives rise to the various

contradictions as stated above, thus, we are of the

opinion that the testimony of the P.W.1 cannot be

taken to be truthful nor her testimony be trusted.

28. The evidence on record indicates several

complaints and counter complaints between both

the families having been filed. The relationship not

having been mentioned in the complaint filed by

the present complainant would also give rise to the

doubts as to why the relationship with the accused

is not mentioned. Thus, we are unable to believe

the version of the complaint.

29. As regards the investigation carried out, less said

the better as there is absolutely no evidence on

record, medical or otherwise, which the

Investigating Officer has been able to secure in the

present matter.

30. It is rather shocking that when a person who

alleged [rightly or wrongly] to have been sexually

assaulted, no requisition to the Doctor has been

issued as regards the examination to be conducted

to the complainant. The wound certificate at Ex.P.8

issued by P.W.8 does not refer to any sexual

assault, but a general assault. There is no medical

examination of the victim or the accused which has

been conducted. The clothes of neither the victim

nor the accused have been collected and sent for

forensic examination. More so, when there is an

allegation that the accused tried to have forcible

sexual intercourse with the victim. In the words of

the victim-complainant, the accused tried to rape

her by forcefully trying to take her clothes off when

she hit him with a stone. In order to prove all

these aspects, it was required that necessary

evidence to be secured and forensic examination

be done.

31. On enquiry with Sri. Banakar, as regards the

process and investigation method to be followed.

Learned S.P.P submitted that till now the

procedure prescribed in the Police Manual was

being followed and henceforth the Standard

Operating Procedure (SOP), issued by Karnataka

State Police, regarding the procedures that are

needed to be adopted for management of cases

relating to Child Sexual Abuse will be followed.

32. We have examined the Police manual unfortunately

even the procedure prescribed therein has not

been followed.

33. The SOP mentioned above is a step in the right

direction, it is required that all investigating

officers are trained and sensitized in this regard

and a monitoring agency set up by the Director-

General of Police for the State of Karnataka to

ensure that the SOP is followed and implemented

both in letter and spirit. Learned Additional SPP is

directed to bring the above to the notice of the

Director-General of Police. The Additional Registrar

General of this Court is also directed to forward a

copy of this order to the Director-General of Police

for the State of Karnataka forthwith.

34. Coming back to the present case for all the above

reasons, the evidence of P.W.1 being

untrustworthy, the evidence of P.W.2, P.W.3 and

P.W.4 being interested witnesses against whom a

complaint has been lodged by the accused, the

testimony of the Doctor and or the exhibits marked

in this regard does not establish sexual assault, we

are of the considered opinion that the order of

acquittal passed by the trial Court is just and

proper and does not require any interference.

Hence, we pass the following :

ORDER

The appeal filed by the State is dismissed.

(SD/-) JUDGE

(SD/-) JUDGE

*Svh/-