State Of Karnataka vs Hadapada Manjunatha S/O ...
2022 Latest Caselaw 3372 Kant

            IN THE HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH

        DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        PRESENT

      THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                          AND

           THE HON'BLE MR. JUSTICE S.RACHAIAH

          CRIMINAL APPEAL NO.100331 OF 2018

BETWEEN

   STATE OF KARNATAKA
   REPRESENTED BY THE
   SUB-INSPECTOR OF POLICE (L&O),
   HADAGALI POLICE STATION,
   DIST: BALLARI,
   THROUGH THE
   ADDL. STATE PUBLIC PROSECUTOR,
   ADVOCATE GENERAL OFFICE,
   HIGH COURT OF KARNATAKA,
   DHARWAD BENCH.

                                     ...APPELLANT

(By Sri.V.M.BANAKAR, ADDL SPP)

AND

   HADAPADA MANJUNATHA
   S/O SHEKHARAPPA
   AGE: 21 YEARS,
   OCC: WORKING IN CLOTH SHOP,
                              2

                                    Crl.A.NO.100331 OF 2018


   R/O: WARD NO.4,
   MUDUKANA KATTE AREA,
   KOTTURU CITY,
   KUDLIGI TALUK.

                                       ...RESPONDENT

(By Sri.SATHISH M S, ADVOCATE )

                             ---

     THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF
CR.P.C. SEEKING TO

A) TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 02.04.2018 PASSED BY THE I-
ADDL.   DIST.      &    SESSIONS      JUDGE,       BALLARI,    IN
S.C.NO.127/2013;


B) TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 02.04.2018 PASSED BY THE I-ADDL. DIST. & SESSIONS
JUDGE, BALLARI, IN S.C.NO.127/2013; AND

C) CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
P/U/S 366, 376 OF IPC AND U/S 3 & 4 OF POCSO ACT.

     THIS   CRIMINAL    APPEAL     HAVING   BEEN    HEARD     AND
RESERVED FOR JUDGMENT ON 10.02.2022, COMING ON FOR
PRONOUNCEMENT          OF   JUDGMENT,       THOUGH        VIDEO
CONFERENCING, THIS DAY, S.RACHAIAH J., DELIVERED THE
FOLLOWING:
                                  3

                                      Crl.A.NO.100331 OF 2018


                           JUDGMENT

The Appellant has preferred this appeal against the

acquittal order passed by the learned Special Judge, Bellary, in

S.C.No.127/2013 for the offence punishable under Sections 366

and 376 of Indian Penal Code (hereinafter for brevity referred to

as, 'IPC') and Sections 3 and 4 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter for brevity referred to as,

'POCSO').

2. For the purpose of convenience, the ranking of the

parties is considered as that of the Trial Court.

Brief facts of the case:

3. On 07.03.2013, at about 6.00 pm, the complainant

and victim had been to Hadagali for Gyaravi festival. They have

traveled in a bus and alighted at Hadagali bus stand. The

accused had also traveled in the said bus and got down at

Hadagali bus stop.

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4. The complainant had gone to bring the fruits and

asked the victim to watch the luggage and stand there. The

complainant after returning noticed that, the victim was not

there. On thorough enquiry and search, she noticed that, the

accused had taken the victim along with him in a bus. The

complainant noticed them in the bus which was moving and she

was unable to stop the bus.

5. After returning home, she, her husband (PW4) and

many elderly persons of the community approached the elders of

the accused family and informed them about the incident. The

brother of the accused i.e. PW7 assured them that he would

secure them within three to four days and requested them not to

lodge any complaint as the reputation of the family would be at

stake. Believing his version, the complainant and her husband

along with the elders returned to their respective homes and

they kept quite till 14.03.2013. On that day, the complainant

again approached the elders and informed that, the brother of

the accused had not kept his assurance and he had not made

any efforts to secure the presence of the accused and victim.

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The elders of the community advised her to lodge a complaint.

Accordingly, she lodged the complaint before the police. The

police registered the case in Crime No.19/2013 for the offence

punishable under Section 366 of IPC and Sections 12 and 18 of

the POCSO Act.

