State Of Karnataka vs Manjunath S/O Shankrappa ...
2021 Latest Caselaw 7095 Kant

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          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

  DATED THIS THE 23RD DAY OF DECEMBER, 2021

                      PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                        AND

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

          CRIMINAL APPEAL NO.100248/2019
BETWEEN
THE STATE OF KARNATKA,
REP. BY THE CIRCLE POLICE INSPECTOR,
KARATAGI POLICE STATION, GANGAVATHI
RURAL CIRCLE, DIST: KOPPAL,
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
MANJUNATH S/O.SHANKRAPPA VADDARKAL,
AGE: 22 YEARS, OCC: COOLIE,
R/O. SOMANAL, TQ. GANGAVATHI, DIST: KOPPAL.
                                          ...RESPONDENT
(BY SRI. ANAND R. KOLLI, 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 14.12.2018 PASSED BY THE DISTRICT
AND SESSIONS/SPECIAL JUDGE, AT KOPPAL IN POCSO (SC)
NO.15/2015 AND CONVICT AND SENTENCE THE RESPONDENT /
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
363, 366, 376 OF IPC AND OFFENCES UNDER SECTION 6 OF
POCSO ACT, 2012.
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     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 08.12.2021, 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 respondent / accused for the offences

punishable under Sections 363, 366 and 376 of Indian

Penal Code, 1860 (hereinafter referred to as IPC) and

Section 6 of Protection of Children from Sexual Offences

Act, 2012 (hereinafter referred to as POCSO Act).

2. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

3. The allegations against the accused are that at

the relevant point of time, prosecutrix was aged 17 years.

On 30.03.2015 at 01:00 p.m., accused kidnapped the

prosecutrix with a promise to marry her and on

31.03.2015 took her to the house of CW.11 Mallesh

Doddabasappa Angadi, situated at Irandalli of Bengaluru

Rural District and stayed there for a period of 4 days.

During this period, he committed rape on the prosecutrix

and thereby committed the above said offences.

4. Accused has pleaded not guilty to the charges

levelled against him and claims trial.

5. In support of the prosecution case, in all 16

witnesses are examined as PWs.1 to 16, Exs.P1 to 25 and

MOs.1 to 8 are marked.

6. During the course of his statement under

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

incriminating evidence. He has relied upon Exs.D1 and 2

which are portion of statement of PW.2 i.e., the

prosecutrix. He has also produced six documents at the

time of recording the statement under Section 313 of

Cr.P.C.

7. After hearing arguments of both sides, vide

impugned judgment and order, the trial Court has

acquitted the accused.

8. During the course of arguments the learned

Additional State Public Prosecutor submitted that the

impugned judgment and order of acquittal is contrary to

law, facts and evidence on record and as such liable to be

set aside.

9. At the time of incident the prosecutrix, who is

examined as PW.2 was aged about 17 years. PW.4 is the

father of the complainant. Both of them have deposed

regarding the kidnapping of the prosecutrix. PW.5 the

sister of the prosecutrix was very much present when

accused kidnapped the prosecutrix and she has supported

the prosecution case. The evidence of PWs.2 and 4 also

support the case of prosecution. PW.6 the uncle of the

prosecutrix is also the scribe of the complaint. The

evidence of all these witnesses establishes the charges

levelled against the accused. The trial Court has not relied

upon evidence of these witnesses, only on the ground that

they are related and interested witnesses. Mere

interestedness or relationship is not a ground to discard

their testimony. Their evidence is to be appreciated

cautiously.

10. He would further submit that as held by the

Hon'ble Apex Court in the case of Mohammad Iqbal and

Others V/s. State of Jarkhand reported in AIR 2013

SC 3077, the evidence of prosecutrix i.e., PW.2 alone is

sufficient to convict the accused. She has deposed in detail

about her kidnapping and rape committed by the accused.

In Narender Kumar V/s. State (N.C.T. Of Delhi)

reported in AIR 2012 SC 2281, the Hon'ble Apex Court

observed that even if a woman is of a easy virtue or used

to sexual intercourse, it cannot be a license for any person

to commit rape and conviction can be based on her

evidence and the Court must act with sensitivity and

appreciate the evidence in totality of the background of the

entire case and not in isolation.

