Karnataka High Court
Miss Kalavathi vs Madivalappa on 9 July, 2021
Author: R.Devdas And J.M.Khazi
CRL.A.NO.100095/2017
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100095/2017
Between:
Miss Kalavathi D/o. Yelappa Kardiguddi,
Aged about 19 years, Occ: Student,
R/o: Pularkoppa, Bailhongal Tq.,
Belagavi Dist.
...Appellant
(By Sri. Shivaraj C. Bellakki, Adv.)
And:
1. Madivalappa S/o. Fakirappa Karadiguddi,
Age 23 years, R/o. Phularkoppa,
Tq. Bailhongal, Dist. Belagavi.
2. Suresh S/o. Irappa Talwar,
Age: 26 years, R/o. Bassapur
Tq. Kittur, Dist. Belagavi.
3. Kamalavva W/o. Fakirappa Karadiguddi,
Age: 42 years, R/o. Phularkoppa,
Tq. Bailhongal, Dist. Belagavi.
4. Bhimavva @ Baby W/o Muhammed Mulla,
Age: 47 years, R/o. Lokolli now at Avarolli.
Tq. Kanapur, Dist. Belagavi.
CRL.A.NO.100095/2017
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5. Namdev S/o. Mallappa Kambale,
Age: 27 years, R/o. Kudhremani.
Tq. & Dist. Belagavi.
6. The State
By Public Prosecutor,
High Court, Dharwad.
...Respondents
(By Sri.A.B.Koni, Adv. for R1 to R3,
Sri.Santosh Malagoudar, Adv. for R5,
Sri.V.M.Banakar, Addl. S.P.P. for R6,
R4 served)
This Criminal Appeal is filed under section 372 of
Cr.P.C., praying to call for the entire records in S.C.No.159 of
2013 and allow the Criminal Appeal by setting aside the
judgment of acquittal passed by the 3RD Addl. District and
Sessions Judge (Special Court for prevention and protection of
children from sexual offences) Belagavi in S.C.No.159 of 2013
dated 21.12.2015 and pass order of convicting the accused
Nos.1 to 5 for the offences punishable under Sections 366,
368, 376(H), 343 of IPC read with section 149 and 4 of
POCSO Act.
This Criminal Appeal having been heard and reserved for
judgment on 29.06.2021, coming on for pronouncement of
judgment this day, J.M.Khazi J., delivered the following:
CRL.A.NO.100095/2017
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JUDGMENT
Being aggrieved by the judgment and order dated
21.12.2015 in S.C. No.159/2013 on the file of 3rd Additional
District and Sessions Judge and Special Court for Protection of
Children from Sexual Offences, by which the Trial Court
acquited all the accused persons for the offences punishable
under Sections 366, 368, 376, 109 of the Indian Penal Code,
1860 ("IPC" for short) read with Section 4 of the Protection of
Children from Sexual Offences Act, 2012 ("POCSO Act" for
short), the appellant, who is the victim before the Trial Court
has filed this appeal under Section 372 of the Code of Criminal
Procedure, 1973 ("Cr.P.C." for short).
2. For the sake of convenience, the respondents are
referred to as accused Nos.1 to 5 and appellant, who is the
victim is referred to as prosecutrix.
3. The allegations against the accused persons are
that at the relevant point of time, the prosecutrix was aged 17
years 7 months. On 02.02.2013 at about 04:30 p.m., the
prosecutrix alongwith her friend CW.11 Netravati, after
attending the computer exam, were proceedings towards Bus
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Stop to go to Phularkoppa and at that time, accused Nos.1
and 2 approached the prosecutrix and on the pretext of
dropping her to the village, kidnapped the prosecutrix on
motorbike bearing No.KA-24/Q-1889 and took her to Avarolli
Village and confined her in the house of accused No.4 from
02.02.2013 to 05.02.2013. It is further case of the
prosecution that during this period, accused Nos.1 and 4
prevented the prosecutrix from escaping from the house and
from 02.02.2013 to 04.02.2013 during the night, accused
No.1 forcibly had sexual intercourse with the prosecutrix.
4. It is further alleged that while accused Nos.1 and
3 confined the prosecutrix in the house of accused No.4,
accused No.3, the mother of accused No.1 called him over the
phone and advised him to take the prosecutrix somewhere far
away and that she will take care of everything and on the
instigation of accused No.2, on 05.02.2013 accused Nos.1 and
5 forcibly took the prosecutrix to Kudala of Maharashtra and
confined her in the rented house of the accused No.5 till
09.02.2013 and in this house also accused No.4 prevented the
prosecutrix from leaving the house and thereby all the
accused persons have committed the above said offences.
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5. Charge is framed against accused Nos.1 to 5 for
the offences punishable under Sections 366, 368, 376, 109 of
IPC read with Section 4 of POCSO Act. Since they have denied
the allegations and claimed to be tried, in support of the
prosecution case, 15 witnesses are examined as PWs.1 to 15
and Exs.P-1 to 25 are marked. During the course of their
statement, the accused persons have denied the incriminating
material referred to them.
6. Accused No.1 has stepped into witness box by
examining himself as D.W.1. No documents are marked on
behalf of the accused persons.
7. After hearing the arguments on both sides, the
Trial Judge was pleased to acquit the accused persons of all
the charges holding that the prosecution has failed to establish
the charges against the accused beyond reasonable doubt.