6. After investigation, the charge sheet came to be

filed. The Trial Court framed the charge against the accused.

Accused pleaded not guilty and claimed to be tried.

7. In order to prove its case, the prosecution has

examined 16 witnesses, from PWs.1 to 16 and got marked

Exs.P1 to P16 but no properties were marked as MOs. However,

the defence has got marked two documents i.e. Ex.D1 and D2.

8. The Special Court after considering the oral and

documentary evidence on record and also the arguments of the

parties opined that the prosecution has failed to prove its case

beyond all reasonable doubt and acquitted the accused. Being

aggrieved by the said judgment of acquittal, the complainant-

appellant has preferred this appeal.

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9. Sri. V.M.Banakar, learned Additional State Public

Prosecutor has advanced his arguments and sought to set aside

the order of acquittal on the following grounds:-

The trial Court has not appreciated the evidence of victim -

PW1, mother of the victim-PW2 and father of the victim-PW4

and also some other independent witnesses. The trial Court

should have considered the evidence of PW11 who is the Head

Master where the victim had studied. The Head Master has

submitted a document, i.e. Transfer Certificate of the victim

which is marked as Ex.P11. On perusal of the Transfer

Certificate, it appears that the victim girl was a minor as on the

date of incident. However, the trial Court ignored these points

while appreciating the evidence and considering the document of

Ex.P5 which was issued by the Doctor who examined the victim

and opined that she was major as on the date of incident which

is highly erroneous and arbitrary. The trial Court has not applied

judicious mind while appreciating the oral and documentary

evidence.

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10. In support of his contention, the learned Additional

State Public Prosecutor has relied upon the following judgments

for our consideration:-

i) Phool Singh Vs. State of Madhya Pradesh reported in AIR 2022 SC 222

ii) Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC

iii) B.C.Deva @ Dyava Vs. State of Karnataka reported in (2007) 12 SCC 122

11. Per contra, Sri Satish M.S., the learned counsel for

the respondent submits that there is inordinate delay in lodging

the complaint. The Doctor has not mentioned or noticed any

injuries on the victim girl and the certificate-Ex.P5 is silent about

any sexual act committed by the Accused. The victim has not

stated before the learned Judicial Magistrate about the rape

which is said to have been committed by the accused. There are

lot of inconsistencies and improvements between the witnesses.

As such, the trial Court has rightly acquitted the accused.

12. Heard both the counsels and perused the materials

on record.

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13. The points that arises for our consideration

are:

a. Whether the trial Court has justified its judgment of the acquittal passed in S.C.No.127/2013 for the offence punishable under Sections 366 and 376 of Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012?

b. Whether the complainant-State has made out any ground to interfere in the impugned judgment of acquittal passed by the trial Court?

14. Before going into the details of the case, it is

necessary to have a cursory look of all the witnesses and their

role in the case.

15. PW1- she is the victim and supported the case of the

prosecution. PW2-mother of the victim and she has lodged a

complaint. The complaint is marked as Ex.P2 and she is the

witness to the spot Mahazar which is marked as Ex.P3 and

supported the case of the prosecution. PW3 is the independent

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witness. He has stated that he accompanied PW2 and CW7 and

met the brother of the accused. He has supported the case of

the prosecution. PW4 is father of PW1 who supported the case

of the prosecution to the extent that he along with his wife and

elders of his community had approached the brother of the

accused and informed him about the incident. The brother of

the accused has assured them that he would secure the

presence of the accused and victim within two to three days.

PW5 is the police constable of Hoovina Hadagali police station.

He has stated that on 14.03.2013, he was deputed along with

other staff member to apprehend the accused and bring back the

victim. He has supported the case of the prosecution. PW6 is

the Doctor who has examined the victim and issued certificate as

per Ex.P5 and also issued Ex.P6 which is a police requisition.

