State Of Karnataka vs Manju S/O Sannaningappa Shiggavi
2021 Latest Caselaw 6851 Kant

          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

   DATED THIS THE 20TH DAY OF DECEMBER, 2021

                        PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                           AND

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

          CRIMINAL APPEAL NO.100086/2019

BETWEEN

STATE OF KARNATAKA,
REP. BY THE SUB-INSPECTOR OF POLICE,
SAVANUR POLICE STATION, DIST: HAVERI.
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                         ...APPELLANT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)

AND

MANJU S/O SANNANINGAPPA SHIGGAVI,
AGE: 24 YEARS, OCC: GOUNDI,
R/O: ALLIPURA, TALUK: SAVANUR,
DIST: HAVERI.
                                          ...RESPONDENT
(BY SRI.SHIVASAI M. PATIL, ADV.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF CR.P.C. PRAYING TO SET ASIDE AND GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 25.08.2018 PASSED IN SPL. S.C.
NO.34/2015 BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE AND SPL. JUDGE, HAVERI, AND TO CONVICT THE
ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTIONS 363
                               2


AND 376 OF IPC AND UNDER SECTIONS 4 AND 6 OF POCSO
ACT, 2012.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 06.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:

                        JUDGMENT

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

the Code of Criminal Procedure, 1973 (hereinafter referred

to as "Cr.P.C." for short), the State has challenged the

acquittal of accused for the offences punishable under

Sections 363, 376 of the Indian Penal Code, 1860

(hereinafter referred to as "IPC" for short), Sections 4 and

6 of the Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as "POCSO Act" for short).

2. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

3. A charge sheet came to filed against the

accused in Special Sessions Case No.34/2015 on the file of

Principal District and Sessions Judge and Special Judge at

Haveri, alleging that on 10.02.2015 at 12 in the midnight,

at Allipura Village, while prosecutrix aged 16 years was

going out of her house without informing anyone, accused

knowing fully well that she is a minor, kidnapped her to

the land of one Shamshunnisa Kittur in Re. Sy. No.19 and

near a defunct well, he committed rape on her and thereby

committed the offences punishable under Sections 363,

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

4. Accused pleaded not guilty to the charges

levelled against him and claimed trial.

5. In support of the prosecution case, 14

witnesses are examined as PWs.1 to 14, Exs.P1 to 17 and

MOs.1 to 4 are marked.

6. During the course of his statement under

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

incriminating evidence. He has not chosen to lead evidence

on his behalf.

7. After hearing arguments of both sides, vide the

impugned judgment and order, accused came to be

acquitted.

8. During the course of arguments, the learned

Additional State Public Prosecutor submits that the

impugned judgment and order of acquittal is contrary to

law, facts and evidence on record and as such, it is liable

to be set aside.

9. As on the date of incident, the prosecutrix was

aged 15 years 10 months i.e., not completed the age of 18

years. She has specifically spoken to about the sexual

assault on her against her consent and will. The Trial Court

has rejected her evidence on the ground that she has

turned hostile in the cross-examination. Relying upon the

decisions of the Hon'ble Supreme Court reported in

(2015) 3 SCC 220 in the case of Vinod Kumar Vs.

State of Punjab and (2017) 1 SCC 529 in the case of

Ramesh and others Vs. State of Haryana, the learned

Additional State Public Prosecutor would submit that based

on her testimony in the examination-in-chief, the Trial

Court ought to have convicted the accused. Without any

application of mind and mechanically the impugned

judgment and order came to be passed.

10. The learned Additional State Public Prosecutor

further submits that the evidence of Medical Officer

supports the charges levelled against the accused. The

Trial Court has rejected the evidence of this witness on the

ground that the FSL report is negative, as seminal stains

were not detected in MOs.1 to 4. Admittedly, the incident

took place on 10.02.2015 and the prosecutrix was

examined on 13.02.2015 and therefore, the observation of

the Trial Court regarding the absence of seminal stains is

not tenable and prays to allow the appeal.

       11.     On     the     other      hand,        learned    counsel

representing        the   accused       supported       the     impugned

judgment and order of acquittal.

12. Neither the complaint nor the statement of the

prosecutrix under Section 164 of Cr.P.C. reveals

ingredients of the offences alleged against the accused.

Her evidence on the examination-in-chief is contrary to her

statement under Section 164 of Cr.P.C. Again during her

cross-examination, she has given a clear go-bye to her

version in the examination-in-chief. The evidence of the

prosecutrix is not reliable. No conviction could be based on

such evidence and rightly the Trial Court has rejected the

case of the prosecution and acquitted the accused and

prays to dismiss the appeal also.

