State Of Karnataka vs Anjini S/O Vaddara Ramesh
2021 Latest Caselaw 6148 Kant

           THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

   DATED THIS THE 15TH DAY OF DECEMBER, 2021

                       PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                          AND

          THE HON'BLE MS.JUSTICE J.M. KHAZI

          CRIMINAL APPEAL NO.100028/2019

BETWEEN

STATE OF KARNATAKA
REPRESENTED BY TH E
CIRCLE INSPECTOR OF POLICE,
KURUGODU CIRCLE,
DIST: BALLARI
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERL OFFICE,
HIGH COURT OF KARNATAKA
DHARWAD BENCH.
                                     ...APPELLANT
(BY SRI. V.M BANAKAR, ADDL.SPP)

AND

ANJINI
S/O. VADDARA RAMESH,
AGE:23 YEARS,
R/O. WARD NO.4,
NEAR GANESH TEMPLE,
KUDITHINI VILLAGE,
BALLARI DISTRICT.
                                    ...RESPONDENT
(BY SRI.S.C.BHUTI, AMICUS CURIAE)
                               2


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
22.06.2018 AND TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 22.06.2018 PASSED BY I-ADDL. DIST. AND
SESSIONS JUDGE, BALLARI, IN SPL.S.C.NO.115/2014 AND TO
CONVICT THE RESPONDENT FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 366-A, 376 OF IPC AND SECTIONS 4 AND 6
OF POCSO ACT.

     THESE CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.11.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:


                        JUDGMENT

In this appeal filed under Section 378(1) and (3) of

Cr.P.C. the State has challenged the acquittal of the

respondent for offences punishable under Sections 366-A,

376 of IPC and under Sections 4 and 6 of POCSO Act.

2. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

3. A charge sheet came to be filed against the

Accused in SPL.S.C.NO.115/2014 on the file of I-Addl.

District and Sessions Judge, Ballari, for the offences

punishable under Sections 366-A, 376 of IPC and under

Sections 4 and 6 of POCSO Act, 2012. The allegations

against the Accused are that on 14.04.2014, accused

kidnapped the prosecutrix who was aged 15 years with an

intention to have sexual intercourse with her and took her

to Jattigi village, Muddebihal Taluk, Bijapur District and

married her in the presence of CW.13 and committed rape

on her till 26.04.2014 when he was arrested.

4. During the Trial in all 21 witnesses were

examined including the complainant as well as the

prosecutrix. The prosecution has relied on Ex.P-1 to 19

and MOs.1 to 19. During the cross examination of PW.19

the accused has got marked the Ex.D 1.

5. During the course of his statement under

Section 313 of Cr.P.C the accused has denied the

incriminating material in the evidence led on behalf of

prosecution. He has not lead evidence on his behalf.

6. After hearing arguments of both sides, vide

impugned judgment and order, Trial Court has acquitted

the accused of all the charges.

7. During the course of arguments, the learned

Additional State Public Prosecutor submitted that the

impugned judgment and order of acquittal passed by the

Trial Court is contrary to law, facts and evidence on record

and as such it is liable to be set aside. As on the date of

her kidnapping, the prosecutrix was below the age of 16

years. During the course of her evidence she has deposed

on oath that the accused has committed forcible sexual

assault on her against her will and without her consent.

PW.16 M.Yerri Swamy who is the head master of the

school has issued date of birth certificate as per Ex.P.10

and the transfer certificate as per Ex.P.11 and deposed

that the date of birth of the prosecutrix is 18.05.1999 and

as such as on the date of her kidnapping she was aged 15

years. This fact is not considered and appreciated by the

Trial Court and thereby it has erred in acquitting the

accused holding that the provisions of POCSO Act are not

applicable.

8. He would further submit that in addition to the

prosecutrix, PW 2 the complainant who is the mother,

PW.3 Yallappa the brother as well as PW.4 Yerri Swamy

independent witnesses have supported the prosecution

case. PW.19 Dr. K.N.M.Asha Rani the Medical Officer who

has examined the prosecutrix and issued the Medical

Certificate at Ex.P-13, has deposed that the prosecutrix

was 15 years at the time of incident and that her hymen

was not intact. The evidence of these witnesses have not

been appreciated by the Trial Court in proper prospective

and thereby committed error in acquitting the accused.