Mallesh is the brother of the accused. He is supposed to depose

that PW2, PW3 and PW4 had approached him and informed him

about the incident. He has turned hostile. PW8 is the police

constable of Hoovina Hadagali police station. He has taken the

accused for examination from the Doctor. Ex.P4 items said to

have been seized got marked. He has supported the case. PW9

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is the Head Master of the Government Higher Primary School,

Kottur. He has stated that on requisition made by the I.O., he

has issued date of birth certificate which was got marked as

Ex.P9. PW10 is the witness supposed to depose about the

incident and about the members of victim's family approaching

the brother of the accused. He has not supported. PW11-is the

witness to Ex.P3 and Ex.P11. He supported the case of the

prosecution. PW12 is the Doctor who was working at

Government Hospital, Hoovina Hadagali. He has stated that on

requisition, he has examined the accused and submitted his

report as per Ex.P12. PW13-Police Constable at Hoovina

Hadagali. He has stated that he was deputed to trace the

accused and victim. He has accompanied PW5 and secured the

accused and victim. PW14- Police Sub-Inspector of Hoovina

Hadagali. He has stated that on the complaint made by PW2, he

has registered the case in Crime No.19/2013 and the same was

sent to higher officials and Court. He has conducted investigation

and submitted charge sheet. PW15- is the Doctor and she has

examined PW1 and submitted her report as per Ex.P6. PW16-

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the Doctor who examined the victim has submitted a report as

per Ex.P16.

16. Before proceeding further, it is necessary to consider

as to whether the trial Court has justified in taking the age of the

victim as aged 18 - 20 years and considering her as major as on

the date of incident. Now, it is necessary to go through the

provision under section 7A of the Juvenile Justice Act, 2000,

which was inserted by an amendment with effect from

22.08.2006. The following documents are suggested to

determine the age and claiming the juvenility, such are:-

(I) The date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination board, if available; and in the absence thereof;

(II) The Birth certificate given by a corporation or municipality or a panchayath;

(III) and only in the absence of (I) and (II) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the committee or the board.

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17. In the present case, the Trial Court has committed

an error by considering the medical certificates-Ex.P5 to

determine the age of the victim as 18 to 20 years which is

erroneous and against the law. The trial Court ought to have

considered the evidence of PW9 who is the Head Master of the

school, where the victim girl has studied and also the admission

register extract produced by him which is marked as Ex.P9 and

transfer certificate Ex.P11 which indicates the date of birth of the

victim as 08.02.1998. As per the provision under section 7A of

the Juvenile Justice Act, the primary document to determine the

age of the victim is the date of birth certificate issued from the

school. The document which the prosecution relied upon is the

Transfer certificate, issued by the school. The document reveals

her date of birth as 08.02.1998. As per the above said

document, the age of the victim was below 16 years as on the

date of incident. This Court opines that the said victim is minor

as on the date of incident.

18. As regards, the offence under Section 376 of IPC is

concerned; it is the trite law that the sole testimony of the

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prosecutrix can be relied upon for conviction, if it inspires

confidence of the Court in a rape case. However, such evidence

of the prosecutrix should be of sterling quality.

19. Now, it is relevant to place reliance on the judgment

in the case of Phool Sing Vs. State of Madhya Pradesh,

reported in AIR 2020 SC 222. Para 6 reads thus:

"6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults."

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20. Further, the reliance is placed on the judgment of

the Hon'ble Supreme court in the case of Vijay @ Chinee Vs.

State of Madhya Pradesh reported in (2010) 8 SCC 191.

Paragraph 9 reads thus:

"9. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:-

16. "A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is

Crl.A.NO.100331 OF 2018

necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

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21. A careful reading of the above two judgments of the

Hon'ble Apex Court, reveals that the sole evidence of the

prosecutrix is sufficient to base a conviction rather than seeking

corroboration provided, the evidence of the prosecutrix should

inspire confidence in the Court. In the sense, the statement of

the prosecutrix, if found to be worthy of credence and reliable,

require no corroboration. However, the solitary evidence of the

prosecutrix should inspire the confidence of the Court and it

should be of sterling quality.

