The State Of Karnataka vs Santhosh S/O Basappa Talwar @ ...
2021 Latest Caselaw 2227 Kant

                                               CRL.A.NO.100061/2018


                                    1


            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 14TH DAY OF JUNE, 2021

                            PRESENT

           THE HON'BLE MR. JUSTICE R.DEVDAS

                               AND

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

            CRIMINAL APPEAL NO.100061/2018

Between:
The State of Karnataka,
By Hangal P.S. Rep. by the Addl. State
Public Prosecutor, High Court, Dharwad.
                                                         ...Appellant
(By Sri.V.M.Banakar, Addl.S.P.P.)

And:
1.    Santhosh S/o Basappa Talawar @ Gotagodi,
      Age:23 years, Occ. Coolie,
      R/o. Yelavatti, Hangal Taluk, Haveri District.
                                                   ...Respondent No.1
2.    Laxmavva Hanamanthappa Kamati,
      Age: 55 years, Occ.House wife, R/o. Yalavatti Village,
      Tq.Hanagal, District Haveri.
                                     ...Complainant/Respondent No.2
(By Sri.M.B.Gundawade, Adv. for R1, R2 served)

      This criminal appeal is filed u/s 378(1)(b) and (3) of Cr.P.C.,
seeking to grant leave to appeal and to set aside judgment & order
of acquittal dt.21.06.2017 passed by the Prl. Dist. & Sessions Judge
& Special Judge at Haveri in Spl. SC No.18/2015 and to convict the
respondent/accused for offences punishable u/s 366, 376, 343 IPC
and u/s 4 & 6 of POCSO Act 2012.

     This criminal appeal having been heard and reserved for
judgment on 03.06.2021, coming on for pronouncement of
judgment this day, J.M.Khazi J., delivered the following:
                                              CRL.A.NO.100061/2018


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                           JUDGMENT

The judgment and order of acquittal dated 21.06.2017

passed by the Principal District and Sessions Judge and

Special Judge at Haveri in Special S.C. No.18/2015 is called in

question in this appeal by the State.

2. By the impugned judgment and order, the Trial

Court has acquitted the respondent No.1 - accused, who was

charged with the offences punishable under Sections 366,

367, 343 of the Indian Penal Code, 1860 ("IPC" for short) and

Sections 4 and 6 of the Protection of Children from Sexual

Offences Act, 2012 ("POCSO Act" for short).

3. For the sake of convenience, the parties are

referred to their rank before the Trial Court.

4. The allegations made against the accused are that

at the relevant point of time, the prosecutrix was aged 16

years and she was studying in I PUC in Bammanahalli College

and everyday she used to go to college from Yelavatti Village

in bus. It is further case of the prosecution that on 24.02.2015

at 12:00 noon, while the prosecutrix was at Bammanahalli bus

stop, accused promising that he would provide money and all CRL.A.NO.100061/2018

the things which she want, enticed her away and initially took

her to Konanakeri and from there to Hubballi and kept her in

wrongful confinement in a shed which was situated by the side

of a temple from 24.02.2015 to 03.03.2015. While in the said

shed, on the night of 02.03.2015, accused committed forcible

sexual intercourse with the prosecutrix and thereby he has

committed the offences punishable under Sections 366, 343,

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

5. In order to prove the charges levelled against the

accused, the prosecution has relied upon the evidence of

P.Ws.1 to 23, Exs.P-1 to P-27 and M.Os.1 to 14.

6. During the course of his statement under Section

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

material coming in the evidence. He has not chosen to lead

any oral or documentary evidence on his behalf.

7. Vide the impugned judgment and order, the Trial

Court has acquitted the accused of all the charges by holding

that the prosecution has failed to prove the allegation against

the accused beyond reasonable doubt.

CRL.A.NO.100061/2018

8. We have heard the learned Additional State Public

Prosecutor for the State and the learned counsel for the

accused and perused the records.

