State Of Karnataka vs Sri Somashekar
2022 Latest Caselaw 265 Kant

                                1

                                                    R

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 07TH DAY OF JANUARY, 2022

                            PRESENT

            THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                               AND

               THE HON'BLE MR. JUSTICE P.N.DESAI

               CRIMINAL APPEAL NO.1741/2016
BETWEEN:

STATE OF KARNATAKA,
BY SATHANUR POLICE,
REP BY SPP,
HIGH COURT BUILDING,
BANGALORE-560 001.
                                             ... APPELLANT
(BY SRI. RAHUL RAI. K, HCGP)

AND:

 1.     SRI. SOMASHEKAR,
        S/O VISHAKANTAIAH,
        AGED ABOUT 32 YEARS,
        R/O HANUMANTHANAGAR,
        DODDAHALAHALLLI VILLAGE,
        KANAKAPURA TALUK-5621 172.

 2.     SMT DEVARAJAMMA,
        W/O GOVINDAIAH,
        AGED ABOUT 49 YEARS,
        R/AT HANUMANTHANAGARA,
        DODDAHALAHALLLI VILLAGE,
        KANAKAPURA TALUK,
        RAMANAGARA DISTRICT- 562 117.
        [




                                         ... RESPONDENTS
(BY SRI. PAVAN KUMAR.G, ADV FOR R-1)
         VIDE COURT ORDER DATED 07/01/2022,
         NOTICE TO R2 IS DISPENSED WITH)
                              2




      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C BY THE S.P.P. FOR THE APPELLANT PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 29.04.2016 PASSED BY THE I ADDL. DISTRICT
AND SESSIONS JUDGE., RAMANAGARA, IN SPL.S.C.NO. 74/2014
ACQUITTING THE RESPONDENT-ACCUSED OF THE OFFENCES
PUNISHABLE UNDER SECTIONS 448, 354A, 366A OF IPC AND SEC.18
OF POCSO ACT 2012.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
K. SOMASHEKAR.J, DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal is preferred by the State challenging the

judgment of acquittal rendered by the 1st Addl. District and

Sessions Judge/Spl. Judge, Ramanagara in

Spl.S.C.No.74/2014 dated 29th April 2016 and whereby held

acquittal of the accused for the offences punishable under

Sections 448, 354A, 366A of Indian Penal Code, 1860 (for

short hereinafter referred to as 'IPC') and section 18 of The

Protection of Children from Sexual Offences Act, 2012 (for

short hereinafter referred as 'POSCO Act' 2012). Whereas,

under this appeal, the State is seeking for setting aside the

acquittal rendered by the trial court by considering the

grounds as urged therein and consequently convicting the

accused for the aforesaid offences.

2. Heard learned HCGP Sri. Rahul Rai. K for State

and learned counsel Sri. Pavan Kumar. G. who is appearing

through video conferencing for the respondent. Perused the

impugned judgment of acquittal rendered by the sessions

court in Spl.S.C.No.74/2014 and the evidence of PWs-1 to 3

and so also documents at Exs-P1 to P11 inclusive of M.O.1

and M.O.2.

3. The factual matrix of the appeal are as under:-

It is transpired in the case of the prosecution that on

21.05.2014 at around 15 hours at Hanumanthanagara,

Doddalahalli village in Kanakapura Taluk, that the accused

criminally trespassed into the house of the victim Kum.

Pallavi. G, aged about 15 years being arraigned as CW-2 in

the charge sheet materials with intention to commit some

sort of sexual assault on her. At the time of trespassing into

the house of the victim that the accused having been

physically contacted with her, advanced towards her, closed

her mouth with means of green veil and also tore the back

portion of her chudidhar and then the accused said to have

abducted her with the purpose of some sexual contact from

lawful guardian of her parents. It is further stated that the

victim is a minor and aged about 15 years and based upon

the complaint, criminal law was set into motion by

registering the FIR by the jurisdictional police at Ex-P10 and

then the Investigating Officer has taken up the investigation

and laid the charge sheet against the accused before the

court having jurisdiction. During the course of investigation,

the IO recorded the statement of the victim as per Ex-P2.

4. Subsequent to securing the accused by the special

court and hearing charges and after hearing both sides

namely the prosecution and defence counsel, the Special

court framed charges against the accused for the offences

punishable under sections 448, 354A, 366A of IPC, 1860

and so also offence under sections 4 and 18 of POCSO Act,

whereby the accused pleading not guilty and claimed to be

tried, accordingly, plea of the accused was recorded.

