State Of Karnataka vs Devaraju
2022 Latest Caselaw 96 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 4TH DAY OF JANUARY, 2022

                         PRESENT

              THE HON'BLE MR. JUSTICE B. VEERAPPA

                              AND

               THE HON'BLE Mrs. JUSTICE M.G. UMA

               CRIMINAL APPEAL NO.576 OF 2016

BETWEEN:

STATE OF KARNATAKA
CHIKKANAYAKANAHALLI POLICE STATION
REPRESENTED BY TUMKUR DISTRICT
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 572 214
                                              ... APPELLANT

(BY SRI: VIJAYKUMAR MAJAGE- ADDITIONAL SPP)

AND:

DEVARAJU
S/O RANGASWAMAIAH
AGED ABOUT 29 YEARS
FARMER, R/O HANUMANTHANAHALLI
KANIKERE HOBLI
C.N. HALLI TALUK
TUMKUR DISTRICT - 572 214
                                                  ... RESPONDENT

(BY SRI: KARTHIK YADAV V., ADVOCATE FOR
    SRI: S.K. VENKATA REDDY, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3)
CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
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AND ORDER DATED 19.09.2015, PASSED BY THE III ADDL.S.J. AND
SPL.COURT FOR TRIAL OF CASES UNDER SC/ST(POA)ACT, 1989 AT
TUMAKURU IN SPL.C.NO.369/2013 ACQUITTING THE ACCUSED -
RESPONDENT OF THE OFFENCES P/U/S 366(A), 342, 376 AND 343 OF
IPC AND U/S.4 OF POCSO ACT, 2012; SET ASIDE THE AFORESAID
JUDGMENT AND ORDER DATED 19.09.2015 PASSED BY THE III
ADDITIONAL SESSIONS JUDGE AND SPECIAL COURT FOR TRIAL OF
CASES UNDER SC/ST (POA) ACT, 1989 AT TUMAKURU IN
SPL.C.NO.369/2013 ACQUITING THE ACCUSED/RESPONDENT FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 366A, 342, 376 AND 343 OF
IPC AND UNDER SECTION 4 OF POCSO ACT, 2012; CONVICT AND
SENTENCE    THE   ACCUSED-RESPONDENT     FOR  THE   OFFENCES
PUNISHABLE UNDER SECTIONS 366A, 342, 376 AND 343 OF IPC AND
UNDER SECTION 4 OF POCSO ACT, 2012 IN ACCORDANCE WITH LAW.


     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS
DAY, M.G. UMA J., DELIVERED THE FOLLOWING:


                           JUDGMENT

[

The State is in appeal impugning the judgment of acquittal

dated 19.09.2015 passed in Spl.Case No.369 of 2013 on the file of

III Additional Sessions Judge and Special Court for trial of cases

under SC/ST (POA) Act, 1989 at Tumakuru (hereinafter referred to

as 'the Trial Court'), acquitting the accused for the offences

punishable under Sections 366A, 342, 376 and 343 of Indian Penal

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

Children from Sexual Offences Act (for short 'the POCSO Act').

2. Brief facts of the case are that, PW1 lodged the first

information against the accused as per Ex.P1 dated 10.10.2013

stating that the victim is his daughter and she had not returned

from the college from 05.10.2013. Even though he searched her

for 4 to 5 days, he could not trace her whereabouts. On the other

hand, he learnt that the accused had forcibly kidnapped her. The

victim was born on 04.11.1997 and aged 15 years 11 months.

Therefore, he requested the police to register the case against the

accused and to trace the victim. On the basis of this first

information, FIR as per Ex.P17 was registered for the offence

punishable under Section 366A of IPC and the investigation was

undertaken. During investigation, it was found that the accused

forcibly kidnapped, wrongfully confined the minor girl, married

against her will and committed forcible sexual assault. Therefore,

the charge sheet came to be filed.

3. The accused who appeared before the Trial Court

pleaded not guilty for the charges leveled against him and claimed

to be tried. The prosecution examined 15 witnesses, got marked

19 documents and identified 13 material objects in support of its

contention. The accused has denied all the incriminating materials

available on record in his statement recorded under Section 313 of

Cr.P.C., but has not chosen to lead any evidence in support of his

defence. However, Ex.D1 came to be marked during cross

examination of PW2. The Trial Court on the basis of these

materials on record came to the conclusion that the prosecution is

not successful in proving the guilt of the accused beyond reasonable

doubt. Therefore, the accused was acquitted as per the impugned

judgment passed by the Trial Court. Being aggrieved by the same,

the State has preferred this appeal on various grounds.

4. We have heard the learned counsel for the parties.

5. Sri.Vijaykumar Majage, learned Additional State Public

Prosecutor in support of his contention contended that the

impugned judgment of acquittal passed by the Trial Court is

perverse and illegal. The Trial Court has not appreciated the oral

and documentary evidence placed before it in a proper perspective.

