The State Of Karnataka vs Siddappa @ Siddu Sangappa ...
2022 Latest Caselaw 6071 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

          DATED THIS THE 5TH DAY OF APRIL 2022

                         PRESENT

      THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                            AND

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                   CRL.A. NO.100284/2018
BETWEEN

THE STATE OF KARNATAKA
POLICE OF BANKAPUR POLICE STATION,
HAVERI DISTRICT, HAVERI,
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT, DHARWAD.
                                              .....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)

AND

SIDDAPPA @ SIDDU SANGAPPA BHADRAPURA,
AGED ABOUT 27 YEARS, OCC. COOLIE,
R.O IBRAHIMPURA, TQ. SHIGGAON,
DIST. HAVERI.
                                            .....RESPONDENT
(BY SRI NITIN R BOLABANDI, ADV.)

      THIS CRIMINAL APPEAL IS FILED U/SECTION 378 (1) & (3)
OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 19.01.2018 PASSED
BY THE PRL. DIST. & SESSIONS & SPECIAL JUDGE, HAVERI IN
SPL.S.C.NO.31/2015, FOR THE OFFENCES P/U/S 363, 366, 376 OF
IPC AND U/S 4 & 12 OF POCSO ACT AND TO SET ASIDE THE
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JUDGMENT AND ORDER OF ACQUITTAL DATED 19.01.2018 PASSED
BY THE PASSED BY THE PRL. DIST. & SESSIONS & SPECIAL JUDGE,
HAVERI IN SPL.S.C.NO.31/2015, FOR THE OFFENCES P/U/S 363,
366, 376 OF IPC AND U/S 4 & 12 OF POCSO ACT AND CONVICT
THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 363, 366,
376 OF IPC AND U/S 4 & 12 OF POCSO ACT.

     THIS   APPEAL  HAVING    BEEN    HEARD   AND
RESERVED   FOR JUDGMENT ON 16.03.2022, THIS DAY,
RAJENDRA BADAMIKAR, J. PRONOUNCED THE FOLLOWING:

                          JUDGMENT

This appeal is filed by the State through Bankapur Police

in Haveri District challenging the judgment of acquittal dated

19.01.2018 passed by the Principal District and Sessions

Judge and Special Judge, Haveri in Spl. S.C.No.31/2015

whereby the leaned Sessions Judge has acquitted the accused

for the offence punishable under Sections 363, 366, 376 of

Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for

short) and under Section 4 and 12 of the Protection of

Children from Sexual Offices Act, 2012 (hereinafter referred

to as 'POCSO Act', for short).

2. For the sake of convenience, the parties herein

are referred to with their original ranks occupied by them

before the trial Court.

3. Brief factual matrix leading to the case is as

under:

That the complainant's daughter victim aged about 16

years had gone to her grandparents' house situated in

Ibrahimpur at Shiggaon Taluk. During her stay there, she

had developed friendship with the accused who was residing

there itself and they started to love each other and he gave

her false assurance of marriage. It is the further case of the

prosecution that on 23.07.2015 at 12.00 p.m., when the

victim had gone to Bankapur Darga along with her aunt,

accused called her and induced her to come near bus stand

and when she went there, he kidnapped her from the lawful

guardianship and took her to Haveri, then to Davanagere by

bus and then by a train to Bengaluru. Further, it is alleged

that they went to Karmade in Mettupalyan taluk, Koimbatore

District, Tamilnadu State and stayed there in a rented house.

It is the further case of the prosecution that on 25.07.2015,

accused committed rape on the victim having full knowledge

that she is a minor. The father of the victim has lodged a

complaint and on the basis of the same, the police have

apprehended the accused and victim in Karmade village in

Tamil Nadu State and brought to Bankapur Police Station.

Thereafter, the victim as well as accused subjected to medical

examination and statement of the victim under Section 164 of

Code of Criminal Procedure , 1973 (hereinafter referred to as

'Cr.P.C.', for short) was recorded. The accused was remanded

to judicial custody. The Investigating Officer has investigated

the crime and collected the materials regarding age, sexual

assault on the victim and then found that there are sufficient

materials as against the accused and as such, he has

submitted the charge sheet against the accused.

