The State Of Karnataka vs Praveen S/O Nagappa Gudagudi
2021 Latest Caselaw 2229 Kant

                                                  CRL.A.NO.100283/2018

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          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.100283/2018

BETWEEN:

The State of Karnataka
Police of Hangal Police station
Haveri District, Haveri
Represented by the Special Public Prosecutor
High Court, Dhaward.
                                                         .... Appellant
(By Sri. V. M. Banakar, Addl. SPP)

AND:

Praveen S/o. Nagappa Gudagudi
Aged about 21 years, Occ: Coolie
R/o. Mantagi Village, Tq: Hangal, Dist: Haveri.
                                                       ... Respondent
(By Mahesh Wodeyar, Advocate)

      This Criminal Appeal is filed under Section 378(1) and (3) of
Cr.P.C. seeking to set aside the judgment and order of acquittal
dated 06.01.2018 passed by the Principal District and Sessions
Judge and Special Judge, Haveri, in Special S.C.No.44/2016 and
convict the respondent/accused for the offences p/u/s. 363, 366,
376, 344 of IPC and u/s. 4, 6 and 12 of the POCSO Act, 2012.
                                                 CRL.A.NO.100283/2018

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      This appeal having been heard and reserved for judgment on
31.05.2021, coming on for pronouncement of judgment this day,
J.M. Khazi J., delivered the following:


                             JUDGMENT

The State Government has filed this appeal under Section

378(1) and (3) of the Code of Criminal Procedure, challenging the

judgment and order of acquittal dated 06.01.2018 in Special

S.C.No.44/2016, on the file of the Principal District and Sessions

Judge and Special Judge at Haveri, by which the accused came to

be acquitted for the offences punishable under Sections 363, 366,

376, 344 of the Indian Penal Code, 1860 ('the IPC', for short) and

Sections 4, 6 and 12 of the Protection of Children from Sexual

Offences Act, 2012 ('The POCSO Act', for short).

2. For the sake of convenience, the parties are referred to

their rank before the trial Court.

3. It is alleged that the accused acquainted himself with

the prosecutrix, who was aged 17 years 04 months at the relevant

point of time and he used to speak to her over the cell phone of

her father and they fell in love with each other and when the father

of the prosecutrix came to know about it and advised the CRL.A.NO.100283/2018

prosecutrix, the accused planned to elope with her and on

03.06.2016 at 5.30 pm, he enticed away the prosecutrix on his

motorcycle and took her to Chikkabasur village of Byadgi Taluk and

while staying in the house of PW6 - Kamalavva, accused

committed rape on the prosecutrix and after staying for 5-6 days in

the house of said Kamalavva, accused took the prosecutrix to

Ambadi village of Bevandi Taluk, Maharashtra and wrongfully

confined the prosecutrix in the house of CW18 - Shyama Jadav

and thereby he committed the offences punishable under Sections

363, 366, 376, 344 of IPC and Sections 4, 6 and 12 of POCSO Act.

4. Since the accused pleaded not guilty, a detailed trial

was held, wherein PWs. 1 to 21 are examined and Exs.P1 to P27

and M.Os.1 to 15 are marked on behalf of the prosecution.

5. During his statement under Section 313 Cr.P.C.,

accused denied the incriminating material against him. He has not

chosen to lead any evidence on his behalf.

6. After hearing arguments of both sides, by the

impugned judgment and order, the trial Court was pleased to

acquit the accused of all the charges by holding that the CRL.A.NO.100283/2018

prosecution has failed to prove the guilt of the accused beyond

reasonable doubt.

7. We have heard the learned Addl. State Public

Prosecutor for the State and learned counsel for the accused and

perused the record.

8. During the course of his argument, learned Addl. State

Public Prosecutor submitted that the learned trial Judge has not

appreciated Ex.P22, the school record regarding the age of the

victim in the light of the evidence of PW14. He further submitted

that the trial Court has not appreciated the evidence on record as a

whole and acquitted the accused on the basis of minor

contradictions. Based on minor contradictions, the admissible

evidence cannot be brushed aside. He further submitted that,

since during the pendency of the trial, the prosecutrix died by

committing suicide, her statement under Section 164 Cr.P.C. is

admissible and the evidence of PW15, the Magistrate, who

recorded her statement under Section 164 Cr.P.C., prove the

contents of the same and based on the same, it is a fit case to

convict the accused.

CRL.A.NO.100283/2018

9. On the other hand, learned counsel representing the

accused submitted that, after appreciating the oral as well as

documentary evidence placed on record in a proper perspective,

the trial Court has rightly acquitted the accused and it is not a fit

case to interfere with the conclusion arrived at by the trial Court.

10. It is the definite case of the prosecution that, as on the

date of incident, the prosecutrix was aged 17 years 4 months. To

established this fact, the prosecution has relied upon the evidence

of PW14 - Abdul Aziz Mozar, who is a teacher working in the

Government Urdu School, Hangal and he has deposed regarding

issuance of extract of birth certificate - cum - caste certificate,

based on the records maintained in the school and it is marked as

Ex.P22. As per this document, the date of birth of the prosecutrix

is 01.02.1999. Based on this document, it could be safely held

that, as on the date of incident, the prosecutrix was aged 17 years

04 months. It is pertinent to note that the defence has not

disputed the evidence of this witness. Thereby the prosecution has

established the fact that, as on the date of incident, the prosecutrix

was a minor.

