Karnataka High Court

Nagaraj @ Nagappa Shivappa ... vs The State Of Karnataka on 17 March, 2022

Bench: Suraj Govindaraj, J.M.Khazi

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 17TH DAY OF MARCH, 2022

                        PRESENT

   THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                          AND

          THE HON'BLE MS.JUSTICE J.M.KHAZI

          CRIMINAL APPEAL NO.100031/2020

BETWEEN:

NAGARAJ @ NAGAPPA SHIVAPPA
MULIKERI,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O BELAKERI VILLAGE,
TQ: BYADAGI,
DIST: HAVERI.
                                             ...APPELLANT
(BY SRI. SHRIHARSH A NEELOPANT, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
CIRCLE POLICE INSPECTOR,
BYADAGI POLICE STATION,
BYADAGI,
TQ: BYADAGI, DIST: HAVERI,
THROUGH STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
                                            ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 02.12.2019 PASSED IN
SPECIAL S.C.NO.50/2018 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, HAVERI,
                            2


THEREBY CONVICTING THE ACCUSED/APPELLANT TO UNDERGO
IMPRISONMENT FOR LIFE AND A FINE OF RS.50,000-00 AND IN
DEFAULT TO UNDERGO IMPRISONMENT FOR ONE MONTH FOR
THE OFFENCE PUNISHABLE UNDER SECTION 376 (i) (l) OF
INDIAN PENAL CODE (HEREINAFTER IN SHORT REFERRED TO
AS IPC) AND SECTION 4 AND 6 OF PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012 (HEREINAFTER IN SHORT
REFERRED TO AS POCSO) AND TO UNDERGO IMPRISONMENT
FOR THE PERIOD OF 5 YEARS AND TO PAY FINE OF
RS.5,000-00 IN DEFAULT TO PAY FINE FOR IMPRISONMENT
FOR A PERIOD OF 15 DAYS FOR THE OFFENCES PUNISHABLE
UNDER SECTION 8 OF POCSO ACT AND TO UNDERGO
IMPRISONMENT FOR THE PERIOD OF 3 YEARS AND FINE OF
RS.3,000-00   AND  IN   DEFAULT   TO   PAY   FINE  FOR
IMPRISONMENT FOR A PERIOD OF 10 DAYS FOR THE OFFENCES
PUNISHABLE UNDER SECTION 12 OF POCSO ACT, BY
ALLOWING THE PRESENT CRIMINAL APPEAL.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:


                      JUDGMENT

Being aggrieved by his conviction and sentence

for the offences punishable under Sections 376(1) (l)

of the Indian Penal Code, 1860 (hereinafter referred

to as "IPC" for short) and Section 4, 6, 8 and 12 of the

POCSO Act, appellant who is accused has come with

this appeal under Section 374(2) of Code of Criminal

Procedure, 1973 (hereinafter referred to as "CrPC" for

short).

2. Vide impugned judgment and order of

conviction, the trial Court has granted maximum

punishment of imprisonment for life and fine of

Rs.50,000/- for the offences punishable under Section

376(1) (l) and Section 4 and 6 of the POCSO Act

followed by lesser punishment for the other offences.

3. For the sake of convenience the parties are

referred to by their rank before the trial Court.

4. A charge sheet came to filed against the

accused alleging that on 02.02.2018 at 4.30 p.m.,

while the prosecutrix who was aged 14 years and a

mildly mentally retarded child was returning from the

Kirana shop of PW-3 Shambulingappa Agadi, accused

who was sitting in front of his house No.455/2 called

the prosecutrix inside his house saying that there are

rotis in the kitchen and she should serve him the

same. When the prosecutrix went inside of the house

of the accused and was searching for rotis in the

kitchen, accused followed her and dragged her inside

his bedroom and committed rape on her and thereby

committed the offences punishable under Sections

376(2) (i) (l) IPC and Section 4,6, 8 and 12 of the

POCSO Act, 2012.

5. Accused was arrested on 03.02.2018 and

since then he is in judicial custody.