4. After the submission of the charge sheet,

cognizance was taken. The accused was represented by a

counsel and the prosecution papers were furnished to the

accused. After hearing learned Public Prosecutor and defence

counsel, the charges under sections 363, 366 and 376 of IPC

read with Sections 4 and 12 of POCSO Act were framed

against the accused and the same is read over and explained

to the accused. The accused pleaded not guilty and claimed

to be tried.

5. To prove the guilt of the accused, the prosecution

has examined in all 28 witnesses and also placed reliance on

26 documents and got marked 8 M.Os. After conclusion of

the evidence of the prosecution, the statement of accused

under Section 313 of Cr.P.C. is recorded to enable him to

explain the incriminating evidence appearing against him in

the case of the prosecution. The case of accused is of total

denial. However, he did not choose to lead any oral and

documentary evidence in support of his defence.

6. After having heard the arguments in detail,

learned Sessions Judge/Special Judge found that the

prosecution has failed to prove the guilt of the accused

beyond all reasonable doubt and as such, acquitted the

accused for the offences charged against him. Being

aggrieved by the judgment of acquittal, the State has filed

this appeal.

7. Learned Additional State Public Prosecutor has

contended that the victim was kidnapped on 23.07.2015 and

taken to Tamil Nadu by the accused wherein sexual assault

was committed on the minor. He further contended that the

evidence of PW-23 and the school certificate at Ex.P-25

disclose that the victim was minor and admittedly, the victim

was found in the custody of the accused. As such, he would

contend that the Trial Court has ignored the evidence in this

regard. He would further contend that the evidence of PW-22

establishes that the victim and accused were residing in Tamil

Nadu and the victim has also supported the case of the

prosecution and no reasons are forthcoming to ignore the

evidence of victim. He would contend that the victim has

specifically asserted the sexual assault committed on her by

the accused and there is no reason for ignoring the said

evidence. He would also contend that merely because the

other witnesses are family members, their evidence cannot be

ignored. There is material evidence in the form of medical

evidence and independent evidence including the evidence of

victim to prove the guilt of the accused. Hence, he would

contend that the Trial Court on surmises has come to a wrong

conclusion by ignoring the fact that there was sexual assault

on the victim who was a minor and Trial Court ought to have

been more sensitive in such matters. Hence, he would

contend that the judgment of acquittal has resulted in

miscarriage of justice and as such, he would seek for setting

aside the impugned judgment of acquittal and prayed for

convicting the accused by allowing the appeal.

8. Per contra, learned counsel appearing for the

respondent/accused would support the impugned judgment of

acquittal and contended that the material evidence did not

support the case of the prosecution and except Ex.P-25,

school certificate, there is no material to show the age of the

victim. He would also contend that the evidence of the

complainant itself discloses that he has given the date of birth

while admitting the victim to the school but the evidence of

his wife discloses that it was entered by the grandfather of the

victim and they are inconsistent statements. He would also

contend that the radiological report was not obtained to

ascertain the exact date and 164 statement of the victim is

completely inconsistent and contrary to the evidence given

before the Court. He would also contend that there is lot of

delay in recording 164 statement, which is not properly

explained and considering these lacunas, he would contend

that the Trial Court is justified in acquitting the accused.

Hence, he would pray for dismissal of appeal by confirming

the judgment of acquittal.

9. We have heard both the counsels at length and

we have also given our anxious consideration to the grounds

urged by both the parties. We have also perused the records

placed before us.

10. Now the following points would arise for our

consideration:

1) Whether the prosecution proves beyond all reasonable doubt that accused/respondent herein has committed offences punishable under Sections 363, 366 and 376 of IPC and Sections 4 and 12 of POCSO Act as alleged by the prosecution?

2) Whether the judgment of acquittal passed by the Trial Court is perverse, erroneous and arbitrary so as to call for any interference by this Court?

11. It is the contention of the prosecution that the

accused in the guise of loving the victim, who was aged 16

years, kidnapped her by taking her to Karmade in Tamil Nadu

State and he stayed there for 3 to 4 days and committed rape

on her. On the contrary, the accused has denied these

allegations. However, he admits that he was in love with the

victim and disputed that the victim is a minor.