9. The Additional State Public Prosecutor further

submitted that the Trial Court has erred in marking Ex.D-1

which was a document issued by PW.17, but it was marked

through PW.19 Dr. K.N.M.Asha Rani who is not the Author

of the said document. Even though at the time of marking

it, the prosecution has raised objections, it was not

considered while analyzing the evidence. Ex.D-1 is

inadmissible. Therefore the impugned judgment based on

Ex.D-1 holding that as on the date of incident the

prosecutrix was major is not sustainable and it is liable to

be set aside. The findings of the Trial Court in not relying

upon the transfer certificate as a proof of date of birth of

the prosecutrix is contrary to the judgment of the Hon'ble

Supreme Court reported in (2013) 14 SCC 637 in the

case of Mahadeo S/o. Kerba Maste V/s. State of

Maharashtra and another.

10. He would further submit that the testimony of

the proseutrix is inherently truthful and deserves to be

accepted without any reservations. It is a settled principal

of law that a girl below the age of 18 years is not capable

of giving consent and therefore the defense of consent is

not maintainable and acceptable. This proposition of law

have been discussed by the Hon'ble Supreme Court in the

case reported in 2015 (4) Crimes 541 SC in the case of

Upendra Pradhan V/s. State of Orissa. In the light of

this judgment the reasons assigned by the Trial Court in

discarding the true version of the prosecutrix evidence is

not sustainable.

11. Learned Additional State Public Prosecutor

further submitted that the learned Special Judge has

totally ignored the provisions of Sections 29 and 30 of the

POCSO Act. As per Section 29, where any accused is

prosecuted for any offence punishable under Sections 3, 5,

7 and 9 of the POCSO Act, unless the contrary is proved,

the Special Court shall presume that the accused has

committed the said offence. This is a statutory

presumption and the Court is bound to draw the

presumption against the accused and the burden is on the

accused to disprove the same. This statutory presumption

creates an exception to the ordinary rule of presumption of

innocence available to the accused in other criminal Trial.

As such the presumption puts onus on the accused to

establish his innocence. Similarly Section 30 of POCSO Act,

raises presumption as to the mental condition of the

accused and the said mental condition is inclusive of

culpable mental state, including intention, motive,

knowledge of a fact and the belief in, or reason to believe,

a fact and this presumption is so strong that accused has

to prove absence of culpable mental state beyond all

reasonable doubt. The accused is not relieved by showing

preponderance of probabilities. The Trial Court has not

drawn the presumptions which are mandatory. It has

evaluated the evidence and decided the case like any

ordinary case and mechanically acquitted the accused

which calls for interference of this Hon'ble Court.

12. In support of his arguments the learned

Additional State Public Prosecutor has relied upon (2013)

14 SCC 637 in the case of Mahadeo S/o. Kerba Maske

V/s. State of Maharashtra.

13. On the other hand the learned counsel

representing the accused submits that after examining the

oral and documentary evidence placed on record, the

Special Court has come to a correct conclusion that as on

the date of incident, the prosecutrix was major and she

was a consenting party. Relying upon the decision reported

in (2007) 4 SCC 415 in the case of Chandrappa and

Others V/s. State of Karnataka, the learned counsel for

the accused submits that where two views are possible on

the evidence on record, one taken by the trial Court in

favor of the accused should not be disturbed by the

appellate Court and prays to dismiss the appeal.

14. In support of his argument the learned counsel

representing the accused has also relied upon (2011) 2

SCC 385 in the case of Alamelu and Another V/s. State

Represented by Inspector of Police.

15. We have heard the elaborate arguments of

both the sides and perused the record.

16. It is the definite case of the prosecution that

the prosecutrix was born on 18.05.1999 and as such, as

on the date of incident i.e., on 14.04.2014, she was less

than 15 years old i.e.,14 years 11 months and 26 days, to

be precise.

17. The accused has taken up a defense that the

prosecution has failed to prove that as on the date of the

incident, the prosecutrix was below the age of 16 years.

From the cross examination of the witnesses, it is evident

that the accused has set up a defense that the prosecutrix

has voluntarily accompanied him and they have married

and thereafter they have stayed together as husband and

wife and such as no offence either under the provisions of

IPC or POCSO Act are attracted and therefore the Trial

Court has rightly acquitted him of all the charges.

