Karnataka High Court
Mr Suresh vs The State Of Karnataka on 7 June, 2022
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.543 OF 2019
BETWEEN:
1. MR. SURESH,
S/O. NARAYANAPPA,
AGED ABOUT 27 YEARS,
RESIDING AT SEETHARAMAPURA VILLAGE,
CHINTAMANI TALUK,
CHIKKABALLAPURA DISTRICT - 563 125.
2. MRS. SHILPA,
W/O. SURESH,
AGED ABOUT 26 YEARS,
RESIDING AT SEETHARAMAPURA VILLAGE,
CHINTAMANI TALUK,
CHIKKABALLAPURA DISTRICT-563 125. ... APPELLANTS
[BY SRI. M.SHASHIDHARA, ADVOCATE]
AND:
THE STATE OF KARNATAKA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BUILDING
BY BANGARPET POLICE STATION,
KOLAR DISTRICT-563 133. ... RESPONDENT
[BY SRI. R.D.RENUKARADHYA, HCGP]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
23.01.2019, PASSED BY THE II ADDL. SESSIONS JUDGE AT KOLAR
[SPECIAL COURT FOR POCSO] IN S.C. NO.7/2017 IN ITS
ENTIRETY, CONVICTING ACCUSED NO.1 FOR OFFENCES
PUNISHABLE UNDER SECTIONS 363, 376 OF IPC., R/W SECTION 9
2
OF PROHIBITION OF CHILD MARRIAGE ACT, 2006, SECTIONS 4
AND 6 OF POCSO ACT, 2012 AND CONVICTING THE ACCUSED
NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 363 OF IPC
R/W SECTION 9 OF PROHIBITION OF CHILD MARRIAGE ACT, 2006.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants in this appeal are accused Nos.1 and 2
in S.C. No.7/2017 on the file of the Court of II Additional
Sessions Judge, Kolar [Special Court for POCSO].
2. This appeal is preferred against the Judgment
and Order dated 23.01.2019, convicting appellant No.1 for
offence punishable under Section 363 of IPC r/w. 9 of the
Prohibition of Child Marriage Act, 2006, Section 376 of IPC
and Sections 4 and 6 of the Protection of Children from
Sexual Offences Act, 2012 [hereinafter referred to as
'POCSO Act' for short] and accused No.2 for offence
punishable under Sections 363 r/w. 9 of the Prohibition of
Child Marriage Act, 2006.
3. Brief facts of the case are that, accused Nos.1
and 2 are the husband and wife. The victim/P.W.2 is the
daughter of first informant/P.W.1 and she is the younger
sister of accused No.2. During the subsistence of his
marriage with accused No.2, accused No.1 intended to
marry the victim/P.W.2, a minor, aged about 17 years. On
03.08.2006, both the accused by inducing P.W.2 took her
from Seetharamapura to Dharmasthala, where accused
No.1 tied 'Thali' to her. She was then kept in the house of
one Papamma [P.W.4] at Benganuru village. Again on
12.08.2016, at 2.00 p.m., the accused persons kidnapped
P.W.2 with intent that she may be forced to or seduced to
illicit intercourse with accused No.1 and took her to
B.Kothakota village in Andhra Pradesh and took a rented
house belonging to one Adinarayana [P.W.18] wherein,
they stayed from 12.09.2016 to 15.09.2016, during which
period accused No.1 committed forcible sexual intercourse
with P.W.2 against her will.
4. Complaint is lodged by victim's father-P.W.1.
The complaint is marked as Ex.P1, wherein he has stated
that his first daughter i.e., accused No.2 was given in
marriage to accused No.1 about 8 years prior to the
incident and they have two children. Accused No.1 had
requested him to give his 4th daughter i.e., the victim in
marriage to him, but he had refused. Thereafter, accused
No.1 threatened him saying that he will kidnap his
daughter and marry her. Therefore, he had brought her to
the house of his sister in Bangarpet. On 12.09.2016 at
about 12 noon, accused No.1 went to his sister's house
along with his wife i.e, accused No.2 and kidnapped his
minor daughter.
5. The complaint is lodged on 27.09.2016 i.e.,
after 15 days from the date of alleged incident. P.W.1 has
stated that on the very day his daughter was kidnapped, he
was informed by his sister's son Shivappa [P.W.3] about
the incident and thereafter they searched for her daughter
for 15 days and since she was not traced, complaint was
lodged on 27.09.2016.
6. Charges were framed against accused Nos.1
and 2 for offences punishable under Section 366-A of IPC
r/w Section 9 of the Prohibition of Child Marriage Act, 2006
and against accused No.1 for offence punishable under
Section 376 of IPC and Sections 4 and 6 of the POCSO Act.
7. In order to bring home the guilt of the accused,
prosecution got examined P.Ws.1 to 18 and got marked the
documents Exs.P1 to 22 and M.Os.1 to 11.