5. Subsequent to framing of charge, the prosecution in

all examined three witnesses as PWs-1 to 3, but charge

sheet has been laid by IO by citing witnesses as CWs- 1, 2

and 18, documents at Exs-P1 to P11 were got marked and

M.O.1 and M.O.2 was also got marked. Subsequent to

recording of evidence of PWs 1 to 3, that the trial court

recorded 313 statement of the accused appearing against

him. But the accused denied the incriminating evidence

adduced by the prosecution. Subsequently, accused did not

come forward to adduce any defence evidence as

contemplated under section 233 of Cr.P.C.

6. PW-1 Kum. Pallavi G is the victim, PW-2

Devarajamma-mother of the victim and PW-3 Siddegowda

is the Investigating Officer who laid the charge sheet

against the accused. That PW-1 Kum. Pallavi who is victim

and the accused are relatives. PW-2 Devarajamma has

turned hostile to the case of the prosecution. Even though

she was subjected to examination by PW-3 during his

investigation for recording her statement, but she has given

go-bye to the case of the prosecution. The trial court has

examined the accused as contemplated under section 313

Cr.P.C. Subsequent to closure of the evidence, the trial

court has come to the conclusion that the prosecution has

miserably failed to prove the guilt of the accused by

facilitating worthwhile evidence and consequently rendered

the acquittal judgment. It is this judgment which is under

challenge by urging various grounds in this appeal.

7. Keeping in view the evidence of PWs-1 to 3, it is

deemed appropriate for referring to section 232 Cr.P.C.

relating to acquittal, if, after taking the evidence for the

prosecution, examining the accused and hearing the

prosecution and the defence on the point, the trial judge

considers that there is no evidence that the accused

committed the offences, then the trial judge shall record an

order of acquittal. This is the ambit of section 232 of Cr.P.C.

8. Whereas as per section 235 of Cr.P.C which relates

to judgment of acquittal or conviction, as per section 235(1)

Cr.P.C., after hearing arguments and points of law(if any),

the trial judge shall give a judgment in the case and as per

235(2) Cr.P.C., if the accused is convicted, the trial judge

shall, unless he proceeds in accordance with the provisions

of section 360 Cr.P.C., hear the accused on the question of

sentence, and then pass sentence on him in accordance

with law.

9. Whereas in the instant case, PW-1 who is a victim is

also a relative of the accused and both accused and victim

were residing in the same locality in opposite houses. As per

the prosecution case, at the time of the incident, nobody

was present in the house of victim, the father of victim had

been for reception function in the village and her mother-

PW-2 had been to coolie work and the said opportunity is

alleged to have been used by the accused and he criminally

trespassed into the house of victim. Subsequently, the

accused alleged to have abducted her from her house. But

the victim PW-1 has turned down in her further cross

examination insofar as her narration in her statement and

so also in her evidence. The victim has given statement as

contemplated under section 164 Cr.P.C. and this statement

was recorded by the Judicial Magistrate of the first class

which statement has not been supported by the victim and

it is not substantive piece of evidence, unless her evidence

relating to averments and narration in Ex-P3 complaint and

so also narration made by her in her statement at Ex-P2 are

in conformity, it cannot come to the conclusion that the

prosecution has proved the guilt of the accused beyond all

reasonable doubt.

10. PW-2 Devarajamma who is none other than

mother of the victim PW-1 even though has been subjected

to examination on the part of the prosecution, but she did

not support the case of the prosecution. More so, the

evidence of PWs-1 and 2 in respect of Ex-P3-complaint and

in respect of Ex-P2 statement made by the victim as

contemplated under section 164 Cr.P.C. are contrary to the

evidence of PW-3 Siddegowda who is an I.O. PW-1 victim

alleged to have been a minor aged 15 years as on the date

of the incident has narrated about the incident in mahazar

at Ex-P1 which bears her signature, PW-2-mother of the

victim. However both have not supported the case of the

prosecution in any extent. Their evidence is contrary to the

evidence of PW-3 Siddegowda, who has laid the charge

sheet against the accused by securing the victim's medical

certificate at Ex-P5 and conducting mahazar at Ex-P4, the

medical certificate at Ex-P6 of the accused, Ex-P7 letter

from Government High School, Ramanagara certifying the

date of birth of victim, Ex-P8 letter written by Grama

Panchayath, Dodda Alahalli, Ramanagar and Ex-P8 letter

written by Grama Panchayat, Alahalli, Ramanagar and Ex-

P9 is the letter of Grama Panchayat, Alahalli, Ramangar all

bears the signature of PW-3- Investigating Officer.