12. PW-1 Gousmodin Sunkad is the father of the

victim while PW-15 Halimabi Sunkad is the mother of the

victim. PW-2 and PW-3 are spot mahazar witnesses while

PW-4 and PW-5 are recovery witnesses in respect of M.Os.1

to 8. PW-7 Fairozabanu is a material witness. However, she

has turned hostile. PW-8 and PW-9 are mahazar witnesses of

spot in Karmade in Tamilnadu State while PW-11 and PW-12

are grandparents of victim and parents of PW-15. PW-11 has

turned hostile. PW-16 Dr. Padmavathi Pattar is the medical

officer who examined the victim by issuing report at ExP.16.

PW-17 Dr.G.Y. Gururaj is also a Medical Officer who examined

the accused and issued report as per Ex.P-19. PW-22

Manikantan is a resident of Karmade and according to the

prosecution, he was neighbour of accused and victim in

Karmade village. PW-10 is the material witness i.e., the

victim.

13. PWs-2, 4, 5, 6, 7, 11 and 13 have turned hostile.

14. PW-1 Gousmodin is the father of the victim and

PW-12 is the wife of PW-11 and grandmother of the victim.

PW-15 is wife of the complainant and mother of the victim.

The evidence of these witnesses discloses that they are family

members but their evidence simply discloses that on

23.07.2015 when the victim had gone to Bankapur Darga

along with PW-7 Fairoza, she went away saying that she will

change her clothes and come back but thereafter she did not

return. When the matter was brought to the notice of the

complainant, a missing complaint came to be lodged by

setting the law in motion. Admittedly, none of these

witnesses are eyewitnesses to the incident and relevant

witness Fairoza has turned hostile to the case of the

prosecution.

15. According to the prosecution, the incident has

occurred on 23.07.2015 and the victim was traced on

31.07.2015 and she was brought back to Bankapur police

station. It is also evident from the records that from

31.07.2015 to 10.08.2015 victim was in the custody of Child

Welfare Committee of Haveri. In this period, her parents

used to meet her and accused was in judicial custody from

31.07.2015 till the judgment is being pronounced. Hence, it

is evident that question of accused influencing the victim does

not arise at all.

16. The victim was examined as PW-10 and in her

evidence, she has deposed that she had come to Ibrahimpur

to the house of her maternal grandparents and in front of the

said house, the house of accused is situated and accused used

to talk to her. She further deposed that accused used to

disclose his love towards her assuring her of marriage and she

also used to love him. In her further examination-in-chief,

she claims that she has not seen her date of birth certificate

and her evidence discloses that she was regularly in

conversation on phone with accused. According to the

prosecution, when she had been to Darga of Bankapur,

accused called her on mobile and secured her and thereafter

kidnapped her by enticing her. But in her examination-in-

chief, she specifically deposed that she herself has called

accused on phone and when he asked her to come to bus

stand, she went to bus stand by giving lame excuse to PW-7.

Though she claimed that initially she has refused to come with

him, he threatened her of reporting the same to her parents.

Therefore, she accompanied him. Her evidence discloses that

all along she has not raised any hue and cry and she has

voluntarily accompanied him. She has also deposed that

accused has committed sexual assault on her. However, in

the cross-examination she asserts that she was in love with

accused. She admitted that she has not raised any objection

for sexual relationship nor she raised any hue and cry while

traveling with accused. This witness though supported the

case of the prosecution, it is evident that she has not

disclosed the true facts and concealing certain material

objects. In her evidence she claimed that the accused asked

her to come to bus stand and she went there and accused

threatened her to join her. But her 164 statement marked at

Ex.P-11 discloses that she herself contacted the accused and

secured him and then from Bankapur she went to Haveri

along with accused. Hence, her 164 statement discloses that

she has taken lead all along. She has also specifically stated

that accused never forced or enticed her and she has

voluntarily accompanied him and after having married him,

she had physical relationship with him. But during the course

of the evidence, she has given a goby to this evidence and no

explanation is forthcoming as to why she has given an

inconsistent statement before the learned Magistrate which

was recorded under Section 164(5) of Cr.P.C.

