State Of Karnataka vs Satish S/O. Mallesh Hadagali,
2021 Latest Caselaw 2233 Kant

                                            CRL.A.NO.100105/2017


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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.100105/2017
Between:
State of Karnataka,
Rep. by the Police Inspector,
Gadag Rural Police Station, Gadag,
Through the Addl. State Public Prosecutor
Advocate General Office, High Court of
Karnataka, Dharwad Bench.
                                                    ...Appellant
(By Sri.V.M.Banakar, Addl S.P.P.)

And:
Satish S/o. Mallesh Hadagali,
Age:21 years, R/o. S.M. Krishna Nagar, Gadag.
                                                  ...Respondent
(By Sri.S.G.Kadadakatti, Adv.)

      This criminal appeal is filed under sections 378 (1) and
(3) of Cr.P.C., praying to grant special leave to appeal and to
set aside the judgment and order of acquittal dated
14.12.2016 passed by the Prl. District and Sessions Judge
Gadag in S.C. (POCSO) No.38 of 2014 and to convict the
respondent/accused for the offences punishable under
Sections 363, 376(2)(i) of IPC and Section 4 of the POCSO
Act, 2012.

     This criminal appeal having been heard and reserved for
judgment on 28.05.2021, coming on for pronouncement of
judgment this day, J.M.Khazi J., delivered the following:
                                                 CRL.A.NO.100105/2017


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                             JUDGMENT

Being aggrieved by the judgment and order of acquittal

dated 14.12.2016 passed by the Principal District and

Sessions Judge, Gadag in S.C. (POCSO) 38/2014 by which the

Trial Court was pleased to acquit the accused for the offences

punishable under Sections 363, 376(2)(i) of the Indian Penal

Code ("IPC" for short) and Section 4 of the Protection of

Children from Sexual Offences Act, 2012 ("POCSO Act" for

short), the State has preferred this appeal under Sections

378(1) and (3) of the Code of Criminal Procedure, 1973

("Cr.P.C." for short).

2. For the sake of convenience, the parties are

referred to their rank before the Trial Court.

3. In the charge sheet, it is alleged that accused

used to speak to the prosecutrix, who was aged about 14

years, by frequently visiting the layout where she was residing

and lured her to go to Bengaluru with him with a promise that

he will marry her and they can live happily and on 31.03.2014

at his instance, the prosecutrix left her house and went to

Hubballi in the bus and from there, the accused took her to CRL.A.NO.100105/2017

Bengaluru by travelling in a bus and thereafter he made her to

stay in a shed which was constructed for storing construction

materials and also used as a watchman's shed and from

01.04.2014 to 15.05.2014 he committed rape on the

prosecutrix and thereby committed the above said offences.

4. During the investigation, the Police secured the

presence of the prosecutrix and also the accused and they

were subjected to medical examination. The statement of the

prosecutrix was got recorded by the Investigating Officer

through the Magistrate under Section 164 of Cr.P.C. After

conducting detail investigation, charge sheet is laid against the

accused.

5. Charge is framed against the accused for the

offences punishable under Sections 363, 376(2)(i) of IPC and

under Section 4 of the POCSO Act. The accused has denied

the charges levelled against him.

6. In support of the prosecution case, 17 witnesses

are examined as P.Ws.1 to 17, Exs.P-1 to P-15 are marked.

The accused has not led any oral or documentary evidence.

CRL.A.NO.100105/2017

During the course of his statement under Section 313 of

Cr.P.C. he has denied the incriminating materials against him.

7. After hearing the arguments of both sides, vide

the impugned judgment and order, the Trial Court acquitted

the accused on the ground that the charge levelled against the

accused are not proved beyond reasonable doubt.

8. We have heard the learned Additional State Public

Prosecutor for the State and the learned counsel for the

respondent - accused and perused the records.

9. During the course of his arguments, the learned

Additional State Public Prosecutor has submitted that at the

time of incident, the prosecutrix was aged 14 years and both,

during the course of her statement before the Police as well as

before the Magistrate, she has spoken about the involvement

of the accused in enticing her away and while keeping her in a

shed at Bhattarahalli, K.R.Puram, Bengaluru, she was

subjected to sexual intercourse and these aspects have been

proved by the prosecution beyond reasonable doubt. He

further submitted that inspite of it, the Trial Court has CRL.A.NO.100105/2017

proceeded to acquit the accused and it is a fit case to reverse

the judgment of acquittal.

10. On the other hand, learned counsel representing

the accused submits that after examining the oral and

documentary evidence placed on record, the Trial Court has

arrived at a correct conclusion and no ground is made out to

reverse the judgment of acquittal.