18. According to the prosecution, on 14.04.2014

the accused kidnapped the prosecutrix and after the

complaint was filed, they were searched and ultimately,

they were secured on 26.04.2014. On 28.04.2014, the

statement of the prosecutrix is recorded before the

jurisdictional magistrate under Section 164 of Cr.P.C.

During the course of her statement, the prosecutrix has

given her age as 15 years. However throughout her

statement under Section 164 of Cr.P.C, she has taken up a

contention that she was in love with the accused since 3

years prior to giving her statement and as her parents

were against their love affair and they were forcing her to

join Bramha Kumari's Ashram and since she was not

willing to join the same, she forced the accused to take her

away from her parents or else she would commit suicide.

19. She has further stated that since the accused

was very poor, she took gold ornaments with her weighing

about 2 Tola's and after pledging the same for Rs.30,000/-

they purchased cloths, Taali and other ornaments which

are necessary for the marriage and on 15.04.2014 they

got married at Anjaneya Temple which is near Jattigi

village in the presence of the friend of accused and his

family members and thereafter they stayed in the house of

the friend of accused from 15.04.2014 to 19.04.2014.

From 19.04.2014 to 26.04.2014 they lived together as

husband and wife in a rented house and during this period

she voluntarily had sexual intercourse with the accused.

20. Though during the course of her evidence, the

prosecutrix has reiterated all these aspects, so far as

marrying the accused, she has deposed that forcibly the

accused tied Taali and married her. With regard to having

sexual intercourse, before the Court she has stated that

Accused forcibly committed rape on her against her will.

On the other hand, during the cross examination of the

prosecutrix, the defense has made suggestions that she

voluntarily accompanied the accused to all the places and

married the accused on her own volition and similarly she

led a marital life with him and there was no force on the

part of the accused while they had physical relationship

during their stay together as husband and wife. In the light

of the specific defense taken by the accused, it is to be

seen whether the prosecution has proved that as on the

date of incident, the prosecutrix was below the age of 16

years and as such a minor. In that event the consent of

the prosecution would become immaterial.

21. PW.1 Hanumakka is the mother of the

prosecutrix who is examined as PW.2. Both of them have

deposed that as on the date of giving evidence, the

prosecutrix was aged 15 years. PW.2 has specifically

deposed that her date of birth is 18.05.1999 and she has

studied in Government School up to 5th standard.

22. PW.16 M. Yerri Swamy is the Head Master of

the Government Lower-Primary School, Kuduthini. He has

issued the certificate at Ex.P-10 stating the date of birth of

the prosecutrix as 18.05.1999. This information is based

on the entries made in the school records as per admission

No.37/2005-06. He has also issued the certified copy of

her transfer certificate at Ex.P-11. PW.16 has deposed with

regard to these documents and stated that he has issued

these documents based on the school records. He has

specifically stated that at the time of admission entries will

be made based on the particulars furnished by the parents

or guardian of the child. On the date of his evidence, he

has also produced the original school admission register.

During his cross examination a suggestion is made to the

witness that the particulars especially with regard to the

date of birth of the child will be entered on the basis of

birth certificate of the child. On this aspect PW 16 has

specially stated that the parents have produced the birth

certificate at the time of admission. He has denied the

suggestion that the parents of the prosecutrix has not

produced the birth certificate and that he has made false

entry at the instance of the police. He has also denied that

he has created this document for the purpose of this case.

23. As already noted at the time of his evidence

PW.16 M.Yerri Swamy has produced original Admission

Register and based on the same, the entries in the transfer

certificate as well as the birth certificate at Ex.P-10 and 11

are made. Infact while this witness is being cross

examined, the learned counsel for the accused had the

advantage of looking into the original Admission Register.

Consequently a suggestion is made on behalf of the

defense that these entries are made based on the birth

certificate produced by the parents of the prosecutrix.

Thus through the testimony of PW.1, 2 as well as 16 in as

much as Ex.P-10 and 11 the prosecution has proved that

the date of birth of the prosecutrix is 18.05.1999 and as

on the date of incident i.e., 14.04.2014 the prosecutrix

was aged 14 years 11 months and 26 days and therefore

she has not completed 15 years of age.

24. As already noted Ex.P-2 is the statement given

by the prosecutrix under Section 164 of Cr.P.C before the

Jurisdictional Magistrate wherein she has given her age as

15 years. Ex.D 1 is the examination report of the

prosecutrix issued by PW-17 Dr. Chaitanya R. However this

document is not marked through him i.e., PW-17 Dr.