11. He would further submit that in view of the

decision of the Hon'ble Apex Court in (2012) 9 SCC 750

in the case of Ashwini Kumar Suxena V/s. State of

Madhya Pradesh, the documents at Exs.P7, 19 and 23

prove the date of birth of the prosecutrix as 04.08.1997

and as such, on the date of incident i.e., 30.03.2015 she

was aged 17 years. This fact is not appreciated by the trial

Court. In view of proof of age of the prosecutrix, the

documents produced by the accused during 313 statement

cannot be relied upon. Therefore, relying upon the

documents produced by the accused at his 313 statement,

the trial Court has erred in holding that, as on the date of

incident the prosecutrix was major. The trial Court has also

not given due importance to the statement of the

prosecutrix under Section 164 of Cr.P.C. and also holding

that the medical evidence is negative. The trial Court has

also failed to raise presumption under Sections 29 and 30

of POCSO Act and prays to allow the appeal, set aside the

impugned judgment and order of acquittal and convict the

accused and sentence him appropriately.

12. On the other hand, the learned counsel

representing the accused submitted that as on the date of

alleged incident the prosecutrix was major and the

prosecution has failed to prove that accused kidnapped the

prosecutrix and raped her. In the absence of legal

evidence the trial Court has rightly acquitted the accused.

He would further submit that after the acquittal, the

presumption of innocence of the accused is fortified and

prays to dismiss the appeal.

13. We have heard the arguments of both sides and

perused the records.

14. Thus, the State has challenged the impugned

judgment and order of acquittal passed by the trial Court

holding that as on the date of incident prosecutrix was

major i.e., had completed the age of 18 years and the

prosecution has failed to establish that she was

kidnapped/abducted and raped by the accused. According

to the prosecution, the date of birth of the prosecutrix is

04.08.1997. On the other hand, the accused has

contended that the date of birth of the prosecutrix is

16.04.1996.

15. In order to prove the age of the prosecutrix

the prosecution has relied upon the evidence of PW.13

Mahesh Kumar, the Head Master of the Higher Primary

School, where the prosecutrix took admission for First

Standard. PW.14 is the Assistant Teacher who has made

the entry in the Admission Register pertaining to the

admission of the prosecutrix. Ex.P7 is the application for

admission. Ex.P19 is the original school Admission Register

and after retaining photocopy of the relevant portion at

Ex.P19(a), the original register has been returned.

Therefore, Ex.P19(a) is the relevant portion of the

admission register pertaining to the prosecutrix. Ex.P18 is

the certificate issued by the school regarding the date of

birth of the prosecutrix. Ex.P23 is the original SSLC marks

card. In all these documents, the date of birth of the

prosecutrix is given on 04.08.1997. If these documents are

taken into consideration, then as on the date of incident

the prosecutrix was aged 17 years i.e., she has not

completed the age of 18 years. In view of the fact that the

accused has disputed that the date of birth as reflected in

these documents is the correct date of birth of the

prosecutrix and on the other hand, according to the

accused, the prosecutrix was born on 16.04.1996, the

evidence of PWs.13 and 14 is to be examined as to

whether the entries made in the School Register at the

time of admission of the prosecutrix are correct.

16. Before appreciating the oral and documentary

evidence placed on record, it is necessary to refer to some

of the decisions of the Hon'ble Apex Court as to how the

date of birth of a child in conflict with law as well as

children who are victims is to be ascertained. In the

decision reported in (2013) 14 SCC 637 in the case of

Mahadeo S/o. Kerba Maske Vs. State of Maharashtra,

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"), 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."

17. 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").

However, 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.

18. However, in the 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.

19. 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 Rules 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.

20. 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 in pari

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

the age of the juvenile or a victim under POCSO Act.

21. In the light of the ratio in the above decisions,

it is to be examined whether 04.08.1997 as the date of

birth entered in Exs.P7, 18, 19(a) and 23 is to be accepted

as correct or 16.04.1996, as per the birth certificate

produced by the accused during his statement under

Section 313 of Cr.P.C.