11. According to the prosecution, the accused enticed

away the prosecutrix on 31.03.2014 and on the same evening,

the father of the prosecutrix i.e., the parents of the

prosecutrix came to know about her absence. However, the

complaint came to be filed on 05.05.2014 after lapse of 36

days. In the complaint, the complainant has not given the

reasons for delay in filing the complaint. He has stated that

after coming to know that the prosecutrix has not returned

home, he and his wife felt that she might have gone

somewhere and waited for 2 to 3 days and they also searched

for her in their relatives house and thinking that she may

return, they kept quite. He has also stated that about 2 to 3

days prior to the filing of the complaint, he came to know that CRL.A.NO.100105/2017

the accused has taken the prosecutrix alongwith him and

therefore, he has chosen to file the complaint.

12. With regard to the delay in filing the complaint,

during the course of his evidence, complainant, who has

examined as P.W.2 has stated that after coming to know

about the absence of prosecutrix, he, his wife, C.W.5 -

Mehaboob Tahasildar and C.W.8 - Yasir Mithaivala searched

for her everywhere i.e., in Bus Stand, Railway Station,

Ashraya Colony etc., and on the next day also they searched

for her and fearing for the reputation of the family,

immediately he did not file the complaint.

13. Even during the course of his evidence, this

witness has stated that he came to know about the accused

having enticed away his daughter about one month after the

incident. However, the evidence of the mother of the

prosecutrix i.e., P.W.3 - Rihanabegum revealed that accused

used to visit their colony and used to speak to the prosecutrix

by standing near a Kirana shop and he was freely behaving

with her. Even P.W.4 - Yasir Mithaivala, who is an

acquaintance of the complainant and also knowing the CRL.A.NO.100105/2017

accused has deposed that accused used to freely move with

the prosecutrix and after coming to know that the prosecutrix

is missing from the house, he and C.W.10 - Siraj Ahmed

informed the said fact to the complainant and advised him to

give complaint. The evidence of the wife, the complainant as

well as P.W.4 makes it evident that immediately after the

prosecutrix went missing from the house, the complainant had

all the reason to believe that it is the accused who might have

enticed away his minor daughter and there was absolutely no

reason for him to wait for nearly 36 days to file the complaint.

The reason for delay in complaint is not properly explained by

the prosecution. The accused has taken up a defence that

when the prosecutrix went missing from the house of the

complainant, after due deliberation, the complainant has

chosen to file a false complaint against him and he has

nothing to do with the missing of the prosecutrix. Even after

coming to know that the accused might have enticed his

daughter, there is inordinate delay on the part of the

complainant to file the complaint and there is absolutely no

justification for the inordinate delay in filing the complaint and

it goes to the root of the prosecution case.

CRL.A.NO.100105/2017

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

accused was using cell phone bearing number 7411173283

and the prosecutrix was in the habit of calling him over that

number through a coin booth. In her statement before the

Investigating Officer as per Ex.P-8, as well as in her statement

under Section 164 of Cr.P.C., the prosecutrix has specifically

spoken about this aspect. During the course of her cross-

examination, when the prosecutrix was questioned as to

whether she complained to her parents about the accused

calling her over the phone, the prosecutrix has specifically

stated that it was she who was calling the accused over his

phone. However, the Investigating Officer has not collected

any evidence regarding the accused using the cell phone

bearing number 7411173283 and that the prosecutrix

contacting him over his phone through the coin booth. The

evidence on this aspect would have been helpful to the case of

the prosecution.

15. So far as the allegations that the accused enticed

the prosecutrix to go with him to Bengaluru and staying in a

shed and there accused committing rape over her, i.e., having

sexual intercourse with her, in her statement before the CRL.A.NO.100105/2017

Investigating Officer as per Ex.P-8 as well as in her statement

before the Magistrate as per Ex.P-2, the prosecutrix has

nowhere stated that the accused forced her to leave her

parents house and go with him and there was any force

exerted by him in keeping her in the shed for a period of 44 to

45 days. However, during the course of her evidence before

the Court, she has deposed that while keeping her in the shed,

he was threatening her not to leave the shed and used to have

sexual intercourse against her will every night.

16. Her cross-examination reveal that on 31.03.2014

she left the house and up to Mulgund Naka she went by walk

and from there she boarded Hubballi bus and alighted at

Hubballi Bus Stand and alongwith the accused she travelled

over night to Bengaluru and from Majestic of Bengaluru, they

went to Bhattarahalli, K.R.Puram and were staying there. Her

cross-examination further reveal that during the course of

around 44 to 45 days when she stayed in the said shed, there

were other workers and she was speaking to them, but never

she complained that accused has forcibly kept her in the said

shed etc. The story of accused having forcibly taken her and

keeping her in a shed against her will and that he committed CRL.A.NO.100105/2017

sexual intercourse with her against her will, appears to be a

improvement made before the Court and it appears to be

tutored version. Her oral testimony on this aspect before the

Court is inconsistent with the statement given by her before

the Investigating Officer as well as before the Magistrate

under Section 164 of Cr.P.C.