Ex.P1 - the first information lodged by PW1 at initial stage is not

corroborated by the evidence of PW1-the informant and PW2 who is

the victim. He further contended that The Trial Court has ignored

the evidence of the material witnesses and also the circumstantial

evidence placed before the Court, including the medical evidence.

When the prosecution is successful in proving the guilt of the

accused beyond reasonable doubt, the Trial Court should have

convicted him for the above said offences. There is absolutely no

reason as to why the evidence of the victim girl has to be

disbelieved by the Trial Court. The impugned judgment is not a

reasoned one and it calls for interference by this Court. Hence, he

prays for allowing the appeal by setting aside the impugned

judgment of acquittal passed by the Trial Court and to convict the

accused for the above said offences.

6. Per Contra, Sri.V Karthik Yadav, learned counsel

representing the respondent-accused contended that the Trial Court

has properly appreciated the oral and documentary evidence placed

before it and has arrived at a right conclusion in acquitting the

accused. There is absolutely no material to prove the age of the

victim to contend that she is still a minor. Except the interested

testimony of PW2, there is absolutely no material to connect the

accused to the offence in question. Ex.D1 is the portion of

statement said to have been given by PW2. Therefore, her

contention cannot be believed. The medical evidence does not

support the case of prosecution in any manner. Under such

circumstances, the Trial Court was right in acquitting the accused.

The impugned judgment do not call for interference by this Court.

Hence, he prays for dismissal of the appeal as devoid of merits.

7. In view the rival contentions urged by the learned

counsel for the parties, the only point that arises for our

consideration is:

"Whether the State has made out any grounds for interference with the impugned judgment of acquittal passed by the Trial Court in acquitting the accused for the offences punishable under Sections 366A, 342, 376 and 343 of IPC and under Section 4 of POCSO Act?"

We have given our thoughtful consideration for the arguments

advanced by the learned counsel for the parties and the entire

records including the original records carefully.

8. It is the specific contention of the prosecution that the

victim was aged 16 years and she was born on 04.11.1997. PW1 -

the father in his evidence states that the victim girl was aged 15

years and 11 months, but pleaded his ignorance about her date of

birth. PW2 the victim states that she was born on 04.11.1997 and

was studying in first year PUC at the time of incident. Strangely,

the prosecution has not produced any material in support of its

contention that the victim was born on 04.11.1997 or that she was

aged 16 years at the time of incident. Ex.P2 is the medical

certificate dated 17.10.2013 issued by the Medical Officer,

Department of Forensic Medicine, Chikkanayakanahalli. As per this

document, the Medical Officer has advised to take opinion from the

Dentist and Radiologist to determine the age of victim girl, but no

such steps was taken by the Investigating Officer to place on record

the material to prove the age of victim as on the date of incident.

Apart from the interested say of PW2 that she was born on

04.11.1997, there is absolutely no other material to substantiate

the same.

9. It is pertinent to note that the prosecution has produced

Ex.P18 the school admission extract issued by the Head Master of

Government Higher Primary School of Ramanahalli, but it refers to

the accused and not the victim girl. The prosecution has also not

produced the school records to prove the age of the victim even

though it is its contention that the victim was studying in 1st year

PUC as on the date of incident. Under such circumstances, it has to

be concluded that the prosecution has failed to prove its contention

that the victim was minor at the date of incident. When the

accused has specifically denied that the victim was a minor, the

burden is on the prosecution to prove the same by placing cogent

material. Under such circumstances, we are of the opinion that the

prosecution has failed to prove these material fact.

10. It is the contention of the prosecution that the accused

had kidnapped the minor girl from the lawful custody of her

guardian. To prove this fact, the prosecution relies on the evidence

of PW2. She states that on the date of incident i.e., on 05.10.2013

she had been to college in the morning and came back to her

village by bus at 3.00 p.m. She was asked by the accused to come

to Chikkanayakanahalli and accordingly she came there. She found

that the accused was waiting for her. Thereafter, both of them

went to KB cross in a KSRTC bus and reached Majestic at 7.00 p.m.

Both of them went to the house of one Vijay who is the friend of the

accused, situated at Bommanahalli and stayed there. The accused

committed sexual assault on her on that night and on the next day

morning i.e., on 06.10.2013, both of them went to Chamundi

temple near Bengaluru and married in the presence of one Suresh

who is the friend of the accused, the priest and local persons.

Thereafter, they stayed in Bommanahalli in the house of

Vijaykumar. Witness also states that on the next day morning i.e.,

on 07.10.2013 both of them went to railway station and reached

Chamarajanagar and stayed in the house of one Guru who is the

friend of accused, in Killahalli. Several persons were there in that

house and again the accused committed sexual assault. Witness

states that the accused has repeatedly committed the offence till

15.10.2013. Thereafter, on 16.10.2013, the Women Police

Constable came and took her to Chikkanayakanahlli Police Station.

She was kept in Shelter home for 3 to 4 days. Thereafter, she was

taken to her house and that she had not narrated the incident to

her mother. She was medically examined by the doctor. She has

given her clothes to the doctor which are as per Mos.1 to 4.