Chaitanya R, even though he is the one who has examined

the accused and given opinion as per Ex.P 12 that there is

nothing to suggest that the person is incapable of

performing sexual intercourse. On the other hand the

defense has got it marked through PW-19 Dr. K.N.M.Asha

Rani. The defense has not confronted Ex.D-1 to PW.17

who is the author of the document and as such it is not

proved in accordance with law. Infact, the prosecution has

raised objections when Ex.D-1 was confronted to PW.19

Dr. K.N.M.Usha Rani on the ground that she is not

competent to speak with regard to the same. Inspite of

recording the objections, the Trial Court has not given any

findings as to whether this document is proved or not.

Directly it has come to the conclusion that as per Ex.D-1,

the prosecutrix was aged between 18 to 20 years which is

contrary to Ex.P-10 and 11.

25. At this stage it is relevant to look into

Mahadeo's case (referred to supra), wherein the Hon'ble

Apex Court making reference to the statutory provisions

contained in the Juvenile Justice (Care and Protection of

Children) Rules, 2007, (hereinafter referred to as "Rules,

2007" for brevity) wherein under Rule 12, the procedure to

be followed in determining the age of the Juvenile is set

out, held that in every case concerning a child or juvenile

in conflict with the law, the age determination inquiry shall

be conducted by the Court or the Board or as the case may

be, by the committee seeking evidence by obtaining:

12(3)(a)(i) The matriculation or equivalent

certificates, if available; and in the absence

whereof;

(ii) The date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

             (iii)    The    birth   certificate     given    by   a
      corporation      or    a   municipal      authority     or   a
      Panchayat."

26. The Juvenile Justice Act is amended in 2015

i.e., The Juvenile Justice (Care and Protection of Children)

Act, 2015 (hereinafter referred to as "Act, 2015" for

brevity). The State Government has not framed separate

Rules. But, the procedure for determining age of the

juvenile is incorporated in Section 94 of the Act, 2015.

27. However, in case of Sanjeevkumar Gupta

Vs. State of Uttar Pradesh and another, reported in

(2019) 12 SCC 370, the Hon'ble Supreme Court while

deciding the claim of juvenility of the accused in a criminal

trial, held that Section 7A of Act, 2000 provides the

procedure to be followed when a claim of juvenility is

raised before a Court. Upon a claim being raised that an

accused was juvenile on the date of commission of the

offence, the Court is required to make an enquiry, take

evidence and to determine the age of the person. The

Court has to record a finding whether a person is a

juvenile or a child, stating the age as nearly as may be.

Rule 12(3) of Rules, 2007 contains a procedural provision

governing the determination of age by the Court or by the

Board. In that case on appreciation of the facts the Hon'ble

Supreme Court rejected the entry in the matriculation

certificate and by considering the voluntary disclosure

made by the accused while obtaining both Aadhaar Card

and driving licence, held that the accused was not a

juvenile as on the date of the commission of the offence.

28. Similar view is taken by the Full Bench of the

Hon'ble Supreme Court in the case of Ramvijay Singh

Vs. State of Uttar Pradesh reported in 2021 CRI.L.J.

2805. In this decision also the accused has taken the plea

of juvenility. Referring to Rule 7A of Act, 2000 and Section

94 of the Act, 2015, wherein procedure for determining the

age of a child in conflict with law is incorporated, the

Hon'ble Supreme Court observed that the procedure

prescribed in Rule 12 of Rules, 2007, is not materially

different than the provisions of Section 94 of Act, 2015, to

determine the age of the person. There are minor

variations as the Rule 12(3)(a)(i) and (ii) having clubbed

together with slight changes in the language. Section 94 of

the Act, 2015, does not contain the provision regarding the

benefit of margin of age to be given to the child or juvenile

as was provided in Rule 12(3)(b) of the Rules, 2007. At

para No.16 of the judgment, the Hon'ble Supreme Court

held that the Court is not precluded from taking into

consideration any other relevant and trustworthy material

to determine the age as in that case, all the three

eventualities mentioned in Sub Section 2 of Section 94 of

the Act, 2015 are either not available or are not found to

be reliable and trustworthy.

29. Thus, in view of the above three referred

judgments of the Hon'ble Supreme Court, the procedure

contemplated under Rule 12 of Rules, 2007 and Section 94

of the Act, 2015, is only directory and the Court may

examine any other evidence including the documents

referred to in Rule 12 of the Rules, 2007 which is synonym

with Section 94 of the Act, 2015, and determine the age of

the juvenile or a victim under POCSO Act.