CRL.A.NO.100283/2018

11. It is the definite case of the prosecution that, on

03.06.2016, when the complainant and his family members were

engaged in the reception held in the house of one Mehaboob Ali,

the prosecutrix was alone in the house and at that time, the

accused took her on his motorbike. PW8 - Imamsha Mahaboobsab

Yallur and PW9 - Imamsab Rajesab Doddavad, have seen the

accused taking away the prosecutrix on his motorbike. PW8 has

supported the prosecution case and deposed that he saw the

accused taking away the prosecutrix on his motorbike and he

informed this fact to her father. However, PW9 - Imamsab

Rajesab Doddavad has not supported the prosecution and stated

that, he came to know about the accused taking away the

prosecutrix. In fact the father of the prosecutrix came to know

about the said incident through PW8 - Imamsha Mahaboobsab

Yalluru. After searching for the prosecutrix with the help of his

family members and friends, on the next day he has given the

complaint.

12. According to the prosecution, the accused took the

prosecutrix to the house of CW13 - Kamalavva at Chikkabasur and

stayed in their house for five days. The said Kamalavva Valmiki is

examined as PW6 and her son Fakkiresh Valmiki is examined as CRL.A.NO.100283/2018

PW7. Even though both of them have stated that they know the

accused, they have not supported the prosecution case and denied

that, for a period of 5 days accused kept the prosecutrix in their

house. Even though they are treated as hostile and cross-

examined by the prosecution, nothing worthy is elicited which

would help to improve the case of the prosecution. It is the

definite case of the prosecution that, from Chikkabasur, the

accused took the prosecutrix to Ambadi village of Bevandi Taluk,

Maharashtra and they stayed in the room of CW19 - Kumar, who

was a tenant under CW18 - Shyama Jadhav, and from the said

place the police secured the accused as well as the prosecutrix and

brought them back. However, CW18 and CW19 are not examined

by the prosecution.

13. Initially the statement of prosecutrix is recorded by

Oman, ASI on 21.06.2016. After the said statement disclosed the

fact that she was a minor and the accused had sexual intercourse

with her, the I.O. has got her statement recorded under Section

164 Cr.P.C. by the Magistrate. Since during the pendency of the

trial, the prosecutrix committed suicide, the prosecution has

chosen to examine the Magistrate, who has recorded her

statement, as PW15. During the course of her evidence, the CRL.A.NO.100283/2018

learned Magistrate has deposed that, on 23.06.2016, she has

recorded the statement of the prosecutrix as per Ex.P23. She has

identified the signatures of the proseuctrix at Ex.P23(b) to (f).

During her cross-examination, PW15 has admitted that, during the

course of her statement, the prosecutrix has never alleged that the

accused raped her.

14. Now coming to the statement of the prosecutrix

recorded by the Magistrate at Ex.P23, it reveal that, prior to the

date of incident, i.e., since about three months, the accused used

to come near the house of the prosecutrix and used to speak to her

and she also used to have conversion with him through mobile

phone and during this period, they fell in love with each other and

when the father of the prosecutrix warned her not to have

friendship with the accused, they decided to run way and

accordingly, on the date of incident, the accused took the

prosecutrix on his motorbike and first they went to Chikkabasur

and after staying there for five days, they again went to Ambadi of

Bevandi taluka, Maharashtra state and stayed in a rented room for

ten days before they were apprehended by the police and brought

back.

CRL.A.NO.100283/2018

15. As rightly admitted by PW15, during the course of her

statement under Section 164 Cr.P.C., the prosecutrix has nowhere

stated that, during her stay with the accused person, he committed

rape or had sexual intercourse against her wish. She has only

stated that accused wanted to touch her and feeling that if she do

not permit him to touch her, he may leave her, she permitted him

to touch her.

16. PW10 - Dr. Nagaraj Kuri has examined the accused

and given the report that the accused is capable of performing

sexual intercourse and his report is marked as Ex.P18. The further

opinion as per Ex.P19 is that, there was no proof of he having

sexual intercourse in the last 24 hours of his examination.

17. At this stage, it is relevant to examine the evidence of

PW16 - Dr. Nirmala Hanji, who has examined the prosecutrix.

Ex.P24 is the examination of the prosecutrix. After receipt of the

RFSL report, Davangere, she has given report at Ex.P25 stating

that the report is negative for the presence of spermatozoa and

seminal stains.

18. Admittedly, the oral and documentary evidence placed

on record makes it evident that, on the date of incident, the CRL.A.NO.100283/2018

accused took the prosecutrix on a two wheeler. Consequently, the

case of the prosecution that she was forcibly taken away by the

accused is negatived by the fact that, while driving the two

wheeler, it is not possible for him to forcibly hold the prosecutrix.

On the other hand, the statement of the prosecutrix under Section

164 Cr.P.C. makes it evident that, about three months prior to the

date of incident, they started conversation with each other and

ultimately fell in love and the prosecutrix voluntarily accompanied

him. The conduct of the prosecutrix is contrary to the case put

forth by the prosecution. Moreover, the medical evidence

regarding the prosecutrix being subjected to forcible sexual

intercourse is negative. In fact her statement under Section 164

Cr.P.C. makes it amply clear that, no sexual intercourse took place

between the accused and prosecutrix.

19. Taking into consideration the oral as well as the

documentary evidence placed on record, the trial Court has rightly

come to the conclusion that the prosecution has failed to bring

home the guilt of the accused. We find that there is no perversity

in the conclusion arrived at by the trial Court and it has

appreciated the oral as well as the documentary evidence in a

proper perspective, while coming to such conclusion.

CRL.A.NO.100283/2018

20. In the result, the appeal filed by the State is liable to

be dismissed. Hence we proceed to pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE gab