22. As regards the solitary evidence and sterling quality

is concerned, it is necessary to place reliance on the Judgment of

the Hon'ble Supreme Court, in the case of Krishan Kumar

Malik Vs. State of Haryana reported in (2011) 7 SCC 130.

The Hon'ble Supreme Court observed that, to hold an accused

guilty of the commission of the offence of rape, the solitary

evidence of prosecutrix is sufficient provided, the same inspires

confidence and appears to be trustworthy, unblemished and

should be of sterling quality.

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23. Now, the question that would arises for our

consideration is as to how we should consider the "sterling

quality" of the evidence. The same is answered by the Hon'ble

Supreme Court, in the case of Rai Sandeep Vs. (NCT) of

Delhi, reported in 2012 8 SCC 21 in para 22, wherein the

Hon'ble Supreme Court has observed that, the definition

"sterling witness" should be of a very high quality and caliber

whose version should, therefore, be unassailable. The court

considering the version of such witness should be in a position to

accept it for its face value without any hesitation. To test the

quality of such witness the status of the witness would be

immaterial and what would be relevant is the truthfulness of the

statement made by such witness. What would be relevant would

be the consistency of the statement right from the starting point

till the end, namely, at the time when the witness makes the

initial statement and ultimately before the Court, it should be

natural and consistent with the case of the prosecution qua the

accused.

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24. In the present case on hand, PW1-victim has been

consistent in her evidence about the commission of alleged rape

and kidnap by the accused. She has stated that, she was taken

to different places and the accused had sexual intercourse with

her despite her resistance. In spite of the lengthy cross

examination, she has withstood it and supported the case of the

prosecution. Now, the question is whether her evidence inspires

confidence in the Court to believe her evidence to base the

conviction with respect to Section 376 of IPC. Though, PW1 had

given her statement under section 164 of Cr.P.C., before the

learned Judicial Magistrate, it appears that, she has not

whispered about the alleged commission of rape before the

learned Magistrate. However, for the first time, she has deposed

before the Court about the alleged commission of rape. This

creates serious doubt in the mind of the court about the alleged

rape.

25. The omission to state the fact before the learned

Judicial Magistrate and stating the same for the first time before

the Court in her examination - in - chief amounts to

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improvement. Such improvement is considered as material

component. Hence, we are of the opinion that the prosecution

has failed to prove the alleged commission of rape said to have

been committed by accused No.1 through the evidence of PW1.

26. However, in order to take corroboration if any, it is

necessary to consider the evidence of the Doctor who had

examined the victim and submitted the report and the same has

been marked as Ex.P5. The incident said to have been occurred

on 08.03.2013, the victim had been secured by the police and

subjected her for medical examination on 14.03.2013. The

Doctor who examined her has opined that the victim has not

been subjected for recent sexual intercourse. However, P.W.1 in

her examination - in - chief has stated that, the accused used to

have sexual intercourse with her on everyday. But, the opinion

clearly establishes that, no sexual intercourse has taken place

recently. Hence, the alleged commission of rape has not been

established through the medical record also. Such being the

fact, it would be inappropriate to arrive at a conclusion that the

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prosecution has proved the case of alleged rape beyond all

reasonable doubt.

27. As regards the offences under the POCSO Act is

concerned, it is necessary to go through the provisions of

Sections 3 and 4 of the POCSO Act which read thus:

"3. Penetrative sexual assault -A person is said to commit "penetrative sexual assault" if-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

4. Punishment for penetrative sexual assault:-

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(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than *ten years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

28. From a reading of the above provisions, as we have

already discussed supra, the prosecution has not proved the

case of rape beyond all reasonable doubt through the evidence

of PW1. As the evidence of P.W.1 with regard to the alleged

offence of rape has failed, invocation of provision under Sections

3 and 4 of the POCSO Act is would not arise. Accordingly, we

answer it in negative for the above said offences.

