The State vs Sri. J.K. Kumara
2022 Latest Caselaw 1720 Kant

                             1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 4TH DAY OF FEBRUARY, 2022

                       PRESENT

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                          AND
         THE HON'BLE MR. JUSTICE P.N.DESAI

         CRIMINAL APPEAL NO. 2074 OF_2016
BETWEEN:
The State
By Ponnampet Police
Rep. by State Public Prosecutor
High Court Building
Bangalore - 01.
                                       ...Appellant

(By Smt. K.P. Yashodha - HCGP)

AND:
1.     Sri. J.K. Kumara
       S/o Nagaraju
       Coolie
       Aged about 23 years
       R/o Konankatte Village
       Virajpet Taluk
       Kodagu District - 571218.

2.     J. K. Shivu
       S/o Honna
       Aged about 42 years
       R/at Rubee Estate
       Konanakatte Village
                                 2


      Sulugodu, Ponnampete
      Kodagu District.
      (vide court order dated 04.02.2022, Respondent No.2
        is impleaded)
                                                ...Respondents

      (Respondent No.1 served and unrepresented;
       Vide court order dated 04.02.2022, I.A.1/2022 for
       impleading R-2 is allowed and notice to Respondent
       No.2 is dispensed with)

      This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to i) grant leave to appeal against the
judgment and order of acquittal dated 06.06.2016
passed by the learned Prl. Sessions and Special Judge
at   Kodagu    -    Madikeri    in   Special    Case   (POCSO)
No.58/2015,        thereby   acquitting   the   respondent   /
accused for the offences punishable under Sections
376(2)(f), (i) and (n) of IPC and under Section 6 of
POCSO Act, 2012; ii) set aside the judgment and order
of acquittal dated 06.06.2016 passed by the learned Prl.
Sessions and Special Judge at Kodagu - Madikeri in
Special Case (POCSO) No.58/2015, thereby acquitting
the respondent / accused for the offences punishable
under Sections 376(2)(f), (i) and (n) of IPC and under
Section 6 of POCSO Act, 2012; and iii) convict and
sentence the accused / respondent for the offences
                              3


punishable under Sections 376(2)(f), (i) and (n) of IPC
and under Section 6 of POCSO Act, 2012.

      This criminal appeal coming on for orders this
day, K. Somashekar .J delivered the following:

                    JUDGMENT

This appeal is directed against the acquittal

judgment rendered by the Trial Court in Spl.Case

(POCSO) No.58/2015 dated 06.06.2016 acquitting the

accused for offences punishable under Sections

376(2)(f), (i) and (n) of IPC, 1860 besides Section 6 of the

POCSO Act, 2012. The State has preferred this appeal

by urging various grounds seeking consideration of the

grounds urged in this appeal and consequently to set

aside the acquittal judgment rendered by the Trial

Court in Spl.Case (POCSO) No.58/2015 and to convict

the accused for the aforesaid offences.

2. This appeal is slated for hearing on application

filed under Section 482 of the Cr.P.C. which is

numbered as I.A.No.1/2022 for impleading one J.K.

Shivu S/o. Honna as a party / Respondent No.2 to the

proceedings. This application is supported with

memorandum of facts filed by the learned HCGP for the

State Smt. K.P. Yashodha, wherein she has prayed to

implead one J.K. Shivu S/o. Honna as a party /

Respondent No.2 to these proceedings in accordance

with the provision of Section 40 of the POCSO Act,

2012. The reasons assigned in the said application

being found to be justifiable. Consequently

I.A.No.1/2022 is allowed in the interest of justice.

Learned HCGP is permitted to amend the cause-title

accordingly. However, notice to Respondent No.2 is

dispensed with.

3. Respondent No.2 / J.K. Shivu is none other

than the father of the victim whereby the victim girl has

been examined as PW-3. In view of the fact that he has

been arraigned as a party to this appeal, he shall also

take care of his daughter who is the victim / PW-3 who

is subjected to examination. Both PW-2 and PW-3 did

not withstand the versions of their statements and

allegations and they have given a go-by to the versions

of the prosecution theory and consequently the case

had ended in acquittal of the accused.