30. In the light of the above discussion, we hold

that the date of birth certificate and transfer certificate at

Exs.P-10 and 11 which are based on the entries made in

the School Admission Register, which contains the date of

birth of the prosecutrix is to be accepted as proof of her

date of birth. As discussed above, in the light of Exs.P-10

and 11, the Medical Report at Ex.D-1 of the prosecutrix

wherein her age is determined approximately is

inadmissible especially when it is not proved in accordance

with law. Consequently we hold that as on the date of the

incident, the prosecutrix had not completed 15 years of

age and as such a minor both under the provisions of

Section 376 IPC and POCSO Act.

31. In Almelu's case (referred to Supra) relied

upon by the learned counsel representing the accused, it

was held that the prosecution has failed to prove that the

victim girl was a minor. However in the present case it is

established that as on the date of the incident the

prosecutrix has not completed the age of 15 years.

Therefore this decision is not applicable for the case in

hand.

32. Before discussing whether the prosecution has

proved the allegations attracting provisions of Section 376

IPC and POCSO Act, it is necessary to examine whether

the allegations that accused kidnapped her is required to

be examined. As evident from the testimony of the

prosecutrix i.e., PW.2, from Kudutini, accused took her to

Ballari in a KSRTC Bus. From there they went to a pawn

shop and pledged her gold ornaments for Rs.30,000/-.

Thereafter, they purchased a bag and clothes. On the

evening at 04:30 p.m. they boarded Guntakal Train and

conducted pooja at Kasapura Anjaneya Temple. At 06:00

p.m. they boarded Train and went to Raichur. On that

night they stayed in the Railway-Station. At 05:00 a.m.

they boarded Bus and reached Muddebihal at 09:00 a.m.

At Muddebihal they have purchased Taali, Gundu,

Kalungura (vÁ½, UÀÄAqÀÄ, PÁ®ÄAUÀÄgÀ) and went to the house of

one Swamy, a friend of accused situated at Jattigi Village.

33. At Jattigi village, accused took her to Anjaneya

Temple and along with them his friend Swamy, his wife

and children were also present. Though in her statement

under Section 164 Cr.P.C., the prosecutrix has stated that

she got married to the accused on her own volition, before

the Court she has stated that accused forcibly married her

by tying the Taali. She has also stated that for four days

she stayed in the house of Swamy and thereafter they

went to Muddebihal and took a house on rent and for eight

days, they stayed there. In her statement under Section

164 Cr.P.C., on this aspect she has stated that while she

and accused stayed in the house of Swamy as well as in

the rented house at Muddebihal, they led a married life.

However, before the Court, she has stated that at all these

places, accused committed rape on her forcibly. Her

evidence reveal that she stayed in the rented house along

with the accused till the complainant Police came and

brought them back to Kudutini.

34. Thus so far as allegations of kidnapping is

concerned, the examination of the evidence of prosecutrix

reveal that nowhere she has claimed that she was forcibly

taken by the accused. In fact, a careful analysis of her

evidence makes it evident that at no point of time she

resisted the accused and she has readily gone with him at

all these places. Therefore, as held by the Co-ordinate

Bench of this Court in the case of State of Karnataka Vs.

Gowtham reported in 2016 (4) Kar.L.J. 60 (DB),

wherein also the prosecutrix was aged 15 years and after

analyzing the evidence, this Court held that having regard

to the fact that at no point of time, the prosecutrix raised

any hue and cry and it goes to show that she voluntarily

went with the accused and therefore the provisions of

Section 366 of IPC are not attracted i.e., the allegations of

kidnapping are not proved. In the present case also the

prosecution has failed to prove the offence punishable

under Sections 366A of IPC.

35. In the same judgment, it was held that where

the prosecutrix is aged below 16 years, whether there is

consent or no consent, in case there is proof of offence of

rape, then the Court may proceed to convict the accused.

In view of the fact that as on the date of the incident, the

prosecutrix was below the age of 15 years, the next

question that is to be decided is whether the prosecution

has proved the allegations of Section 376 of IPC and

Sections 4 and 6 of POCSO Act.