6. To the charges levelled against him

accused pleaded not guilty and claimed trial.

7. In support of the prosecution case, in all 13

witnesses are examined as PWs.1 to 13, Exs.P1 to 18

and MOs.1 to 11 are marked.

8. During the course of his statement under

Section 313 of Cr.P.C., accused has denied the

incriminating evidence. He has not led any oral and

documentary evidence on his behalf.

9. We have heard the arguments of the

learned counsel representing the accused as well as

learned Special Public Prosecutor and perused the

records.

10. During the course of arguments, the

learned counsel representing the accused submits that

the impugned judgment and order of conviction and

sentence are contrary to the established principles of

law, facts, circumstances and probabilities of the case

and also the evidence placed on record. In the

absence of examining the material witnesses named in

the FIR and also in the examination-in-chief of the

prosecutrix viz., CW-10 Bhavani Barki and CW-11

Pavithra Barki, the prosecution has failed to establish

the allegations against the accused. The evidence

placed on record is highly insufficient to convict the

accused for the serious offences alleged against him.

For non production of the material witnesses by the

prosecution, adverse inference is required to be drawn

as held by the Hon'ble Supreme Court in AIR 1973

SC 5011.

10.1 The trial Court has overlooked the

contradictory statements made by the complainant

and victim in their complaint, statement recorded

under Section 164 Cr.P.C. While the complainant

and victim state that when the prosecutrix was

passing in front of the house of the accused, he

called her inside the house stating that there are

rotis and she should serve him the same. However,

in her statement under Section 164 Cr.P.C., the

prosecutrix has stated that the accused called the

prosecutrix inside his house saying that her father

is there. On the other hand, in his statement under

Section 161 Cr.P.C., the father of the prosecutrix

has stated that on 02.02.2018, the complainant

called him to the village and therefore, he came to

the village on 03.02.2018. He has not been

examined by the prosecution. The story put up by

Thuliya Kali Vs. State of Tamil Nadu

the prosecution is highly imaginary and cannot be

believed and based on such evidence, the

conviction cannot be based.

10.2 The evidence of the prosecutrix is not

supported and corroborated by any other

independent witnesses, including the medical

evidence which is negative for the allegations of

sexual assault on the prosecutrix. Even the FSL

report is also negative for the presence of sperms

on the clothes of the prosecutrix.

10.3 The grandparents of the prosecutrix were

selling liquor illegally and the accused had given

complaint against them afterwards they stopped

selling the liquor and this was the motive for the

complainant and others to falsely implicate the

accused. This aspect is not appreciated by the trial

Court.

10.4 Though during the course of her evidence,

the complainant has deposed that she lodged the

complaint on the date of the incident, the material

placed on record indicate that only after receipt of

the MNC report, the police visited the hospital and

recorded the complaint.

10.5 In the absence of corroboration from any

independent witnesses and also support by the

medical evidence, the conviction and sentence of

accused is liable to be set aside and prays to allow

the appeal.

11. On the other hand the learned SPP

supported the impugned judgment and order of

conviction and prays to dismiss the appeal.

12. It is the case of the prosecution that at the

time of incident, the prosecutrix was aged 14 years

and she had mild mental retardation. The accused has

not disputed the fact that at the time of incident

prosecutrix was a minor. PWs-1 to 4 and 6 have

spoken to about the prosecutrix being a minor and

also suffering from fits. Her mother i.e., PW-1 has

deposed that because of the said ailment, though she

was admitted to the school, the prosecutrix was not

regularly attending the school and she was also not

insisting upon her to either attend the school or to

work and prosecutrix used to stay in the house along

with her grand mother while she used to go to the

work. PW-10 is the Head Master of Government

Higher Primary School, Belakere. The evidence of this

witness prove that at the time of incident prosecutrix

was aged 14 years.

13. The evidence placed on record establishes

the fact that the father of the prosecutrix i.e, CW-7

Guddappa Barki, is a driver by profession and he

works at Bengaluru. Even though while medically

examining the prosecutrix, PW-9 Dr. Savitha Patil in

her report at Ex.P9 has certified that the prosecutrix is

suffering from mild mental retardness and behavioral

problem according to the psychiatric opinion, before

the Court, she has not deposed on this aspect.