4. PW-1 / B.D. Raveendra being the District Child

Protection Officer ('DCPO' for short) who is arraigned as

the complainant, had made a report before the

concerned police to initiate criminal prosecution against

the accused, as a result of which the complaint was

filed. Criminal law was set into motion in accordance

with the relevant provisions of the Cr.P.C. and so also

proceeded in accordance with the Indian Evidence Act,

1872. But the same ended in acquittal for offences

leveled against the accused namely Kumara

S/o. Nagaraju who is arraigned as respondent No.1

herein. Respondent No.2 / J.K. Shivu S/o. Honna is

the father of the victim and Kumara S/o Nagaraju is the

accused before the Trial Court in Spl.Case (POCSO)

No.58/2015. But the domain is vested with the

prosecution to take care of not only the prosecution

witnesses but equally take care of the accused also

under the relevant provisions of the Cr.P.C. as well as

the relevant provisions of the Indian Evidence Act,

1872. But Article 21 of the Constitution of India

envisages that personal life and liberty shall be

protected and speedy justice shall also be envisaged by

the Constitution of India. Therefore, in this matter,

keeping in view the submission made by the learned

HCGP for the State, though the matter is slated for

hearing on I.A.No.1/2022 for impleadment, but in the

interest of the prosecution and so also the accused

inclusive of the victim who is a minor who is

represented by her father who is examined as PW-2 and

with the consent of the learned HCGP for the State, this

matter is taken up for final disposal.

5. Heard the learned HCGP for the State and

perused the impugned judgment of acquittal rendered

by the Trial Court in Spl.Case (POCSO) No.58/2015

dated 6.6.2016. This acquittal judgment consists of the

evidence of PW-1 to PW-3 and also documents at

Exhibits P1 to P10. However, no material objects have

been marked on the part of the prosecution. But based

upon the complaint report as per Exhibit P3 of Shri

Raveendra B.D. / PW-1 who is a District Child

Protection Officer, criminal law was set into motion.

The said DCPO's information letter is marked as Exhibit

P1 and PW-3 who is a victim has also given her

statement as per Exhibit P2. Exhibit P4 is the Spot

Mahazar. PW-2 namely Shivu J.K. who is the father of

the victim girl, had been subjected to examination and

his statement has been got marked at Exhibit P5.

Exhibit P6 is the Spot Mahazar which has been

conducted by the I.O. in the presence of panch

witnesses. Exhibit P7 is another spot mahazar

conducted by the I.O. in the presence of panch

witnesses. But more importantly, the victim who is

examined as PW-3 had given statement as contemplated

under Section 164 of the Cr.P.C. at Exhibit P8. Exhibit

P9 is the Consent medical form, which form has been

got marked with the consent. Exhibit P10 is the further

statement of PW-3 who is the victim. But at a cursory

glance of the evidence of PWs 1, 2 and 3, the Trial Court

in Special Case (POCSO) No.58/2015 being convinced

with the evidence, held that the prosecution did not

facilitate worthwhile evidence in respect of the offences

leveled against the accused and consequently rendered

an acquittal judgment for offences reflected in the

operative portion of the order, which is challenged in

this appeal by the State / appellant.

6. Learned HCGP for the State in this matter has

taken us through the report submitted by the DCPO

and based upon his report, criminal law was set into

motion and Exhibit P3 is the complaint which has been

got marked. But criminal law was set into motion by

recording an FIR as contemplated under Section 154 of

the Cr.P.C. Subsequent to setting the criminal law into

motion, the Investigating Officer has taken up the case

for investigation and followed the mandatory provision

of Section 173(2) Cr.P.C. whereby he recorded the

statement of witnesses and drew the mahazars in the

presence of panch witnesses inclusive of recording the

statements of the victim which is marked at Exhibit P8.

Merely because the appeal ended in acquittal, it cannot

be said that the victim has not given statement as

contemplated under Section 164 Cr.P.C. This

statement has been recorded by the responsible Judicial

Magistrate, First Class and the same can be considered

even at this stage though an acquittal judgment has

been rendered by the Trial Court. On all these premise,

learned HCGP for the appellant seeks for intervention in

this appeal relating to the acquittal judgment rendered

by the Trial Court. If not, there shall be some

substantial miscarriage of justice to the complainant

who is a victim in this case relating to the crime

registered and criminal law being set into motion.

These are all the submissions made by the learned

HCGP for the State seeking to consider the grounds

urged in this appeal and consequently to set aside the

acquittal judgment rendered by the Trial Court in the

special case. Consequent upon setting aside the

acquittal judgment, she seeks to convict the accused for

offences under Section 376(2)(f), (i) and (n) of the IPC,

1860 besides Section 6 of the POCSO Act, 2012.