8. During the course of arguments, the learned
counsel representing the appellant i.e., prosecutrix submitted
that the Trial Court has failed to consider the evidence of
PWs.1 to 15, who have supported the prosecution case and
has wrongly assumed the age of the victim as above 18 years.
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He submitted that in the presence of SSLC marks card of the
prosecutrix, her age is to be accepted as 17 years 7 months
as on the date of the incident and therefore, the Trial Court
was in error in holding that the prosecutrix was more than 18
years of age. The learned counsel representing the prosecutrix
further submitted that in the light of the evidence of PW.12
i.e., the friend of the prosecutrix, it is established that accused
No.2 helped accused No.1 in kidnapping the prosecutrix. The
Trial Court has failed to appreciate the fact that prosecutrix
and accused No.1 are cousins and therefore she has not raised
any alarm while being kidnapped on the motorbike. He would
submit that the allegations made against the accused are
substantiated by the evidence of the prosecutrix on oath, who
has in unequivocal terms deposed that while confining her in
the house of accused No.4, accused No.1 committed rape on
her. Her evidence further established the fact that on
05.05.2013 from Avarolli, the prosecutrix was taken to Kudala
of Maharashtra and kept in the house of accused No.5, where
accused No.4 prevented her from escaping and oral as well as
documentary evidence placed on record prove these facts.
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9. The learned counsel further submitted that the
evidence of the Medical Officer prove the fact that the
prosecutrix was subjected to forcible sexual intercourse and
without appreciating the oral and documentary evidence
placed on record, the Trial Court has wrongly come to the
conclusion that the charges are not proved and prays to allow
the appeal.
10. On the other hand, the learned counsel
representing the accused persons have supported the
impugned judgment and submitted that after examining the
entire oral and documentary evidence, thread bear, the Trial
Court has rightly held that the charges levelled against the
accused are not proved and on account of civil dispute
regarding the landed property, accused No.1 has been falsely
implicated and accused Nos.2 to 5 are also implicated to
support the case of the prosecution and prays to dismiss the
appeal.
11. We have heard the learned counsel representing
the prosecutrix as well as the accused persons and perused
the record.
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12. It is the definite case of the prosecution that on
02.02.2013 at about 04:30 p.m., under the pretext of
dropping her to Village Phularkoppa, accused No.1 with the
help of accused No.2 kidnapped the prosecutrix knowing well
that she was a minor aged 17 years 7 months, with the
intention of committing rape on her and took her to Avarolli
and confined her in the house of accused No.4 and from
02.02.2013 to 04.02.2013 accused No.1 raped on her. The
further allegations against the accused No.1 is that on the
instigation of his mother i.e., accused No.2, accused No.1 with
the help of accused Nos.4 and 5, took the prosecutrix to
Kudala of Maharashtra and confined her in the house of
accused No.5 from 05.02.2013 to 09.02.2013 and during the
stay of the prosecutrix at Kudala also, accused No.4 guarded
her from escaping. The charges levelled against accused No.2
is that she being the mother of accused No.1, instigated him
to take the prosecutrix far away from her parents. The
allegations against accused No.5 is that he has allowed
accused No.1 to confine the prosecutrix in his house.
13. Of course, the accused persons have denied the
allegations made by the accused persons in toto. They have
CRL.A.NO.100095/2017
set up a defence that the grandfather of accused No.1 is
having 1 acre of land in Marikatti Village and the father of
prosecutrix has offered to purchase it for `30,000/- and on the
basis of oral understanding, he had paid `30,000/- and for 3
years he cultivated the said land. The accused No.1 has set up
a definite defence that he was not interested in parting with
the said land and therefore with the help of accused No.2 he
managed to get `30,000/- and return the same to the father
of the prosecutrix, but he was not ready to part with the said
land and on account of this dispute, the relationship between
the family of the prosecutrix and that of accused No.1 became
strained.
14. It is further contended by the accused persons
that prosecutrix is a very intelligent student and she scored
81% in SSLC and she was interested in prosecuting her
further studies. The accused persons have alleged that since
the father of the prosecutrix arranged to perform the marriage
of prosecutrix, she left the house without informing her
parents and went to her friend Mala, who was studying in
Dharwad by staying in the hostel and misusing this situation,
the father of the prosecutrix has chosen to file a false
CRL.A.NO.100095/2017
complaint against accused No.1 and the other accused are
also tagged to make out a case against accused No.1.
15. In fact, the accused persons have taken up a
specific defence that after the prosecutrix return to the village,
she was not at all inclined to file any false complaint against
accused persons and for this reason, the Investigating Officer
was also not ready to register the case, but pressuring him
through the Superintendent of Police, the father of the
prosecutrix has managed to register the case against the
accused persons. In the light of the specific defence taken by
the accused persons, heavy burden is on the prosecution to
establish that not only accused No.1 with the help of accused
No.2 kidnapped the prosecutrix and confined her at Avarolli as
well as at Kudala of Maharashtra, but also while her stay at
Avarolli, he committed rape on her.
16. Since the accused persons have denied that as on
the date of the alleged incident, the prosecutrix was still a
minor, it is for the prosecution to prove that as on that date
she was aged 17 years 7 months. To establish this fact, the
prosecution has relied upon the SSLC marks card of the
CRL.A.NO.100095/2017
prosecutrix at Exs.P-7 and 8. Ex.P-7 is the original marks
card, whereas Ex.P-8 is the attested copy. As per this
document, the date of birth of the prosecutrix is 20.07.1995
which makes her age 17 years 7 months as on the date of the
incident in question. Both the prosecutrix i.e., PW.2 as well as
her father PW.1 are cross-examined at length suggesting that
as on the date of the alleged incident, the prosecutrix has
completed 18 years and as such, she was a major and that
while admitting her to the school, her age was reduced. Of
course they have denied such suggestion.