      13.   Heard   the   arguments     of   both   sides   and

perused the records.

14. It is the case of the prosecution that at the

relevant point of time, prosecutrix was aged 15 years 10

months. It is alleged that on 10.02.2015 at 12 in the

midnight, when the prosecutrix went out of the house,

accused, who is related to her and who was sleeping

outside his house, took her to the nearby land and

committed rape on her. The defence of accused is one of

total denial. He has contended that in the midnight when

the prosecutrix came out of the house and on enquiry, she

told that she is frustrated by repeated harassment by her

mother and wants to commit suicide, he and his family

members took her to their house and on the next day,

when they wanted to convene a panchayat, the mother of

prosecutrix lodged a false complaint.

15. PW.4 Abdulbasha Bennuru is the Headmaster

of Higher Primary School, Allipura of Savanur Taluk, where

the prosecutrix studied. At the instance of the

Investigating Officer, he has issued the certificate at Ex.P8

certifying that the date of birth of the prosecutrix is

01.04.1999. The evidence of this witness is not disputed

by the defence. Consequently, the prosecution has proved

that as on 10.02.2015, the prosecutrix has not completed

the age of 16 years.

16. On 25.07.2017 with the consent of the defence

counsel, the medical examination report of the accused is

marked as Ex.P14, according to which, accused is capable

of performing sexual intercourse.

17. PW.7 Dr.Padmavathi Pattar has examined the

prosecutrix on 13.02.2015 at 00:15 hours and given

medical report at Ex.P10. Ex.P11 is the FSL report which

states that the presence of seminal stains were not

detected in the pubic hair, vaginal swab, cervical swab and

undergarment of the prosecutrix. Considering the FSL

report, she has given final opinion at Ex.P12 that sexual

assault might have occurred one or two days earlier to her

examination.

18. PW.1 Kamalavva W/o. Maruti Bellary is the

PW.1. She is the mother of the prosecutrix. Her complaint

coupled with her testimony indicates that she is having 4

daughters including the prosecutrix. Since 10 years from

the date of her giving evidence, her husband is residing

separately at Gadag and he has contacted second

marriage and therefore, the PW.1 along with her children

and mother, is living at Savanur. In the complaint, it is

stated that on 10.02.2015 at 10:00 p.m. after having

dinner all of them went to sleep, but on the next morning,

she found that the prosecutrix is not in the house and

therefore, she made enquiry with her relatives and also

search for her. On the next day, prosecutrix returned

home and on enquiry, she revealed that since PW.1 abuses

and assaulted her frequently, on the previous night i.e., at

12 in the midnight, she has left the house. In the

complaint, it is further stated that however PW.1 suspects

that accused might have taken her and therefore she is

filing the complaint.

19. As per the complaint averments, the

prosecutrix left the house on 10.02.2015 in the midnight

and she returned home in the evening of 11.02.2015 and

complaint came to be filed on 12.02.2015. In other words,

as per the complaint, by the time complaint came to be

lodged, the prosecutrix has already returned home.

20. However, before the Court, PW.1 has deposed

that she gave the complaint two days after the prosecutrix

left the home i.e., when she gave the compliant, the

prosecutrix has not yet returned. The prosecutrix was

brought back by the uncle of the accused and people of

her area and on enquiry, the prosecutrix disclosed that

accused has raped her and in this regard, she has given

further statement. However, as per the complaint, it came

to be lodged after prosecutrix has returned, but there is no

reference to the accused having committed rape on her.

There is material inconsistence in the contents of the

complaint as well as her testimony before the Court.

21. PW.2 Anjanadevi W/o. Sankappa

Mannawaddara is the sister of the PW.1 and the aunt of

the prosecutrix. She is the resident of Hubballi. PW.5

Shekhappa S/o. Hanumanthappa Bevinahalli is the

neighbour of the prosecutrix. The testimony of PWs.2 and

5 regarding the alleged rape committed by the accused on

the prosecutrix is hear say. They have stated that they

came to know about the said incident.