9. During the course of the arguments, the learned

Additional State Public Prosecutor has submitted that the

judgment and order of acquittal passed by the learned Trial

Court is contrary to law, facts of the case and evidence and as

such, not sustainable in law. He further submitted that the

Trial Court without properly appreciating the oral and

documentary testimony placed by the prosecution has

accepted the defence theory and wrongfully come to the

conclusion that the charges are not proved. He further

submitted that the prosecution has proved that as on the date

of the incident, the prosecutrix was 16 years old and in the

light of the medical evidence as well as the oral testimony of

the prosecutrix, the charges levelled against the accused are

proved and as such, it is a fit case for conviction.

10. On the other hand, learned counsel representing

the accused submitted that since the oral and documentary

evidence placed on record by the prosecution is not CRL.A.NO.100061/2018

trustworthy and reliable and as the prosecution has failed to

prove the allegations against the accused beyond reasonable

doubt, the Trial Court has rightly acquitted the accused and

prays to dismiss the appeal.

11. At the outset, it is necessary to examine whether

the prosecution has proved that as on the date of the incident,

the prosecutrix was aged 16 years. To prove this fact, the

prosecution has relied upon the evidence of P.W.17 -

Gadigeppa Chandragiri, Head Master of the Higher Primary

School, Yelavatti. Through him, the extract of birth cum caste

certificate issued by the Primary School, Yelavatti is produced

and marked as Ex.P-13. According to this document, the date

of birth of the prosecutrix is 24.05.1998. The defence has

disputed this document and cross-examined the witness

wherein he has admitted that he has not produced the original

register based on which Ex.P-13 is given. During the cross-

examination, P.W.17 has stated that he has not seen the

prosecutrix and he did not know her personally. He has denied

the suggestion that Ex.P-13 does not pertain to the

prosecutrix.

CRL.A.NO.100061/2018

12. In the absence of the original register, wherein the

entries are with regard to the date of the birth of the

prosecutrix, the extract of it at Ex.P-13, is not sufficient to

prove that the date of birth of the prosecutrix as 24.05.1998

and as such, she was aged 16 years as on the date of the

incident.

13. At this stage, since the prosecution has failed to

prove the date of birth of the prosecutrix based on Ex.P-13, it

is necessary to refer to the medical evidence and see whether

the age of the prosecutrix determined based on the dental

examination is helpful to the prosecution. Ex.P-26 is the

medical examination of the prosecutrix, immediately after she

was secured and brought back by the Police. The lady Medical

Officer, who has examined the prosecutrix has referred her to

Dentist and as per the report furnished by him, he has

estimated the age of the prosecutrix as between 18 to 20

years. Consequently, this document is also not helpful to the

prosecution and the benefit of this has to go the accused.

14. Now coming to the evidence regarding the accused

enticing away or forcibly taking the prosecutrix and wrongfully CRL.A.NO.100061/2018

confining her and also committing the offence of forcible

sexual intercourse. Immediately after the prosecutrix was

brought back, as per the directions of the Investigating

Officer, P.W.21, ASI - Smt.Renuka Pawar has recorded her

statement and she has deposed to that effect. Through her

cross-examination, some of the omissions are suggested and

referred to the witness. The statement of the prosecutrix

recorded by this witness is not marked. Atleast for the

purpose of identification, it should have been marked.

15. After recording the statement of the prosecutrix

and realizing that the provision of the POCSO Act are

attracted, the Investigating Officer has got her statement

recorded through the Judicial Magistrate as per Ex.P-12.

During the course of her statement before the learned

Magistrate, the prosecutrix has stated that she came to be

acquainted with the accused since three years and they used

to speak over the phone and during this they fell in love and

after her mother came to know about it, she reprimanded the

prosecutrix that she is still a minor and she should not indulge

in all these things and when she brought this to the notice of CRL.A.NO.100061/2018

the accused, he advised that they should run away or else her

family members may force her to marry somebody else.