17. To establish that the prosecutrix was a major as
on the date of the alleged incident, the accused persons have
relied upon missing complaint at Ex.P-1, wherein her age is
shown as 18 years. The accused persons have also relied upon
Ex.P25, the Medical Examination Report of the prosecutrix,
wherein her approximate age is given as 18 to 19 years.
Admittedly the complainant i.e., the father of the prosecutrix
is an illiterate person and while filing missing compliant, he
has tentatively given the age of the prosecutrix as 18 years
and therefore, it cannot be considered as the basis for
determining her age. Even while conducting medical
CRL.A.NO.100095/2017
examination of the prosecutrix, the Medical Officer has based
the age of the prosecutrix on the Radiology Report as well as
the Dental Report and given her dental age as 17 to 19 years
and approximate skeleton age as 18 to 19 years. Admittedly,
the Ossification Test is not conducted. In the presence of the
SSLC marks card, the determination of the age of the
prosecutrix by indirect method cannot be resorted to and
SSLC marks card shall be the basis of her date of birth. In
respect of this contention, the learned counsel representing
the appellant - prosecutrix has relied upon the decision of the
Hon'ble Supreme Court in the matter of Mahadeo S/o.Kerba
Maske Vs. State of Maharashtra and another reported in
2013 14 SCC 637. In this decision, the Hon'ble Supreme Court
making reference to the statutory provisions contained in the
Juvenile Justice (Care and Protection) Rules, 2007, wherein
under Rule 12, the procedure to be followed in determining
age of the juvenile have been set out, held that in every case
concerning a child or juvenile in conflict with the law, the age
determination enquiry shall be conducted by the Court or the
Board or, as the case may be, by the committee seeking
evidence by obtaining:
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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 municipality authority or
panchayat.
18. Therefore as held by the Hon'ble Supreme Court,
preference has to be given to a matriculation or equivalent
certificate if available and only in the absence of the same, the
other mode of determination of the date of birth is to be
resorted to. In the present case admittedly, the matriculation
certificate of the prosecutrix is available and according to the
same, as on the date of the alleged incident, the prosecutrix
was aged 17 years 7 months and as such, she was a minor.
19. Thus, after holding that as on the date of the
alleged incident, the prosecutrix was aged 17 years 7 months
and a minor, now it is to be examined whether the prosecution
has proved that on 02.02.2013, accused No.1 with the help of
accused No.2 kidnapped prosecutrix and took her first to
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Avarolli and confined her their till 04.02.2013 and during this
period, he committed rape on her and on 05.02.2013 from
Avarolli, he with the help of accused Nos.4 and 5 took the
prosecutrix to Kudala of Maharashtra and confined her in the
house of accused No.5.
20. The prosecutrix was allegedly kidnapped on
03.02.2013. Her father after searching for her and after
enquiring with her friend i.e., CW.11 Netravati has filed
complaint as per Ex.P1. In Ex.P-1, the complainant has stated
that from CW.11 Netravati, he came to know that while the
prosecutrix and Netravati were at Sangolli Rayanna Cricle,
accused No.1 approached them and on seeing accused No.1,
the prosecutrix asked Netravati to go and that she will come
later. In this complaint, there is no reference to the presence
of accused No.2. The contents of this complaint at Ex.P-1
indicates that on seeing accused No.1, it is the prosecutrix
who told her friend to go ahead and that she will come later.
The complaint does not state that it is accused No.1, who
directed CW.11 Netravati to go ahead and that the prosecutrix
will come later. This observation is made because in the
subsequent complaint, the version is given otherwise. Thus, at
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the earliest available opportunity, there is no allegations
against accused No.2 that he was present alongwith accused
No.1. Moreover, in Ex.P-1 there is also no allegations that the
complainant is suspecting the involvement of accused No.1 in
missing of his daughter. He is not making any allegations
against accused No.1. In the said complaint, he is not
attributing any motive to the family of accused No.1 i.e., he is
not alleging that there is any ill will between his family and
that of accused No.1.
21. It is the definite case of the prosecution that on
09.02.2013, the prosecutrix was rescued from Kudala by the
Police and after she was brought back, she was kept at Shri
Sharada Mata Swadhara Kendra, Mahila Punarvasati Kendra,
run by United Samaja Kalyana Samsthe situated at Shahu
Nagar, Belagavi ("Rehabilitation Centre" for brief). After
meeting the prosecutrix, complainant i.e., her father has given
a further complaint at Ex.P-2 alleging that on 02.02.2013,
accused No.2 was also present alongwith accused No.1 and he
helped accused No.1 to kidnap the prosecutrix by carrying her
on a two wheeler driven by accused No.1 and they made the
prosecutrix to sit in the middle and after the prosecutrix,
CRL.A.NO.100095/2017
accused No.2 sat and thereby they prevented the prosecutrix
from escaping. In Ex.P-2, the complainant has also made
allegations that through telephonic communication, accused
No.3 i.e., the mother of accused No.1 abetted accused No.1 to
take the prosecutrix from Avarolli to any other far away place
away from her parents and on that basis, she is implicated. In
the further complaint at Ex.P-2, the complainant has also
made allegations that at Avarolli, accused No.4 helped
accused No.1 to confine the prosecutrix in her house and
prevented her from escaping. So also, there is allegation that
while taking the prosecutrix from Avarolli to Kudala, accused
Nos.4 and 5 helped accused No.1 and at Kudala, the
prosecutrix was confined in the house of accused No.5 and
there also accused No.4 guarded her and prevented from
escaping. All these allegations are forthcoming for the first
time in Ex.P-2 and all these allegations are hearsay so far as
complainant is concerned. He is making these allegations only
on the basis of the alleged information provided to him by the
prosecutrix.