17. Apart from that, her further cross-examination

discloses that when she was housed in the Protection Home in

Haveri wherein she stayed for 4½ months, she along with

one, another victim Asmabanu has escaped from the

Protection Home. Later on they went to Ranebennur and they

were again produced before the same Court. This conduct of

the victim clearly discloses that victim is extra active in all

these matters and she herself has persuaded the accused to

accompany her. Though she admitted that she has not seen

her date of birth certificate, she claims her age as 16 to 17

years. On the contrary, PW-1 in his cross-examination has

deposed that he has got admitted the victim to the school but

his specific statement is that as per the information provided

by him, the teacher has made entries. He also admitted that

Tahasildar has not given date of birth certificate of victim but

the same is available in Bankapur Municipality. He claims that

he has provided the said document to the police but the

records and the evidence of Investigating Officer discloses

that no such certificate was secured by the Investigating

Officer.

18. On the contrary, PW-15, who is the wife of

complainant and mother of victim pleaded ignorance to the

suggestion that the date of birth of the victim is 04.07.1997.

The complainant claims that he has got admitted the victim to

the school and given information regarding her date of birth.

On the contrary, PW-15 in her cross-examination claims that

her father-in-law has admitted the victim to the school.

These stands of PW-1 and PW-15 are inconsistent and

contrary to each other. The prosecution is relying on the

evidence of PW-23 and Ex.P-25 to prove the age of the victim

as 20.05.1999. His evidence discloses that the victim had

initially studied in Primary School at Panigatti and the

documents pertaining to Panigatti School are not produced.

He has also admitted that at the time of admission of the

students, the date of birth will be entered in the school

records based on the birth certificate. But no such evidence is

forthcoming that the date of birth is entered on the basis of

any birth certificate. The prosecution is simply relying on

Ex.P-25.

19. The evidence of PW-1 and PW-15 is inconsistent

as to who has admitted the victim to the school. Further, PW-

1 specifically asserts that the date of birth of the victim is

entered in Bankapur Municipality records. But the

investigating agency has not made any attempts to secure the

birth certificate in this regard. That would have been the best

piece of document but that was not done. Hence, the date of

birth of the victim itself is doubtful and heavy burden is on the

prosecution to establish that the victim was minor as on the

date of alleged incident and her date of birth is 20.05.1999.

20. PW-16, the Medical Officer has examined the

victim girl and issued certificate as per Exs.P-17 and P-18.

She has deposed that victim was healthy and development

was normal and there were no injuries on her body.

However, her evidence clearly discloses that the hymen was

not intact and she opines that she did suffer sexual assault.

But there is no evidence regarding recent sexual assault. In

her cross-examination, she admits that hymen may rupture

for various reasons but she has not disclosed any other

reason in this regard. Interestingly, she has not subjected

the victim to radiological or dental examination for

ascertaining the exact age of the victim. Even the

Investigating Officer has also not made any attempt to

subject the victim to specialized test to ascertain her exact

age. Hence, when the age of the victim itself is under

dispute, the initial burden is on the prosecution to prove the

same.

21. The prosecution has relied on evidence of PW-22

who claims that he was residing in Karmade in the house of

one Pongiyamma on rent and accused along with one lady

stayed for 3-4 days in the adjoining room. However, his

evidence discloses that he did not identify the victim. Further,

he claims that accused was staying with one lady and he was

neighbour to him. But the prosecution ought to have

examined the landlady Pongiyamma, who would have been

the best witness in this regard. Hence, the evidence of PW-22

does not assist prosecution in any way.

22. PW-26 the Investigating Officer admitted that he

did not obtain any property extract of house wherein accused

was alleged to have been stayed with victim in Karmade. This

is also a material lapse on the part of the investigating

agency.

23. Learned counsel for respondent would specifically

contend that the prosecution has not made any attempt to

ascertain the exact age of the victim and the evidence

discloses that it was a consensual act and all along victim has

taken a lead in securing the accused. In fact, the accused

himself was victimized because of the acts of the victim. In

this context, learned counsel for respondent placed reliance

on a decision of the Hon'ble Apex Court in the case of

Alamelu and another Vs. State represented by

Inspector of Police reported in (2011) 2 SCC 385 wherein

the Hon'ble Apex Court had an occasion to consider the school

certificate and radiological report and it is observed in para 39

and 40 which reads as under:

39. "We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5.

40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15- 6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the

alleged incident, i.e., 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."