22. The prosecutrix is examined as PW.8. Before

examining her oral testimony, it is necessary to refer to

her statement under Section 164 of Cr.P.C. given before

the judicial Magistrate which is at Ex.P13. It is recorded on

16.02.2015. In Ex.P13, the prosecutrix has stated that her

mother i.e., PW.1 used to abuse her if she speaks to

others smilingly and alleges that she is having relationship

with those persons and inspite of prosecutrix doing all the

household work, PW.1 used to abuse her and therefore

being frustrated, she wanted to commit suicide and she

went outside the house. At that time, accused, who is her

brother's son prevented her from going to commit suicide

and brought her back to the house. However, her mother

refused to take her in saying that she had gone with

accused and therefore, she should go with him and closed

the door. Therefore, the family members of the accused

gave her shelter and they wanted to convene a panchayat

on the next day. However, by that time, her mother had

already given the complaint. In Ex.P13, she has stated

that her father is at Gadag and she wants to go with her

father and she does not want to go back to her mother.

23. However, during the course of her evidence

before the Court, the prosecutrix has stated that she and

accused were in love with each other and her mother was

not in favour of she speaking to the accused. Therefore,

accused was pestering her to speak to him whenever she

used to go out. Speaking with regard to the incident dated

10.02.2015, prosecutrix has stated that after her mother

reprimanded her, she wanted to commit suicide and

therefore in between 10:30 p.m. to 12:00 midnight, she

went outside the house and at that time, accused was

sleeping on the platform (PÀmÉÖ) outside his house came and

spoke to her. He prevented her from committing suicide

and took her to the land of one Kittur and committed rape

on her. On the next day, when she returned home, she

informed her mother about the incident, but her mother

did not allow her to enter the house and asked her to go

with the accused. In this regard, PW.1 has given the

complaint.

24. The testimony of prosecutrix before the Court

is totally contrary to her statement given under Section

164 of Cr.P.C. in as much as the version of her mother. So

far as her statement under Section 164 of Cr.P.C. is

concerned, it is contrary to the prosecution case. Since it is

a statement given before the judicial Magistrate, the

prosecution could not dispute it and consequently there is

no cross-examination of the prosecutrix by the prosecution

with regard to the contents of Ex.P13. The prosecutrix is

cross-examined by the defence, wherein she has given a

clear go-bye to her testimony in the examination-in-chief

and admitted that on the night of the incident, when she

was going to commit suicide, her relatives and villagers

advised her and brought her back on the next day and by

that time her mother had already lodged the complaint,

she has admitted that accused never committed rape on

her. After she gave a clear go-bye to her version in the

examination-in-chief, the prosecutrix is treated as hostile

by the prosecution. During her cross-examination by the

prosecution, the prosecutrix has stated that at the instance

of her father, they have compromised. However, she has

denied that on the night of the incident, accused

committed rape on her. The examination-in-chief of the

prosecutrix coupled with the evidence of her mother i.e.,

PW.1, makes it evident that they have not stuck to a

definite version. Even the statement of the prosecutrix

before the Magistrate is contrary to the case set up by the

prosecution.

25. The testimony of PWs.1 and the prosecutrix so

far as the allegations that accused committed rape on the

prosecutrix is not reliable. It is not safe to rely upon such

evidence. Consequently, in spite of evidence of PW.4

Abdulbasha Guddesab Bennuru, the Head Master of the

School where the prosecutrix was studying that her date of

birth is 01.04.1999 and at the time of incident, she was

aged 16 years and the medical evidence spoken to by

PW.11 that the hymen and fourchette of the prosecutrix

were absent, we hold that the testimony of PWs.1 and the

prosecutrix with regard to the complicity of the accused is

not reliable. So far as the decision of the Hon'ble Apex

Court in Vinod Kumar's case, referred to supra, in the

present case, prosecutrix herself has turned hostile. Her

testimony is not reliable. Her testimony regarding the

accused committing rape on her is not supported by any

other witness. Since the evidence of the prosecutrix is

mutually destructive, no portion of her evidence could be

salvaged to bring home guilt to the accused. Consequently,

this decision is not applicable to the case on hand.

26. So far as Ramesh's case is concerned, it

refers to the tendency of neighbouring, independent as

well as related witnesses turning hostile. Had PW.1 and

other neighbouring witnesses supported the prosecution

case, it coupled with the medical evidence regarding

missing of hymen and fourchette could have been of some

help to improve the case of the prosecution. In the

absence of evidence of any independent witnesses,

inasmuch as, the prosecutrix herself turning hostile, the

above decision cannot be pressed into service to hold that

prosecution has proved the allegations against the accused

beyond reasonable doubt.

27. Taking into consideration the oral and

documentary evidence placed 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 reasons to interfere

with the decision of the Trial Court. Consequently, the

appeal filed by the State fails and accordingly it is

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Rsh / PJ