16. In her statement under Section 164 of Cr.P.C., the

prosecutrix has also stated that on the date of the incident

that on 24.02.2015, though she was supposed to write the

exam for political science, she did not feel like attending exam

and therefore she was sitting in the Bus Stand and at around

12:00 noon, the accused came there and promising that he

will get everything she wants, took her to Konanakeri in a bus

and from there to Hubballi and kept her in a shed in Unakal

situated by the side of the temple and he had confined her in

the said shed and during the day time, he used to go out to do

the masonry work. She also stated that for a period of one

week, they did not have any physical relationship, but the

accused used to insist upon having sexual intercourse so that

if she become pregnant, then their parents would

automatically perform their marriage and ultimately fearing

that he may leave her, she allowed to have physical

relationship.

CRL.A.NO.100061/2018

17. Now at this stage, it is relevant to refer to the oral

testimony of the prosecutrix recorded before the Court. At

para 6 of her examination-in-chief, the prosecutrix has stated

that on the date of the incident i.e., on 24.02.2015 though she

left for college, as she was suffering from stomach ache, she

sat in the Bus Stand and accused, who came there started

pestering her to accompany him saying that he will marry and

will take good care of her and even though she refused

persistently, he took her to Konanakeri and kept her in a

house for three days and from there he took her to Unakal

and kept her in a shed and did not allow her to go out.

18. Before the Court, for the first time the prosecutrix

has stated that even though she refused and objected,

accused forcibly had sexual intercourse with her as a result of

which blood came out of her vagina and during the said night

2 - 3 times he had sexual intercourse with her. She has

further stated that on the next day Police came and brought

them back.

19. At para 13, the prosecutrix has deposed regarding

giving statement under Section 164 of Cr.P.C. and claimed CRL.A.NO.100061/2018

that she has given the said statement in terms of her

examination-in-chief.

20. During her cross-examination, even though

prosecutrix has denied that she and accused were in love and

he used to call her over phone, at para 26 indirectly she has

admitted the said fact by saying that since the accused was

frequently calling her over phone, her mother was having a

doubt about she and accused loving each other. Even though

during the course of her evidence, prosecutrix has time and

again stated that at every stage, accused forced her to

accompany him and stay with him in a shed at Unakal for a

period of one week, examination of her evidence reveal that at

every stage she had an opportunity to escape or atleast raise

a hue and cry and attract public attention. Admittedly she has

not done so. Even according to her while keeping her in a

shed, accused used to go for masonry work. During this period

also she had an opportunity to escape or atleast complain to

the persons who were nearby. The conduct of the prosecutrix

makes it evident that there was never any pressure exerted

by the accused either to entice her away or confine her. Her

evidence is inconsistence with the case putforth by the CRL.A.NO.100061/2018

prosecution. Having regard to the fact that the prosecution

has failed to prove that as on the date of the incident she was

still a minor coupled with the conduct of the prosecutrix, it can

be safely held that the prosecutrix has voluntarily

accompanied the accused.

21. The medical examination of the prosecutrix is at

Ex.P-26 which states that her hymen was torn / ruptured. The

Medical Officer has given Opinion No.1 that the local genital

examination evidence signs of recent sexual intercourse.

During her cross-examination, the Medical Officer has

admitted that as per Sl. No.2 of her opinion, she has opined

that the individual is not used to an act like that of sexual

intercourse. She has also admitted that apart from sexual

intercourse for other reasons also there may be signs as

stated in her Opinion No.1. The examination of the medical

evidence of the prosecutrix is inconsistent with the case

putforth by the prosecution.

22. Thus inspite of leading elaborate evidence, the

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

incident, the prosecutrix was a minor and that the accused CRL.A.NO.100061/2018

forcibly took her and confined in a shed and committed rape.

Consequently, the Trial Court has come to a correct conclusion

that the prosecution has failed to prove the allegations against

the accused beyond reasonable doubt. We find no perversity

in the findings of the Trial Court calling for interference by this

Court and consequently, the appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE Rsh