36. During the course of her evidence before the

Court, the prosecutrix has deposed that while she stayed

with the accused in the house of Swamy at Jattigi village

and thereafter in a rented house at Muddebihal, accused

committed rape on her against her Will. However, in her

statement under Section 164 of Cr.P.C., at Ex.P-2, she has

stated that at both the places namely Jattigi and

Muddebihal, she had physical relationship with the accused

on her own volition. During the cross-examination of PW.2

the prosecutrix, a suggestion is made by the accused that

after the marriage, accused had physical relationship with

her, which fact has been admitted by the prosecutrix,

though in the next sentence she has stated that it was

with force and she resisted the same.

37. However the medical evidence is otherwise. As

already discussed, PW.17 Dr.Chaitanya has examined the

accused and given the report to the effect that there is

nothing to suggest that the person is incapable of

performing sexual intercourse, as per Ex.P-12. PW.19

Dr.K.N.M.Asharani has examined the prosecutrix and given

report as per Ex.P-13, wherein it is stated that no external

injuries were found on the person of the prosecutrix. The

hymen was ruptured. In Ex.P-13 it is noted that as per the

statement of the prosecutrix herself, for the past three

weeks, she had sexual intercourse with the accused. It is

further stated that she is used to regularly having sexual

intercourse. Awaiting the FSL report, she has reserved her

final report.

38. Ex.P-16 is the FSL Report. As per the FSL

Report, the seminal stains were not detected in item

Nos.1, 4, 6, 9 to 15, 17 and 18 which are Pubic Hairs,

Vaginal Swab, Cervical Swab, Chudidar Top Colour White

and Block, Green, Chudidar Bottom Green (Dark),

Chudidar Duppatta Dark Green Colour, A Full Sleeves

Shirt, A blue coloured pant, One Banian, One underwear,

Cut pubic hair samples, A cotton swab taken from penis.

Similarly, as per this report, skin tissue was not detected

in item No.2 i.e., the finger nails of the prosecutrix.

Ex.P-16 further states that spermatozova was not detected

in item Nos.3, 5 and 19 which are vagina smear, cervical

smear and a glass lid smeared with Penie swab. It

appears, after receipt of the FSL Report, the Investigating

Officer has not taken the final opinion of the Medical

Officer by showing the same. Therefore, the medical

opinion regarding whether there is evidence of sexual

intercourse is not complete. Therefore, we hold that the

prosecution has failed to prove the ingredients of Section

376 of IPC as well as Sections 4 and 6 of the POCSO Act.

39. So far as the evidence of the prosecutrix that

accused had sexual intercourse with her against her will

and without her consent, at the first available opportunity,

during the course of her statement under Section 164 of

Cr.P.C., the prosecutrix has given a clear go bye to the

allegations that there was force exerted by the accused.

Only during the course of her evidence, she has

dramatically changed her version. We find her testimony

not reliable. She has no regard for the truth. As held by

the Co-ordinate Bench of this Court in the matter of

Gowtham's case referred to supra, the factum of whether

victim was sexually assaulted is not established by the

prosecution especially when the presence of seminal stains

not detected as noticed in the FSL Report and thereby it is

not supporting the prosecution case. Similar view was

taken by the Hon'ble Supreme Court in the matter of

Alamelu and another Vs. State represented by

Inspector of Police reported in (2011) 2 SCC 385,

wherein it was observed by the Hon'ble Apex Court that

though the prosecutrix had several opportunities to protest

and raise an alarm, she did not do so. Her behaviour of not

complaining to anybody of any of the stages after being

allegedly abducted is wholly unnatural. Therefore,

conviction solely on the testimony of prosecutrix is not

sustainable. In the light of these observations, we hold

that taking into consideration, the oral and documentary

evidence on record, the Trial Court has come to a correct

conclusion that the charges levelled against the accused

are not proved beyond reasonable doubt and acquitted

him. We find no reason to interfere with the conclusions

arrived at by the Trial Court and accordingly, we proceed

to pass the following:

ORDER

Appeal filed by the State fails and accordingly it is

dismissed.

We place on record our appreciations for the able

assistance given by Sri.S.C.Bhuti, learned Amicus Curiae

representing the accused/respondent.

Sri.S.C.Bhuti, learned Amicus Curiae submits that he

has represented the accused/respondent pro bono and

there is no need to order for grant of any remuneration,

we appreciate his gesture.

Sd/-

JUDGE

Sd/-

JUDGE

PJ