8. Amongst the prosecution witnesses, P.Ws.1 to
5, 7, 8, 12 and 18 have totally turned hostile and they
have not supported the case of prosecution. The first
informant i.e, victim's father who is examined as P.W.1
has denied the complaint averments and denied the
accused kidnapping his daughter and accused No.1
marrying her. He has not corroborated the complaint
version. Even the victim who is examined as P.W.2 has
also turned hostile and she has categorically denied the
contents of her statement which are marked as Exs.P2 and
3.
9. P.Ws.3 and 4 viz., sister's son and sister of
P.W.1 respectively have also denied that the accused
kidnapped the victim girl and brought to their house etc.
10. P.W.18 who is said to be the owner of the house
in B.Kothakota village in Andhra Pradesh where accused
No.1 is said to have taken the house on rent and stayed
along with the victim girl from 12.09.2016 to 15.09.2016
and committed aggravated penetrative sexual assault on
her, has also turned hostile.
11. The evidence of the above material witnesses
do not help the prosecution case in any way to establish
the guilt of the accused. There is nothing elicited in their
cross-examination in support of the prosecution.
12. The learned High Court Government Pleader has
contended that the victim was subjected to medical
examination by P.W.6 and the report-Ex.P11 clearly
discloses that the victim was pregnant at the time of her
examination. He submits that the victim has also given
statement before the doctor which also inculpate the
accused. He submits that the prosecution has got marked
Ex.P15 i.e, age certificate of the victim, which shows that
the victim was a minor at the time of incident. He
contends that even if the victim and other prosecution
witnesses have not supported the case, the above
documents and the evidence of the doctor as well as the
evidence of P.W.17-CWC Member, who recorded the
statement of the victim as per Ex.P3 are sufficient to
establish the guilt of the accused.
13. The trial Court has taken into consideration the
evidence of P.W.6 i.e., the doctor who examined the victim
on 17.10.2016 and issued her opinion as per Exs.P9 and
11. P.W.6 has stated that she conducted the pregnancy
test and since it was positive, scanning and blood test were
done and even as per the said reports, the victim found to
be pregnant. She has stated that from the above reports,
it cannot be ruled out the possibility of sexual intercourse
committed against the victim.
14. The learned counsel for the appellants has
contended that even though P.W.6 has deposed that she
has conducted medical examination and found the victim
pregnant, there is no authentic documents placed on
record to show that the victim was pregnant as on the date
of her examination. As rightly contended by the learned
counsel for the appellants, though P.W.6 has stated that
blood test and scanning were done and as per the said
reports, the victim was found to be pregnant, the said
reports are not marked in evidence. Further, it is not the
case of prosecution that on account of the act committed
by the accused, victim became pregnant. Even there is no
charge framed to that effect.
15. Another aspect is that the trial Court has taken
into consideration the evidence given by P.W.6-doctor with
regard to the age of victim. In the cross-examination,
P.W.6 has denied the suggestion put to her that the victim
was aged about 19 years. Further, the certificate issued by
P.W.13 i.e., Head Master of the school is marked as
Ex.P15, which is taken into consideration for holding that
the victim was a minor at the time of incident.
16. Firstly, the first informant i.e., the father of the
victim as well as the victim have completely denied the
prosecution case and they have denied the entire
allegations made against the accused persons. They have
categorically stated that the accused have neither
kidnapped the victim nor accused No.1 kept her in the
house of P.W.4 or P.W.18 and committed penetrative
sexual assault against her will. In so far as the evidence of
P.W.6 is concerned with regard to the age of the victim, it
is not forthcoming as to on what basis, age of the victim is
estimated as 16 years by P.W.6. There is no radiological or
dental examination conducted. Ex.P15 is the birth
certificate issued by P.W.13 i.e, Head Master of the School
stating that the date of birth of the victim is 13.01.2000.
He has stated that the date of birth is furnished on the
basis of the school records. However, neither the school
records nor any other authenticated documents which
would establish the age of the victim has been marked in
evidence.
17. For the afore-mentioned reasons, it cannot be
held that the prosecution has established the guilt of the
accused beyond reasonable doubt. The trial Court on a
wrong appraisal of the evidence and material on record,
has convicted the accused. The impugned Judgment and
Order passed by the trial Court cannot be held to be in
accordance with law. Hence, the appeal deserves to be
allowed. Accordingly, the following:
ORDER
Appeal is allowed.
The Judgment and Order dated 23.01.2019 passed by
the learned II Additional Sessions Judge at Kolar [Special
Court for POCSO] in S.C. No.7/2017 is hereby set aside.
Accused Nos.1 and 2 are acquitted of the offences for
which they have been convicted by the trial Court.
Accused No.1 who is in judicial custody is ordered to be
released, if he is not required in any other case.
The bail bond in respect of accused No.2 is hereby
discharged.
If any fine amount is deposited, the same shall be
refunded to the accused.
The order shall be communicated to the concerned
jail authority.
SD/-
JUDGE
Ksm*