17. P.W.7 - Ishwar Sadar is the Police Constable, who

alongwith P.C. 918 was entrusted with the duty of searching

the accused as well as the prosecutrix. His evidence reveals

that on 16.05.2014 at around 09:00 a.m., they were present

at K.R.Puram market near Ganesha Temple of Bengaluru and

they saw the accused as well as the prosecutrix coming

towards the temple and after making sure about the identity,

they secured them and took them back to the Police Station

and produced them before the Investigating Officer. Evidence

of this witness reveals that the prosecutrix was freely moving

with the accused and she never complained to the Police that

she was forcibly taken away and kept by the accused

alongwith him. In fact, this witness alongwith P.C. 918 has

found that the prosecutrix was moving with the accused on CRL.A.NO.100105/2017

her own volition and there appeared to be no threat or force

exerted by the accused against her.

18. Now coming to the evidence of the prosecution to

the effect that at Bhattarahalli, K.R.Puram of Bengaluru, the

accused had kept the prosecutrix in a shed for nearly 44 to 45

days. It is pertinent to note that the Investigating Officer has

not collected any evidence as to whom the said shed belonged

to or in respect of whose construction the shed was being

used and neither the statement of the owner of the house or

atleast the contractor who had engaged the services of the

accused and who allowed or permitted the accused to stay in

the said shed is recorded by the Investigating Officer.

Unfortunately by the time the Investigating Officer went to

conduct the mahazar, the said shed was demolished, as

evident from the mahazar at Ex.P-11 and the photograph at

Ex.P-3. The accused has taken up a defence that he was never

working at Bengaluru and that he was working in Gadag and

therefore there is no truth in the case of the prosecution that

he took the prosecutrix to Bengaluru and stayed there in a

shed for a period of 44 to 45 days. In the light of the specific

defence taken by the accused, in the absence of the evidence CRL.A.NO.100105/2017

of independent witness regarding the stay of the accused and

prosecutrix in a shed for nearly 44 to 45 days, the case of the

prosecution suffers. The evidence of the contractor or at least

the owner of the house which was under construction would

have been helpful. In the absence of the said evidence, the

Court is forced to hold that the prosecution has failed to prove

the said fact.

19. Now coming to the evidence regarding the age of

the prosecutrix. To prove the age of the prosecutrix, the

prosecution has relied upon the progress card of the

prosecutrix at Ex.P-5. In the progress card, her date of birth is

given as 30.03.2001. The prosecutrix as well as her parents

have deposed that about two years prior to the date of the

incident, the prosecutrix attended 7th standard and after that

she did not continue her studies which goes to make her age

as 14 years as on the date of the incident. In the medical

certificate before the Medical Officer, she has given her age as

14 years. The Medical Officer has referred to the prosecutrix

to the Dental Surgeon and based upon his opinion, she has

given her opinion as per Ex.P-12, that at the time of the

incident the prosecutrix was aged about 14 years. The defence CRL.A.NO.100105/2017

has not disputed the age of the prosecutrix. The oral and

documentary evidence placed on record establish the fact that

as on the date of the incident, the prosecutrix was aged 14

years.

20. Now coming to the evidence regarding the

allegation of accused having sexual intercourse with the

prosecutrix, Ex.P-1 is the medical examination of the

prosecutrix. As per this document, P.W.15 - Dr.Sharanamma

has examined the prosecutrix. She has given evidence that on

examination, she found the hymen ruptured and torn but

other body parts like vagina were healthy. She has also

spoken about her opinion given regarding the age of the

prosecutrix. She is of the opinion that the sexual intercourse

might have occurred. During her cross-examination, she has

admitted that for athletes and women doing hard labour,

hymen gets ruptured by itself and she is not in a position to

say when the hymen was ruptured so far as the prosecutrix is

concerned. However, her evidence and the opinion is not

certain with regard to the prosecutrix having sexual

intercourse and the same was against her will.

CRL.A.NO.100105/2017

21. As rightly held by the Trial Court from the contents

of Ex.P-1, the definite opinion of the Doctor cannot be made

out, as it only states that the sexual intercourse might have

occurred. The Medical Officer has not found any external

injuries or any injuries to the internal sex organs. Therefore,

the medical evidence placed on record is also not sufficient to

connect the accused with the alleged crime.

22. Taking into consideration all these aspects and

after appreciating the evidence placed on record in a proper

perspective, the Trial Court has come to a right conclusion

that the prosecution has failed to bring home the guilt of the

accused beyond reasonable doubt and we find no perversity in

the conclusions arrived at by the Trial Court and it is not a fit

case to interfere with the judgment and order of acquittal.

Therefore, the appeal filed by the State fails and accordingly it

is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE Rsh