7. In the above context of the contentions made by

the learned HCGP for the State and more so the

grounds urged in this appeal by the State challenging

the acquittal judgment rendered by the Trial Court, it is

relevant to refer to a report which has been filed before

this Court as on 04.02.2022. The said report has been

given by the Circle Inspector of Police, Gonicoppa Circle,

in Kodagu District which is dated 22.08.2017 regarding

victim and the child bearing Reference G.O.No.HD 7878

HCP-II; 2016 dated 10.11.2016 Fax Message dated

19.08.2017 and further reference in Cr.No.79/2015

relating to offences lugged against the accused under

Section 376(2)(j)(i)(n) of the IPC, 1860 and Section 6 of

the POCSO Act, 2012.

The said letter dated 22.08.2017 has been

addressed to the Government Pleader, High Court of

Karnataka, Bengaluru, wherein it is stated that on

enquiry with the victim and her father Shri J.K. Honna,

that the victim had delivered a female baby named

Preethi 1 ½ years back and as of now, that the baby

was healthy. Further, the victim has also married

Kumara who was accused in Cr.No.79/2015 and more

so, he had faced trial but the case had ended in

acquittal.

It is also relevant to refer to the statements made

by the victim in her letter dated 22.08.2017 annexed to

the said report, stating that she is presently residing

along with her family members namely Honna, Kamala

and her husband Kumara S/o. Nagaraju who is the

accused and their daughter Preethi in the line house of

Cheppudira Kushalappa situated in the limits of

Konanakatte village. She has further stated that

incident had taken place in the year 2015 as stated in

the report filed by the District Child Development Officer

and due to physical contact in between the victim girl

and the accused, she had become pregnant and

thereafter on the basis of the report made by the DCDO

of Kodagu District, criminal law was set into motion by

registering the crime against the accused persons. On

02.06.2017, after completion of the case registered

against the accused and also after completion of the

proceedings, the accused had come out from the

incarceration and within a period of one week that her

parents had performed the marriage of the victim girl

with the accused Kumara and subsequent to their

marriage, that the accused and the victim girl started

residing along with her family members, in the line

house of one Cheppudira Kushalappa situated in the

limits of Konanakatte village. Further, that the victim

girl has also given birth to a female child named Preethi.

Not only the accused had married the victim girl, but

also is looking after her as well as her daughter Preethi

very well. This is the statement given by the victim

dated 22.08.2017. The said report as well as letter

which are filed before this court by the learned HCGP,

are taken on record.

8. Under the relevant provisions of the Cr.P.C., the

State / appellant herein has challenged the acquittal

judgment rendered by the Trial Court by urging various

grounds. But however, from the report furnished by the

learned HCGP, it is revealed that after the acquittal

judgment rendered by the Trial Court, as per the wishes

of her parents and grandparents, the victim girl has

married the accused Kumara and has also given birth to

a female child and is residing with the said Kumara

peacefully. Hence, no purpose would be served even to

re-appreciate the evidence and to re-visit the impugned

judgment of acquittal rendered by the Trial Court

considering the evidence of PW-1 to PW-3 inclusive of

the documents at Exhibits P1 to P10. Further, the

victim PW-3 had given a go-by to the versions of her

statements at Exhibit P8 and similarly, PW-2 / Shivu

J.K. who is the father of the victim girl has also given a

go-by to the versions of his statements at Exhibit P5.

Therefore, no purpose would be served and it would also

amount to otiose even to re-appreciate the evidence as

well as the exhibited documents at Exhibits P1 to P10.

Consequently, we are of the opinion that the appeal

preferred by the State does not hold any substance and

there is no bone of contention to re-visit the acquittal

judgment rendered by the Trial Court.

9. Learned HCGP Smt. K.P. Yashodha who is

present before court physically also submits that the

victim girl PW-3 and the accused are living happily.

Even he got married with the victim girl and the victim

girl is blessed with a female baby aged 1½ years. This

submission made by the learned HCGP is placed on

record. Keeping in view Article 21 of the Constitution of

India which envisages that personal life and liberty shall

be protected, this observation is made for disposal of

this case in the interest of justice. Consequently, the

appeal deserves to be dismissed as being devoid of

merits. Accordingly, we proceed to pass the following:

ORDER

The appeal preferred by the appellant / State

under Section 378(1) and (3) of the Cr.P.C. is hereby

rejected. Consequently, the acquittal judgment rendered

by the Trial Court in Spl.Case (POCSO) No.58/2015 is

hereby confirmed. If any bail bond executed by the

accused, the same shall stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE

KS