22. It is pertinent to note that immediately after the
prosecutrix was rescued and brought back to the Police
CRL.A.NO.100095/2017
Station, the Investigating Officer has not chosen to get her
medically examined at the earliest available opportunity.
Immediately after the prosecutrix returned from Kudala, her
statement is not recorded by the Investigating Officer. It has
come in the evidence of the prosecutrix that from Kudala, she
was brought to Bailhongal and from Bailhongal she was taken
to Belagavi and kept in the Rehabilitation Centre. She has
admitted that from Bailhongal while going to Belagavi, they
are required to pass through their village and she has stated
that even though she told the Police that she want to meet her
parents, they refused saying that first her medical
examinations is required to be done and thereafter she can
meet her parents and they have already sent words to her
parents. Even where it is accepted that the medical
examination of the prosecutrix was required to be done and
therefore she was initially kept in the Rehabilitation Centre,
there was no impediment for the Investigating Officer to
record her statement. Instead of so doing, he has taken the
complaint from her father and based on it, registered the case
against the accused persons. As already noted, the contents of
the complaint at Ex.P-2 are based on the hearsay information
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which the complainant has allegedly received from his
daughter and it is inadmissible. The accused persons have
taken up a definite contention that the prosecutrix was not at
all kidnapped by accused No.1 and on the other hand, she had
gone to Dharwad and stayed in a hostel with her friend Mala
and therefore when she returned on her own, she was not
ready to falsely implicate the accused persons and as such,
she refused to go to her house and therefore she was kept in
the Rehabilitation Centre. In fact, the Investigating Officer,
who is examined as PW.14 i.e., Ramesh Basappa Gokak has
specifically deposed that after the medical examination of the
prosecutrix, since she refused to go with her parents, she was
sent to Rehabilitation Centre.
23. This conduct of the prosecutrix supports the
defence that she was not ready to go to her parents and she
was also not ready to give statement against the accused
persons and as such, her father has managed to file a
complaint saying that he received the information through her
daughter and based on it he is filing the complaint.
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24. It is also relevant to note that even after the
father of the prosecutrix i.e., complainant has lodged the
complaint as per Ex.P-2, the Investigating Officer has neither
recorded the statement of the prosecutrix under Section 162
Cr.P.C. nor got her statement recorded through the
jurisdiction magistrate under Section 164 Cr.P.C. On this
aspect also the defence has contended that because the
prosecutrix was not ready to give statement as desired by her
father, the Investigating Officer due to pressure from his
higher officials did not choose to get her statement recorded
before the jurisdictional magistrate. On the other hand, he has
stated to have recorded the statement of the prosecutrix in
her own hand writing at Ex.P-3 and it is signed by her.
25. Ex.P-3 is treated as statement under Section 162
Cr.P.C., then as mandated by this Section, such statements
shall not be signed. Even though the object behind not getting
the signature of the witness to the statement under Section
162 Cr.P.C. is to safeguard the witness from being prosecuted
for perjury, the very fact that signature of the witness is taken
creates a doubt as to the intent behind the signature being
taken. Moreover, as per proviso to Section 162 Cr.P.C., any
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part of such statement, if duly proved can be used by the
accused and with the permission of the Court by the
prosecution to contradict the witness in the manner provided
by Section 145 of the Indian Evidence Act and when any part
of such statement is so used, any part thereof may also be
used in the re-examination of such witness, but for the
purpose only of explaining any matter referred to in his cross-
examination. Even though the prosecutrix has totally
supported the case of the prosecution, her entire statement is
marked as Ex.P-3.
26. Assuming for the sake of argument that the
statement of the prosecutrix at Ex.P-3 is admissible, now it is
necessary to examine, whether based on such statement and
the evidence of the prosecutrix on oath before the Court, the
prosecution has proved the allegations against the accused
persons beyond reasonable doubt. Having regard to the fact
that the prosecutrix alone i.e., PW.2 alone is the witness to all
the allegations made against the accused persons, it is
necessary to examine whether she is a reliable witness and
whether her evidence could be relied upon to hold the accused
persons guilty of the charges levelled against them.
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27. As already noted, at the earliest available
opportunity, when Ex.P-1 missing complaint was filed, there
was no reference to accused No.2. For the first time his name
appears in Ex.P-2 based on the alleged information furnished
by the prosecutrix. Before the Court also, the prosecutrix has
deposed that alongwith accused No.1, accused No.2 was also
present and even though she was reluctant to go with accused
No.1, accused No.2 said that there is no need to be afraid of
and that they will drop her to Village, so saying, both accused
persons made the prosecutrix to sit in between them and took
her to Avarolli. At this stage, it would be useful to examine the
evidence of PW.12 Netravati, who is admittedly the friend of
the prosecutrix and who saw her alongwith accused No.1 after
finishing their computer exam and while they were going
towards the Bus Stop to catch the bus. During the course of
her evidence, she has stated that when they came to
S.R.Circle i.e., Sangolli Rayanna Circle, they found accused
No.1 and he called the prosecutrix and started speaking to her
and as it was late, she returned to her house. Before the
Court, this witness based on whose alleged statement, the
complainant gave the missing complaint at Ex.P-1, referring to
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the presence of accused No.1, she has not even stated that it
was accused No.1 who offered the prosecutrix to drop her on
his motorbike. She has said nothing about the presence of
accused No.2. The Investigating Officer has recorded the
statement of PW.12 as though she met the prosecutrix at
Rehabilitation Centre and came to know about the incident.