24. In view of the observations of the Hon'ble Apex

Court, it is evident that though Ex.P-25 is admissible in

evidence under Section 35 of the Evidence Act, the

admissibility of the document would not have much

evidentiary value to prove the age of the girl in the absence of

material on the basis of which, age is recorded. In the instant

case, PW-1 father claims that he has given the date of birth

while admitting the victim to the school but PW-15 claims that

victim got admitted by her father-in-law i.e., father of the

complainant. These stands are inconsistent. Apart from that,

PW-1 himself claims that the date of birth of the victim was

entered in Bankapur Municipality and he has handed over the

relevant documents to the Investigating Officer but the said

document was not placed before the Court. Further, the

Investigating Officer has not made any efforts to subject the

victim to radiological test. Under these circumstances, Ex.P-

25 cannot be given much importance as it does not have

much evidentiary value as per Section 35 of Evidence Act. It

was the duty of the Investigating Officer to collect the

material evidence but that was not done by him and evidence

was inconsistent in this regard. Further, in the case of Birad

Mal Singhvi Vs. Anand Purohit reported in 1988 Supp

SCC 604, the Hon'ble Apex Court in para 14 has observed

that the date of birth mentioned in the school register has no

evidentiary value unless the person who made the entry or

who gave the date of birth is examined. In the instant case,

PW-23 has not recorded the date of birth and the evidence of

PW-1 is consistent and contrary in this regard. As such, there

is no material evidence placed by the prosecution to prove

that victim was a minor as on the date of alleged incident.

25. Learned counsel for respondent has further invited

the attention on the observation of the Hon'ble Apex Court in

the case of Alamelu (supra) wherein it is held that even

though the victim had several opportunities to protest and

raise an alarm, she did not do so and conviction on the sole

testimony of victim/prosecutrix on facts is not sustainable. In

the instant case also evidence of victim discloses that she

herself has taken the lead and she has also not raised any

alarm and it was a consensual relationship.

26. Learned counsel for respondent has also placed

reliance in the case of Sanwat Singh Vs. State of

Rajasthan reported in wherein the Hon'ble Apex Court has

held that it is not enough for High Court to take a different

view of the evidence and there must be substantial and

compelling reasons for holding that the Trial Court was wrong.

It is further observed in the decision of Azmer Sing Vs. The

State of Punjab reported in (1953) SCR 418, the Hon'ble

Apex Court has held that if the High Court takes a reasonable

view on the facts of the case, interference is not justifiable

unless real strong reasons for reversing that view are

forthcoming. No such evidence is forthcoming in the instant

case. Learned counsel for respondent has also placed reliance

on the decision of the Hon'ble Apex Court in the case of

Ghurey Lal Vs. State of U.P. reported in (2008) 10 SCC

450. On appreciating these facts and circumstances, it is

evident that the victim was not minor at the time of incident

and prosecution has failed to establish the same. The

evidence of victim is inconsistent and is not reliable and her

conduct in escaping from protection home also discloses her

conduct. Under such circumstances, no much importance can

be given to her evidence and there is no other material

evidence to prove that the victim was minor and her evidence

discloses that she has voluntarily accompanied the accused as

well as she has voluntarily secured him. Apart from that, it is

alleged that she had conversant with the accused and even in

Bankapur Darga, she called the accused on mobile and all

along in touch with him. The Investigating Officer did not

bother to secure the mobile numbers of victim and accused

and call details in this regard to fix the allegation or time. All

these facts and circumstances clearly establish that the

prosecution has miserably failed to bring home the guilt of the

accused beyond all reasonable doubt.

27. Learned Sessions Judge/Special Judge has

considered all these aspects and has appreciated the oral and

documentary evidence in proper prospective. No doubt, he

has not considered the age of the victim in the light of the

observations made by the Hon'ble Apex Court. However, his

finding is in accordance with law and does not suffer from any

perversity, infirmity or irregularity so as to call for any

interference by this Court. Considering all these aspects, both

the points under consideration are answered in negative.

Accordingly, we proceed to pass the following:

ORDER

The appeal is dismissed by confirming the judgment of

acquittal dated 19.01.2018 passed by the Principal District

and Sessions Judge and Special Judge, Haveri in Spl.

S.C.No.31/2015.

Sd/-

JUDGE

Sd/-

JUDGE Naa