11. These are all the material documents which are

marked on behalf of the prosecution. Ex-P10 is the FIR

which has been recorded based upon the complaint at Ex-P3

under section 154 Cr.P.C., and it is deemed appropriate that

soon after registering the FIR, the domain vested with the

investigating agency to follow the requisite condition under

section 173 Cr.P.C. During the course of investigation, the

Investigating Officer recorded the statement of the

witnesses and so also secured material documents inclusive

of mahazar and laid the charge sheet as contemplated

under section 173(2) r/w 167(2)(a)(i) and (ii) Cr.P.C. In the

instant case, the investigating officer has followed the

aforesaid provision and the prosecution has let in evidence

by examining PW-1 Kum. Pallavi who is the victim. PW-1

Kum. Pallavi in her evidence has stated that her parents

CW1 and CW-5 are staying in a house which has got only

one main door and the house of the accused is situated in

front of their house and she was studying 10th standard as

on the date of her deposition and her date of birth is

02.01.2000. That her father by avocation do gate work and

her mother does coolie work to eke out their livelihood. But

on the date of the incident i.e., on 21.05.2014, there was

reception function after marriage in the house of

Nanjundaiah in her village. That her mother had gone to

coolie work and her father had been on leave to attend the

reception function in her village. Even she has gone to

attend coolie work with her mother PW-2 Devarajamma and

due to head ache, she came back and took medicine and

slept in the house. While, she was alone in the house at

around 3.00 p.m., she heard some sound of knocking of the

door and she was under the impression that her father

might have come back, but when she opened the door, she

saw the accused in front of the door and he criminally

trespassed by gagging her mouth and carried her from her

house to his house which was opposite to her house. Then

he made her to have some sexual assault and attempted to

remove her chudidhar pant, he scratched on her back as a

result, the victim suffered injury over her back and she

kicked him and shouted for help, in the meanwhile, CW-3

and CW-4 came to her rescue. Subseqently, the accused

escaped from there. Subsequent to filing of complaint by

the complainant PW-2 and recording FIR at Ex-P10, criminal

law was set into motion and thereafter her statement at

Ex-P2 was recorded as contemplated under section 164

Cr.P.C. PW-1 did not support the case of the prosecution

even for arrival of conclusion that the prosecution has

proved the guilt of the accused with all reasonable doubt for

the offences punishable under section 354A and 448 of IPC

inclusive of section 18 of POCSO Act, 2012.

12. At a cursory glance of evidence of PW-1 and

witnesses subjected to cross-examination after being turned

hostile, nothing worthwhile has been elicited by the

prosecution for consideration, whether the accused has

committed the alleged offences as narrated in complaint at

Ex-P3 and as narrated in her statement at Ex-P2 which has

been recorded by Judicial Magistrate of first class.

13. PW-2 Devarajamma who is none other than

mother of the victim who subscribed her signature at Ex-P1

has turned hostile to the case of the prosecution. Even on

incisive cross-examination, nothing worthwhile has been

elicited from her evidence. However, PW-3 Investigating

Officer who investigated the case in its entirety, after

completion of investigation laid the charge sheet against the

accused. Mere laying of the charge sheet by PW-3, unless

his evidence is corroborated with independent evidence on

the part of the prosecution, that too, evidence of PW-1

victim and also evidence of PW-2 Devarajamma, it cannot

be held that the prosecution has proved the guilt of the

accused beyond all reasonable doubt.

14. It is relevant to refer to section 134 of Indian

Evidence Act, 1872 - Number of witnesses- No particular

number of witnesses shall in any case be required for the

proof of any fact. It is well known principle of law that

reliance can be based on the solitary statement of a witness

if the court comes to the conclusion that the said statement

is the true and correct version of the case of the

prosecution. The same was extensively addressed in the

case of RAJA v. STATE, reported in (1997) 2 Crimes

175(DEL) and it is the quality of the evidence and not the

quantity of the evidence which has to be judged by the

court to place credence on the statement.

15. In the instant case, the prosecution has examined

in all three witnesses namely PWs-1 to 3. PW-1 is the

victim, PW-2 is the mother of the victim and PW-3 is the

Investigating Officer who laid the charge sheet against the

accused by conducting mahazar, securing material

documents in order to comply with the provisions of section

173(2) Cr.P.C. during the course of investigation and also

laying chargesheet within the stipulated period as

contemplated under section 167(2)(a) (i) (ii) Cr.P.C.