22. PW.13 Mahesh Kumar, the Head Master of the

School has given evidence based on the entries in the

original Admission Register. Since he is not the one who

has made the entries in the Register, the prosecution has

examined PW.14 the Assistant Teacher. He has deposed

that at the time of admission of the prosecutrix he was

working as Head Master. He has stated that the

prosecutrix was admitted to the School by her uncle

Yamanoorappa Patil, who is examined as PW.6. The

evidence of PW.14 prove that at the time of admission,

birth certificate was not produced and only on the basis of

oral instructions and entry in the application, the

prosecutrix was admitted to the school. It is pertinent to

note that in the application for admission at Ex.P7 as well

as in the Admission Register at Ex.P19(b) there are

overwriting with regard to the month and year of birth of

the prosecutrix. In this regard, PW.14 has deposed that

earlier, the month was given as July and year of birth was

given as 1998 and after the said Yamanoorappa observed

it and instructed that it was August-1997, the said

correction has been made. According to the original entry

i.e., July-1998 means as on the date of the incident the

prosecutrix was 16 years as against 17 years claimed by

the prosecution. The overwriting and earlier entry and its

correction would help the accused by increasing the age of

the prosecutrix by one year. Therefore these overwriting

and corrections are not prejudicial to the accused. PW.14

has clearly stated that after these entries have been

corrected, signatures have been made endorsing the

correction.

23. Ex.P18 is the certificate issued by the School

certifying the date of birth as 04.08.1997 as per the

entries in the School Register. This entry is based on the

application for admission as well as the admission register.

As per these documents, as on the date of incident the

prosecutrix was only 17 years. Now it is to be examined

whether these entries reflect the true date of birth of the

prosecutrix. As discussed earlier, while admitting the

prosecutrix to the school, her guardian i.e., PW.6

Yamanoorappa has not produced the birth certificate and

the entries therein are based on his oral say.

24. Denying and disputing that the prosecutrix was

born on 04.08.1997 as reflected in the School records

including the SSLC Marks card, the accused has produced

the certified copy of birth certificate issued by Tahasildar,

Kushtagi. As per this document, the mother of the

prosecutrix i.e., Basawwa Sharanappa Dandin has given

birth to a female child on 16.04.1996 and the date of

registration is 28.04.1996. During the cross-examination

of the prosecutrix as well as her father and uncle, it is

elicited that the prosecutrix was born at Ryavanaki which

is the maternal home of the mother of the prosecutrix. In

order to show that 04.08.1997 is not registered as the

date of birth of the prosecutrix either at Kushtagi or

Koppal, the accused has produced endorsement given by

the respective Tahasildars that no entry of the child of the

parents of the prosecutrix with the date of birth

04.08.1997 is registered either at the Ryavanaki of the

Kushtagi Taluk, Koppal District or at Somanal of

Gangavathi Taluk, Koppal District. In the birth certificate

dated 16.04.1996 of the female child of the parents of the

prosecutrix, the name of the child is given as Nagaratna,

whereas the name of the prosecutrix is not Nagaratna. It is

pertinent to note that as per the evidence placed on

record, the parents of the prosecutrix are having only 2

daughters of which the prosecutrix is the eldest. Her

younger sister i.e., PW.5 Manjula is 4 years younger to the

prosecutrix. In spite of the fact that in the birth certificate

the name of the child is given as Nagaratna, we have no

hesitation to hold that it pertains to the prosecutrix. The

possibility of subsequently changing the name of the child

can not be ruled out. Therefore, based on the

preponderance of the probabilities, the accused has

established that the prosecutrix was born on 16.04.1996

and as such she was major as on the date of alleged

incident.

25. This contention gets support from the

statement of the prosecutrix given under Section 164 of

Cr.P.C. before the Judicial Magistrate. This document is

marked as Ex.P4. This is the earliest version of the say of

the prosecutrix and it is recorded before the judicial

magistrate. While giving her statement, she has stated her

age to be 18 years. She has specifically stated that she

was born during the year 1996, but she do not remember

the date and month of her birth. During the course of her

statement she goes on stating that she is in love with

accused and wanted to marry him, but it was opposed by

her parents and she was confined in the home etc.

26. However, while giving evidence before the

Court, dramatically she has changed her version claiming

that she was minor as on the date of her kidnapping etc.