However, during the course of her examination-in-chief, she
has flatly denied having met the prosecutrix at the
Rehabilitation Centre. She is treated as hostile by the
prosecution and cross-examined. However, during her cross-
examination by the prosecution, she has denied that she came
to know about the involvement of all the accused persons
through the prosecutrix. Evidence of this witness does not
support the case of the prosecution that while the prosecutrix
was going towards the Bus Stop, accused No.1 offered to drop
her and accused No.2 was also present and both of them
insisted her to accompany them and therefore she left her and
went home alone.
28. The fact that at the earliest available opportunity,
there was no mention regarding the involvement of accused
No.2 and after realizing that the Courts may not accept the
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case of the prosecution that accused No.1 forcibly took the
prosecutrix on the motorbike, it appears as an after thought,
the complainant has invented the story of accused No.2
helping accused No.1 to kidnap the prosecutrix. In fact, during
the course of the cross-examination of the prosecutrix, it is
brought on record that when accused Nos.1 and 2 forcibly
took the prosecutrix to Avarolli, there was still day light and
they passed through several big and small villages and the
prosecutrix had the opportunity to shout and attract the
attention of the passer by. In fact, at para 49 of her evidence,
the prosecutrix has stated that the people who were present
at the S.R.Circle might have seen the accused persons forcibly
making her to sit on the motorbike. Admittedly, the S.R.Circle
is a busy circle with many shops surrounding the area and
with people moving around. If at all accused Nos.1 and 2
forced her to go with them, there was no impediment for her
to shout for help. Similarly, while proceeding from Bailhongal
to Avarolli, if at all the accused persons forcibly took her on
the motorbike, she had several opportunities to shout for help
and attract the attention of the public. The evidence of the
prosecutrix that she was forcibly taken by accused Nos.1 and
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2 does not inspire confidence and her testimony is not reliable
and acceptable.
29. Now coming to the case of the prosecution that at
Avarolli, the prosecutrix was forcibly confined in the house of
accused No.4. During the cross-examination of the
prosecutrix, it is elicited that the said house was a very small
house consist of a single room divided into two portions with a
dividing half wall (CqÀØ UÉÆÃqÉ). It is not having any toilet inside
the house. The prosecutrix has specifically deposed that in
order to answer the nature's call, the person is required to go
outside the village in the open field. During the course of her
evidence, the prosecutrix has deposed that for all the three
days while she was confined in the said house, she did not go
to answer the nature's call. In this regard, she has deposed
that all these three days, she did not consume any food and
thereby suggesting that there was no need for her to go to
relieve herself. She has also deposed that accused No.4 gave
her bath in the bathroom which is situated outside the house.
It is elicited in the cross-examination of the prosecutrix that
accused No.4 is a middle aged woman with a limp i.e., she
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walks with a limp and it cannot be accepted that prosecutrix
who is an young lady on the verge of attaining majority was
prevented by such a middle aged woman with a limp from
leaving the house.
30. Though prosecutrix has stated that in the three
days while she was staying in the house of accused No.4, she
did not consume any food, she has specifically stated that
during this period she consumed water. Even for relieving
herself i.e., to urinate, she was required to go outside as the
bathroom was outside the house. If at all the accused Nos.1
and 4 had confined the prosecutrix in the said house, atleast
while going to relieve herself i.e., to urinate in the bathroom,
there was opportunity for her to attract the attention of the
people living in the neighbouring house or atleast run away.
The evidence to the contrary by the prosecutrix does not
inspire the confidence of the Court.
31. Now coming to the case of the prosecution that
from Avarolli, accused Nos.1, 4 and 5 took the prosecutrix on
two wheeler to Kudala of Maharashtra and confined her in the
house of accused No.5. In her statement at Ex.P-3, the
CRL.A.NO.100095/2017
prosecutrix has not stated how she was taken from Avarolli to
Kudala. She has only stated that on 05.02.2013, accused
Nos.1, 4 and 5 took her to Kudala and kept her in the house of
the sister of accused No.5 i.e., by name Bharati Maruti
Kambale. However, before the Court she has improved her
version by saying that accused No.1 took her on a motorbike
with accused No.5 as a pillion rider i.e., she was made to sit in
between accused Nos.1 and 5 and accused No.4 came on
another motorbike.