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29. As regards Section 366 of IPC is concerned, it reads

as follows:-

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

30. There are two parts of the definition, one is, the

person who abducts the woman to compel her to marry and

have illicit intercourse, secondly, by means of criminal

intimidation induces any woman to go from any place with intent

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that she may be or knowing that it is likely that she will be,

forced or seduced to illicit intercourse with another person. In

the present case, from the reading of the evidence of PW1, PW2,

PW3 and PW4 it establishes that the accused had induced her

and taken her away from the lawful custody of her mother.

However, there is no evidence to that effect that, the accused

has forced or seduced the victim to have illicit intercourse with

another person. Such being the fact, Section 366 Part II would

not be attracted. The first part that, the person who abducts the

woman and compels her to marry and have illicit intercourse

with him, is squarely applicable to the case on hand. PW1 in her

evidence is consistent right from the very beginning with regard

to the kidnap and the same has been corroborated by the

evidence of PWs.2, 3 and 4 and also the police officials like PW5

and PW13. According to the evidence of PW5 and 13 it emerges

from the record that, they have secured the presence of the

victim and apprehended the accused near Bagalkot bus stand. It

is proved fact that, the victim was in the company of the accused

and she was away from her parents. No attempts are made by

the defense to discredit the evidence of PW1, PW5 and PW13

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with regard to arrest and securing their presence from Bagalkot.

Hence, this court after considering the age of the victim, opined

that, she was a minor as on the date of incident and the offence

under Section 366 of IPC has been clearly established and

proved by the prosecution. Accordingly, we hold that the

accused has committed offence under Section 366 of IPC.

31. As regards the delay in lodging the complaint is

concerned, now, it is necessary to analyze the delay by

considering the evidence on record. The date of incident as per

the prosecution is on 07.03.2013. PW2 the mother of the victim

soon after the incident gone to her house and informed the

incident to her husband and also the elders of the community.

All of them had been to the house of PW7 who is the brother of

the accused and informed about the incident. The independent

witness -PW3 has stated that he and PW2 and PW4 had

approached the PW7. The said PW7 stated that he would take

three to four days to search and secure the presence of the

victim and accused. As a result, the elders of the community

have advised PW2 and PW4 not to lodge a complaint. Even, PW2

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and PW4 being the mother and father of the victim have thought

it appropriate not to lodge a complaint as the reputation of the

family is involved and they kept quite till 14.03.2013. As a last

resort, since they could not find out the victim even after lapse

of eleven days, except lodging a complaint there was no other

way to secure her presence, accordingly, they decided to lodge

complaint. As a result, delay of eleven days has been caused to

lodge the complaint. Such delay is acceptable and it has been

satisfactorily explained by PW2 and PW4 and also corroborated

by evidence of PW3. Hence, the delay in lodging FIR has been

satisfactorily explained and accepted.

32. For foregoing reasons, the evidence of PW1 and PW9

and also the document which is marked as Ex.P9 would

indicate that, she was a minor as on the date of incident. The

evidence of PW1 inspires confidence of the Court with

regard to the offence punishable under Section 366 of IPC but,

not under Section 376 of IPC and also Sections 3 and 4 of

POCSO Act. The trial Court has adopted erroneous method to

arrive at a conclusion that the age of the victim girl was 18 to 20

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years by considering the medical certificate issued by the Doctor,

which has been marked as Exs.P5 and passed the impugned

judgment. Hence, the prosecution has made out grounds to

interfere in the impugned order of acquittal.

a) Accordingly, the Appeal is allowed-in-

part.

b) The accused is convicted for the offence

punishable under Section 366 of IPC and

is sentenced to undergo simple

imprisonment for four years and pay the

fine of `5,000/- (Rupees Five Thousand

only) for the offence punishable under

section 366 of IPC and in default to pay

the fine, the accused shall undergo one

year rigorous imprisonment.

c) The acquittal of the accused for the

offence punishable under Section 376 of

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IPC and Sections 3 and 4 of the POCSO

Act is confirmed.

d) Further, it is directed that, the accused

shall surrender before the Special Court

within 15 days from the date of expiry of

the appeal period. Otherwise, the Special

Court to take necessary action in this

regard.

Sd/-

JUDGE

Sd/-

JUDGE

Vmb