However, her oral testimony before the Court while giving

the evidence is contrary to her statement under Section

164 of Cr.P.C. In view of the fact that while admitting the

prosecutrix to the School, her birth certificate was not

given and the entry in the School Register and subsequent

entry in the SSLC marks card which is based on the School

Admission Register cannot be accepted as conclusive proof

of her date of birth, vis-a-vis the certified copy of the birth

certificate produced by the accused. Therefore, based on

these documents, the trial Court has came to a correct

conclusion that as on the date of the alleged offence, the

prosecutrix was major. We find no perversity in the said

conclusion and it is based on admissible documents.

27. When once it is held that as on the date of the

incident, the prosecutrix was not minor, the oral testimony

regarding the kidnapping / abduction of the prosecutrix

and the rape committed by the accused are to be

examined keeping in mind that as on the date of the

alleged offence, the prosecutrix was major. During the

course of her evidence, the prosecutrix has stated that on

the date of incident, while she was sitting outside the

house, accused came and forcibly took her with him. She

states that from Somanal, accused took her in a Bus to

Karadagi, from there to Gangavathi and at 08:00 p.m. in

they boarded the Bengaluru Bus and on the next day at

07:30 a.m., they reached K.R.Puram. She has also

deposed that from K.R.Puram accused took her to the

house of PW.10 Mallesha and they stayed in his house for

a period of 5 days and during night of all these 5 days,

accused committed rape on her against her will.

Admittedly at the time of incident, the prosecutrix was

major. She has not raised any hue and cry and tried to get

any help from the public or anyone, against the accused

forcibly taking her. The very fact that as on the date of the

incident she was a major and she did not raise any

objections for being taken goes to show that she has

willingly gone with the accused.

28. The medical examination of the prosecutrix as

per Ex.P9 does not disclose any injuries on her person to

show her resistance to the rape committed by the accused

against her will. The FSL Report at Ex.P11 does not refer

to the presence of seminal stains or spermatozoa on the

clothes of the prosecutrix. Even though the final opinion at

Ex.P12 state that the prosecutrix was used to an act like

that of sexual intercourse as hymen was found to be

ruptured, it supports the statement of the prosecutrix

under Section 164 of Cr.P.C., that as on the date of

incident, she was major and as such she willingly went

with the accused. In view of her statement under Section

164 of Cr.P.C. at Ex.P4 as well as her birth certificate

produced by the accused during 313 statement, goes to

show that the oral testimony of the prosecutrix before the

Court is not reliable and trustworthy. For reasons best

known, before the Court, the prosecutrix has dramatically

changed her version and claimed that the accused took her

forcibly and committed rape on her against her will.

29. 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 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 offences punishable

under Sections 363 and 366 of IPC.

30. 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 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 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 is not detected as noticed in the

FSL Report and thereby it is not supporting the prosecution

case.

31. 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 at

any stage after being allegedly abducted is wholly

unnatural. Therefore, conviction solely on the testimony of

prosecutrix is not sustainable. Thus from the material

placed on record, it is evident that as on the date of

incident, the prosecutrix was a major and she has willingly

accompanied the accused on her own volition.

Consequently, the prosecution has failed to establish that

there was a kidnapping / abduction and rape of the

prosecutrix.

32. In Mohammad Iqbal Singh's case, referred

to supra, relied upon by the prosecution, the Hon'ble

Supreme Court held that, even solitary evidence of

prosecutrix is sufficient to convict the accused. However,

such evidence must be cogent, convincing and reliable. As

discussed above, in the present case, the testimony of

prosecutrix is not reliable and it does not inspire the

confidence of the Court. Therefore, we hold that this

decision is not applicable to the case on hand.

33. So far as Narender Kumar's case, referred to

supra, relied upon by the prosecution, wherein the Hon'ble

Apex Court held that even if a woman is of a easy virtue or

use to sexual intercourse, it cannot be license for any

person to commit rape and conviction can be based on her

evidence. In the present case the prosecution has failed to

prove that as on the date of incident, prosecutrix was

minor and accused has committed rape on her against her

will. Therefore we hold that this decision is also not

applicable to the case on hand.

34. Taking into consideration all these aspects the

learned Special Judge has come to a correct conclusion

and acquitted the accused. We find no perversity in the

conclusions drawn by him. In the result, the appeal filed by

the State fails and accordingly it is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

PJ / Rsh