32. It is not the case of the prosecution that two
motorbikes were used to transport the prosecutrix from
Avarolli to Kudala on 05.02.2013 and certainly second
motorbike is not seized. It is clearly an improvement made by
the prosecutrix. Her evidence that from Avarolli she was taken
on a two wheeler by accused No.1 and accused No.5 to Kudala
of Maharashtra also does not inspire the confidence in the
mind of the Court and no reliance could be placed on her
evidence. During her cross-examination, when suggested that
she had ample opportunity to attract the public as well as the
Police to the accused persons forcibly taking her, the
prosecutrix has stated that her face was covered with a cloth
CRL.A.NO.100095/2017
by the accused persons and they were threatening her with
dire consequences. It has come in the evidence of PW.10
Vijaya Bapu Kambale, owner of the house where the
prosecutrix was allegedly confined at Kudala that while going
from Maharashtra towards Kudala there are two Forest Check
Post and one Police Check post and all the vehicles coming
from Belagavi towards Maharashtra will be checked at the
border. In order to go to Kudala from Belagavi, it is required
to pass through the highway. This information is elicited
through this witness to show that if at all the prosecutrix was
taken from Avarolli to Kudala on a motorbike against her wish
and she was taken by covering her face with a cloth, certainly
it would have attracted the public attention including that of
the Forest Officials and also Police Officials and they could
have questioned accused Nos.1 and 5 as to why they are
taking the prosecutrix against her will. The very fact that no
such thing has transpired goes to show that the prosecutrix
has cooked up a story to corroborate with the complaint given
by her father and certainly the evidence of the prosecutrix on
this aspect is not reliable and convincing.
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33. Thus, from the above discussion, we hold that the
prosecution has failed to establish that accused Nos.1 and 2
forcibly took the prosecutrix on a motorbike from Bailhongal to
Avarolli and accused No.1 kept her confined in the house of
accused No.4. At the same time, the prosecution has failed to
establish that from Avarolli, accused Nos.1 and 5 forcibly took
the prosecutrix on a two wheeler to Kudala of Maharashtra
and kept her confined in the house of accused No.5.
34. Now coming to the case of the prosecution that
while the prosecutrix was kept in the house of accused No.4 at
Avarolli, accused No.1 committed rape on her during the night
of 02.02.2013 to 04.02.2013. During the course of her
evidence, prosecutrix has deposed to that effect and stated
that by cajoling and coxing her that he will show her Amboli
and Kudala of Maharashtra, accused No.1 raped her against
her will and in order to prevent her from disclosing this fact to
her family members, accused Nos.1 and 4 guarded her. The
relevant words in Kannada are as follows:
"7. ªÀÄÄAzÉ gÁwæ 10 UÀAmÉUÉ ¤£ÀUÉ ªÀĺÀgÁµÀÖgÀzÀ CA¨ÉÆý ºÁUÀÆ
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CRL.A.NO.100095/2017
ªÀÄÄAzÉà 3 ¢£ÀUÀ¼À PÁ® £À£Àß EZÉÑUÉ «gÀÄzÀݪÁV zÉÊ»PÀ ¸ÀA¥ÀPÀð
ªÀiÁrzÀ£ÀÄ. F «ZÁgÀªÀ£ÀÄß AiÀiÁªÀÅzÉà jÃw £À£Àß ªÀÄ£ÉAiÀĪÀjUÉ
w½¹zÀAvÉ 1£Éà DgÉÆævÀ£ÀÄ ºÁUÀÆ DªÀÄ£ÉAiÀÄ ©ÃªÀĪÀé (4£ÉÃ
DgÉÆævÀ¼ÀÄ) JA§ÄªÀªÀgÀÄ £À£ÀUÉ PÁªÀ¯ÁVzÀÝgÀÄ."
35. On this aspect, the prosecutrix is cross-examined
by the defence, more particularly on behalf of accused Nos.1
and 3 and at para 35, she has deposed that while accused
No.1 forcibly had intercourse with her, she tried to escape by
wriggling out and also she tried to shout and also she tried to
push him away and she also tried to come out of the house.
When questioned whether she sustained any injuries in the
process, though at the first instance, the prosecutrix has
replied in the negative, immediately on the next second, she
has replied that she sustained injury to her back. However,
when questioned whether she has taken any treatment while
in the hospital from 12.02.2013 to 14.02.2013, she has
answered in the negative. The evidence of the prosecutrix that
the accused No.1 coxed and cajoled her by tempting her with
the offer of showing her Amboli and Kudala, accused
committed rape on her forcibly are contradictory to each
other.
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36. At this stage, it is relevant to note the medical
evidence regarding the alleged rape committed by accused
No.1 on the prosecutrix. PW.15 Dr.Malakappa Satappa
Mundaginal is the Medical Officer, who has examined the
prosecutrix. He has deposed that on 12.02.2013 at 02:15
p.m., he has examined the prosecutrix who was brought with
the history of kidnap and rape and issued the Medical
Certificate at Ex.P-25. As per this document, the Medical
Officer has not found any external injury on the person of the
prosecutrix. As per Ex.P-25, the hymen of the prosecutrix was
found absent. Except this, all the other genetalia organs of the
prosecutrix were found normal. Even the FSL report indicate
that the presence of the blood was not detected in the clothes
of the prosecutrix as well as seminal stains were also not
found. There is no evidence of recent sexual intercourse.
37. During his cross-examination, though PW.15 has
denied the suggestion that in case of forcible sexual
intercourse, there is chance of causing internal and external
injuries on the genital organs, when referred to the Modi's
Medical Jurisprudence, the witness has admitted that if sexual
intercourse is committed by force, then there will be chance of
CRL.A.NO.100095/2017
injury on the external and internal organs. He has also
admitted that if forcible sexual intercourse is committed on
woman for several days, then there is chance of shock,
dismay and non-specific anxiety. After answering this
question, the witness has volunteered and stated that this
may not be true in all cases. However, he has further
volunteered and stated that in the present case, the
prosecutrix was referred to psychiatrist and as per Psychiatrist
Report, there is nil psychiatry which means that the
prosecutrix had no psychiatric issues when examined. He has
also admitted that for some other reasons also there may be
rupture of hymen. The examination of the oral testimony of
PW.15 coupled with Ex.P25, falsifies the case of the
prosecutrix that for a period of three days continuously,
accused No.1 had forcible intercourse with her and during the
course of the same, she struggled to escape from the clutches
of the accused and resisted resulting in injury to her back.