11. This witness during cross examination by the learned

counsel for the accused denied the suggestion that her date of birth

is not 04.11.1997 as stated by her and that she was not studying in

first year PUC. She admitted that she has given her statement

before the police as per Ex.D1. Witness specifically states that as

on the date when she went along with the accused, she was waiting

for the accused and thereafter, both of them went to KB cross.

Witness stated that when she visited the house of the friend of the

accused, the inmates of the house had enquired about her. But she

had not complained against the accused to anybody. Witness

states that she has not raised her voice nor resisted the act of the

accused.

12. PWs.3, 4, 5 and 11 are examined to prove the marriage

of accused with the victim. None of these witnesses have

supported the case of prosecution. PWs.6, 7, 9 and 10 are

examined as mahazar witnesses to Exs.P6, 7 and 11. They have

also not supported the case of prosecution. If all these materials

are taken into consideration, it cannot be said that the victim was

kidnapped by the accused forcibly against her will, as contended by

the prosecution. Even though PW2 states that she was

accompanied by the accused, she also does not say that she was

forcibly kidnapped by the accused. Of course, if the prosecution

was successful in proving that PW2 was a minor aged 16 years, the

prosecution could have contended that the consent of the victim

cannot be a ground to acquit the accused. But in the present case

as discussed above, the prosecution has failed to prove the age of

the victim and under such circumstances, it is the bounden duty of

the prosecution to prove the kidnap of the victim by the accused.

There is absolutely no material to prove the same.

13. It is the contention of prosecution that the accused has

committed sexual assault on the victim girl repeatedly and thereby

committed the offence punishable under Section 376 of IPC and

under Section 4 of the POCSO Act. PW2 has stated in her evidence

that accused has committed sexual assault against her will

repeatedly from 05.10.2013 till 15.10.2013. It is her contention

that she stayed along with the accused in the house of the friend of

the accused, wherein other inmates were staying. Admittedly, she

never complained against the accused with anybody. Even after

she was brought back by the Women Police Constable on

16.10.2013, she has given her statement as per Ex.D1 and stated

that, herself and the accused were loving each other and she

voluntarily went with the accused and they had married.

14. It is pertinent to note that PW2 was subjected to

medical examination on 17.10.2013 and the medical report is as

per Ex.P2. As per this document, there were no external injuries on

the body and there were no sign of recent sexual intercourse. A

bald opinion is given by the medical officer stating that she might

have had sexual intercourse. PW8 - the Medical Officer who

examined the victim and issued Ex.P2. Nothing has been elicited

from this witness as to how she opined that she might have had

sexual intercourse, when she has specifically stated in Ex.P2 that

there were no signs of recent sexual intercourse. It is also

pertinent to refer to Ex.P19 - the FSL report relied on by the

prosecution. MOs.1 to 13 were sent for examination, but the report

states that the presence of seminal stains were not detected in item

Nos.2 to 7 and 10 to 13 and the presence of spermatozoa was not

detected in item No.8. It is stated that the contents of item No.1

was disintegrated and it was not fit for examination. Therefore,

Ex.P19 - the FSL report is also of no help to the prosecution. To

prove the commission of offence committed by the accused, the

evidence of PW8 and Ex.P2 are also not helpful.

15. The uncorroborated evidence of PW2 do not inspire

confidence in the mind of the Court. Even though PW2 states that

there were several persons who were in the house where she

stayed with the accused and where she married the accused, those

witnesses are not examined by the prosecution. Even though,

PWs.3 to 5 were examined, they have not supported the case of

prosecution.

16. In view of the discussions held above, we are of the

opinion that the prosecution is not successful in proving the guilt of

the accused for any of the offences alleged against him. We have

gone through the impugned judgment of acquittal passed by the

Trial Court. The Trial Court has considered all these facts and

circumstances and has arrived at a right conclusion and acquitted

the accused. We do not find any reason to interfere with the same.

Hence, we answer the above point in 'Negative'.

17. Apart from the merits of the case, it is relevant to state

at this stage that in pursuance of the notice issued, the complainant

and the victim were present before the Court on 02.12.2021. The

complainant submitted that the victim has been married to a third

person and he does not want the victim to be exposed to further

litigation as it is likely to harm or cause disharmony in the married

life of the victim. Both the victim as well as the complainant

submitted that they are not interested in participating in the

proceedings. The same was placed on record.

18. In view of the above, we pass the following:

ORDER

(i) The appeal is dismissed as devoid of any merits.

(ii) The impugned judgment of acquittal dated

19.09.2015 passed in Spl.C.No.369 of 2013 by

the learned III Additional Sessions Judge and

Special Court for trial of cases under

SC/ST(POA) Act, 1989 at Tumakuru, is hereby

confirmed.

Registry is directed to send back the Trial Court records with

a copy of this judgment.

Sd/-

JUDGE

Sd/-

JUDGE

*bgn/-