16. Whereas learned HCGP for State in this matter

submitted that PW-1 who is the victim was studying 10th

standard and aged 15 years was abducted by the accused

from the lawful guardian of her parents with intention of

having sexual assault on her which attract the offence

under section 18 of POSCO Act, which evidence should have

been appreciated by the trial court. However, the

prosecution was not given sufficient opportunity to establish

the guilt against the accused by securing the other

witnesses who have been cited in the charge sheet. On this

premise, he is seeking for intervention under this appeal, if

not, there shall be miscarriage of justice to the victim and

also gravamen of the incident narrated in her complaint at

Ex-P3 and so also narrated by her in her statement at

Ex-P2, whereby statement was recorded by Judicial

Magistrate of first class. On this premise, seeks for allowing

the appeal by setting aside the acquittal judgment rendered

by the trial court and convict the accused for the aforesaid

offences.

17. Whereas learned counsel Sri. Pavan Kumar. G,

appearing for the respondent has taken us through the

evidence of PW-1 victim who has given statement as per

Ex-P2 and her mother has given complaint and she has

narrated the incident as to how it took place on the date of

the incident and more so, accused criminally trespassed into

her house when she was alone in the house and also

abducted her from her parents lawful guardian with

intention of having sexual assault, however, no ingredients

has been proved by the prosecution even by subjecting PW-

1 to examination to prove the guilt of the accused beyond

all reasonable doubt. PW-1 has also turned hostile to the

case of the prosecution and even after incisive cross-

examination, nothing worthwhile has been elicited by the

prosecution to believe the version of her statement at Ex-P2

and also version of complaint at Ex-P3. PW-2 Devarajamma who

is none other than the mother of victim has even turned hostile

to the case of the prosecution and nothing worthwhile has been

elicited in respect of fulcrum of mahazar at Ex-P1 and also

fulcrum of mahazar at Ex-P4. The evidence of PW-1 and PW-2

has been rendered contrary to the evidence of PW-3

Siddegowda, even though he secured all the documents,

completed the investigation and filed the charge sheet against

the accused by conducting mahazar at Ex-P1 in the presence of

PW-1 and PW-2 who subscribed their signatures at Ex-P1(a) and

Ex-P1(b) and seizure was conducted under mahazar Ex-P4 by

PW-3. Lastly, the learned counsel submitted that the accused

and the victim PW-1 are related to each other wherein accused is

cousin brother of the victim and more so no ingredients has been

proved by the prosecution to prove the guilt of the accused for

the offence under section 448 I.P.C. for criminal trespass into the

house of the victim and abduction of the minor girl and so also

outraging her modesty in terms of sexual assault under section

354A IPC inclusive of offence under section 18 of POCSO Act. On

this premise, learned counsel for the respondent seeks for

dismissal of this appeal, being devoid of merit.

18. It is deemed appropriate for referring to section 18 of

the POCSO Act, 2012, wherein whoever attempts to commit any

offence punishable under this Act or to cause such an offence to

be committed, and in such attempt, does any act towards the

commission of the offence and more so, it is punishable

provision. Even though section 18 of the POCSO Act is a

punishable provision, domain is vested with the prosecution to

prove the guilt of the accused by facilitating worthwhile evidence

and also ingredients of offence under section 18 of POCSO Act,

2012, but nothing worthwhile has been facilitated by the

prosecution.

19. Whereas in the instant case, PW-1 -victim has been

subjected to examination and PW-2 who is the mother of the

victim has filed complaint at Ex-P3 and based upon her

complaint, criminal law was set into motion by recording FIR at

Ex-P10 by PW-3 being an I.O and subsequent to criminal law

setting into motion, the statement of the victim at Ex-P2 has

been recorded by the Judicial Magistrate of First Class and

nothing worthwhile has been elicited by the prosecution to prove

the guilt of the accused. However, the trial court on considering

the evidence of PWs-1 to 3 has rightly come to the conclusion

that no purpose would be served to proceed further for securing

the remaining witnesses, when it is the quality of evidence and

not quantity of evidence which has to be judged as per section

134 of Indian Evidence Act, 1872. In the instant case, the

prosecution has miserably failed to prove the guilt of the accused

as noticed. Therefore, for the aforesaid reasons and findings, we

are of the opinion that the appeal deserves to be rejected as

being devoid of merit. Accordingly, we proceed to pass the

following:

ORDER

The appeal preferred by the State under section 378(1)

and (3) Cr.P.C. is hereby rejected. Consequently, the judgment

of acquittal rendered by the I Addl. District & Sessions Court,

Ramanagara in Spl.S.C.No.74/2014 dated 29th April 2016 against

the respondent/accused is hereby confirmed. Bail bond, if any,

executed by the accused, the same shall stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE *mn/-