However, as per Ex.P25, no internal or external injuries were
found on the person of the prosecutrix. Therefore, we hold
that the prosecution has failed to establish that while confining
the prosecutrix at Avarolli, accused No.1 committed forcible
CRL.A.NO.100095/2017
sexual intercourse with her, thereby attracting the provisions
of Section 375 of IPC and Section 4 of POCSO Act.
38. Now coming to the case of the prosecution that
the prosecutrix was rescued by the Police at Kudala and she
was brought back to Bailhongal etc. On this aspect the
evidence of PWs.2, 13 and 14 throws light. During the course
of her evidence, the prosecutrix has deposed that on the
intervening night of 09th - 10th of February 2013 i.e., at
around 12:30 a.m. of 10.02.2013 Police came and they were
two in number, out of them one was in uniform and other
person was in the civil dress and after seeing the Police, she
became relaxed. She has specifically stated that before the
Police she did not reveal what transpired between her and the
accused persons and only after they reach Bailhongal Police
Station, she revealed the fact before the Police. However, in
her statement at Ex.P3, the prosecutrix has stated that on
10.02.2013 when she was brought to the Bailhongal Police
Station, she refused to disclose the facts and said that she will
tell everything before her father and therefore the PSI took
her to the Rehabilitation Centre and admitted there. It is
relevant to note that the prosecutrix has not stated anything
CRL.A.NO.100095/2017
about accused Nos.1, 4 and 5, when the Police visited Kudala.
She has not stated whether they were present and on seeing
the Police they ran away or even before the Police came they
had left the place. It is not the case of the prosecution that
when the Police went to Kudala, any of the accused persons
were present and they were also apprehended. If at all before
the Police came to the spot, the accused persons had left the
place, then it is for the prosecutrix to say when that happened
and whether she had any opportunity to leave the place in the
absence of the accused persons. This creates a doubt as to the
case put forth by the prosecution. During her cross-
examination, the prosecutrix has admitted that while going
from Bailhongal to Belagavi, they are required to pass through
her Village Phularkoppa. When suggested whether she told the
Police that she wanted to meet her parents, the prosecutrix
has replied that she told the PSI about meeting her parents,
but he refused saying that first she should undergo medical
test and only after that she can meet her parents and he also
assured that already her parents have been intimated and
they will be coming. At para 59 of her evidence, the
prosecutrix has stated that from 12.02.2013 to 14.02.2013
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she was admitted to the hospital and during the said period,
Woman Police Constable was staying with her. However, there
is no material placed on record to show that for the purpose of
medical examination, the prosecutrix was admitted to the
hospital from 12.02.2013 to 14.02.2013.
39. Now coming to the case of the prosecution that
after the prosecutrix returned from Kudala, the Rehabilitation
Centre, the complainant met the prosecutrix and after getting
all the details of the ordeal which the prosecutrix has
undergone, he has lodged the complaint at Ex.P-2 on
11.02.2013 at 11 p.m. It is pertinent to note that PWs.13 and
14 are the Police Officials who have conducted the
investigation and filed the Charge Sheet. In their evidence,
they have not at all given the details of the persons who went
to Kudala and brought back the prosecutrix and these two
witnesses have also not stated at what time she was brought
and what are the timings at which she was brought to the
Police Station and from there sent to the Rehabilitation Centre
etc. Therefore, for these details it has become inevitable to
refer to the evidence of the prosecutrix. At para 41 of her
evidence, the prosecutrix has stated that on the intervening
CRL.A.NO.100095/2017
night of 9th and 10th of February 2013, when two Police
personnel came to Kudala, it was about 12:30 a.m. i.e., 30
minutes past the midnight. At para 43 of her evidence, the
prosecutrix has specifically stated that when they left Kudala
on 10.02.2013, it was 05:00 p.m. and when they reached the
Bailhongal Police Station, it was midnight. In other words,
when they came to Bailhongal Police Station, it was midnight
of 11.02.2013 i.e., beginning of 12.02.2013. The prosecutrix
has further deposed that after staying about one hour at
Bailhongal Police Station, she was brought to Rehabilitation
Centre. In this regard, P.W.1, the father of the prosecutrix has
stated that after coming to know that the prosecutrix was
brought back and she was kept in the Rehabilitation Centre,
he alongwith his wife CW.7 Balavva, CW.3 Durgappa Wadder,
CWs.2 and 9 went to the Santwana Kendra, Belagavi and met
the prosecutrix and enquired her about the incident and based
on the said information, he got prepared the complaint and
filed the same as per Ex.P-2 and it is in the hand writing of
CW.10 Erappa Talawar. However, in Ex.P-2, the endorsement
made by the Investigating Officer, who has received the
complaint is to the effect that he has received it at 11.02.2013
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at 11:00 p.m. By that time, the prosecutrix had not yet
returned from Kudala to Bailhongal Police Station let alone
present at the Rehabilitation Centre. It creates doubt as to the
veracity of the prosecution case. As already noted, except the
fact that the complainant met his daughter and the rest of the
facts alleging the involvement of accused Nos.1 to 5 in the
alleged kidnap and rape of the prosecutrix is hearsay and that
part of the complaint averments as well as the evidence of
PW.1 are inadmissible.
40. As already discussed, no material is placed on
record as to who were the Police Officers who went to Kudala
and brought back the prosecutrix to Bailhongal Police Station
and evidence to that effect is silent. PW.13 Dharmakar
Shivagouda Dharmatti has conducted part of the investigation.
He has deposed that on 11.02.2013 at 11:00 p.m.
complainant appeared before him and gave the written
complaint at Ex.P-2 and on the basis of it, he has registered
the case in Crime No.35/2013. He has deposed that on
12.02.2013 he has recorded the statement of the prosecutrix
which refers to Ex.P-3 and thereafter handed over further
investigation to CW.27. He is the one who received the
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missing complaint at Ex.P-1. He has deposed to that effect
and his signature in Ex.P-1 is marked as Ex.P-1(b). During his
cross-examination, this witness i.e., PW.13 has stated that
after receiving the missing complaint, he has made attempts
to search the prosecutrix and during this period, the
complainant was with him. He has specifically stated that on
09.02.2013 when the prosecutrix appeared before him, he
was the Investigating Officer. It is pertinent to note that this
witness does not say that the prosecutrix was produced before
him by the two Police Officials and on the other hand, he
specifically states that the prosecutrix appeared before him.
Relying upon this piece of evidence, learned counsel
representing the accused persons submitted that this supports
the defence taken by the accused that the prosecutrix had
gone to Dharwad without informing her parents and after
coming to know that a missing complaint has been filed, she
on her own came back and appeared before the Investigating
Officer.
41. On the other hand, PW.14 Ramesh Basappa Gokak
who has conducted further investigation has deposed that on
12.02.0213 he took up further investigation from PW.13 and
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on the same day alongwith Woman Police Constable, he went
to the Rehabilitation Centre and examined her and received
the written statement given by her. Even though according to
the prosecution, the prosecutrix was a minor and the
provisions of the POCSO Act were attracted, the Investigating
Officer has not chosen to get her statement recorded before
the jurisdictional magistrate and on the other hand he has
chosen to receive a written statement in the hand writing of
the prosecutrix with her signature as her statement. The
evidence of PW.14 indicate that after accused Nos.1 and 3
were arrested and brought to the Bailhongal PS, the
prosecutrix was brought from the Rehabilitation Centre to the
Bailhongal Police Station and she has identified them. It is
pertinent to note that accused Nos.1 and 3 are related to the
prosecutrix and absolutely there was no dispute with regard to
the identity of these accused persons. Such being the case,
there was no reason as to why she was made to identify these
accused persons and no purpose would serve by such
exercise.
42. It is pertinent to note that at page 3 of his
evidence, PW.14 has specifically stated that on 14.02.2013 he
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visited the Belagavi Government Hospital and enquired the
prosecutrix and since she refused to go to her parents house,
she was once again sent to the Rehabilitation Centre. This
piece of evidence of PW.14 is contrary to the statement of the
prosecutrix that she wanted to meet her parents at the
earliest. This statement of PW.14 also supports the defence of
the accused that the prosecutrix never went with accused
No.1 and on the other hand she was been to Dharwad and
after coming to know that a missing complaint has been filed,
she returned and she was not at all ready to falsely implicate
the accused persons and for that reason only she did not
choose to give her statement implicating the accused persons.
Therefore, her father choose to lodge a complaint at Ex.P-2
making allegations against the accused persons and based on
his hearsay statement, the Police have chosen to falsely
implicate the accused persons. This also supports the case of
the accused that since the prosecutrix was not ready to give
statement as required by her father, the Investigating Officer
did not take risk of getting her statement recorded before the
jurisdictional magistrate as she would not have supported the
allegations which her father wanted to make.
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43. The examination of the oral and documentary
evidence placed on record establish the fact that even though
as on the date of the alleged incident, the prosecutrix was
aged 17 years 7 months i.e., a minor, the prosecution has
failed to prove that she was kidnapped by accused No.1 with
the help of accused No.2 and on the instigation of accused
No.3 and with the help of accused Nos.4 and 5, she was
confined at Avarolli as well as at Kudala and while at Avarolli,
accused No.1 committed rape on the prosecutrix against her
will and thereby committed the offences alleged against them.
In support of the case of the prosecution, the learned counsel
appearing for the prosecutrix i.e., the complainant has relied
upon the decision of the Hon'ble Supreme Court in Criminal
Appeal No.1919/2010 in the matter of Anversinh @
Kiransinh Fatesinh Zala vs. State of Gujarat, wherein on
appreciating the facts, the Hon'ble Supreme Court held that
the offence under Section 375 IPC was not proved and
therefore, the High Court was justified in acquitting the
accused for the offence punishable under Section 376 IPC, but
on facts the allegation of kidnapping was proved and the
conviction for the said offence was upheld. However, in the
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present case, the prosecution has failed to establish both the
allegations of kidnapping as well as rape and illegal
confinement and therefore this decision is not applicable to the
facts and circumstances of the case.
44. Thus, from the above discussion, we hold the Trial
Court has rightly rejected the case of the prosecution and
acquitted the accused of all the charges and we find no
justification to interfere with the impugned judgment and
order and consequently the appeal fails and it is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
Rsh