However, the testimony of PWs-1 to 4 and 6 regarding

the behavioral problem of the prosecutrix and she

suffering from fits is not disputed by the defence.

Through their evidence, the prosecution has

established that at the time of incident, she was aged

about 14 years and prosecutrix was not a child of

normal mental capability and she was suffering from

fits.

14. So far as the actual incident is concerned,

there are no eyewitnesses and therefore the entire

evidence of the prosecution is based on the testimony

of PW-1 i.e., the prosecutrix. PW-2 is the mother of

the prosecutrix and her evidence is to the effect that

through the prosecutrix, she came to know about the

incident and lodged the complaint. According to the

prosecution, when the incident took place, the mother

of the prosecutirx had gone to do the coolie work and

therefore, immediately after the incident, prosecutrix

disclosed the said fact to her aunts viz., CW-10

Bhavani Barki and CW-11 Pavithra Barki. However,

these two witnesses are not examined by the

prosecution.

15. According to the prosecution, PW-4

Manjappa Barki, the uncle of the prosecutrix and PW-5

Anuradha Chikkanagouda, a neighbour of the

prosecutrix had sent the prosecutrix to the shop of

PW-3 Shambhulingappa Agadi to bring some articles

and while she was going to the said shop accused

called her and while she was returning from the shop,

she was sexually assaulted by the accused. Therefore,

in addition to the evidence of PW-1 and 2, the

testimony of PW-4 and 5 is also relevant. PW-11

Lakshmi Hunasemarada is the WPC and PW-13

Chidananda is the Investigating Officer. They have

deposed that while the prosecutrix was at the

hospital, PW-13 recorded her statement and it is

scribed by PW-11. They have deposed to this effect.

However, the statement of the prosecutrix so recorded

by them is not produced along with the charge sheet.

16. Even though PW-1 as well as PW-13 have

deposed with regard to the jurisdictional Magistrate

recording the statement of prosecutrix under Section

164 Cr.P.C and it is placed on record, for the reasons

best known, the prosecution has not got it marked. In

the light of these aspects, the evidence placed on

record by the prosecution is to be appreciated to

determine whether the charges levelled against the

accused are proved beyond all reasonable doubt.

17. Now coming to the actual incident, as

discussed earlier, there are no eyewitnesses to the

incident and therefore, the entire case of the

prosecution is based on the testimony of the

prosecutrix i.e., PW-1 and it is sought to be supported

by the testimony of PW-2 i.e., complainant who is the

mother of prosecutrix and other witnesses viz., PWs-3

to 5 who according to the prosecution immediately

before and after the incident have seen the

prosecutrix i.e., even before she narrated the incident

to her mother. Immediately before the incident, the

prosecutrix was returning from the shop of PW-3

Shambhulingappa Agadi after making a purchase of

shampoo sachet as well as arecanut and coffee

packet. Accused called her inside the house under the

pretext of requesting her to serve rotis and thereafter

committed sexual assault on her. During the course of

her evidence, prosecutrix had deposed that when the

incident took place she had gone to the shop to

purchase coffee powder and while she was returning

accused called her inside the house and committed

sexual assault on her.

18. According to the Investigating Officer PW-

13 Chidanand, on 03.02.2018 he recorded the

statement of the prosecutrix through CW-30 i.e., PW-

12. Even PW-12 has also deposed that on 03.02.2018

she recorded the statement of the prosecutrix at

Government Hospital, Bydagi as per the directions of

PW-13 and handed over the statement to him.

19. For reasons best known to him, the

Investigating Officer has not produced the statement

of prosecutrix which was recorded on 03.02.2018 i.e.,

immediately after the incident, when she was taken to

the hospital for medical examination and treatment. It

would have been best evidence to ascertain the truth

of the prosecution case.

20. It is also relevant to note that the

Investigating Officer has got the statements of

prosecutrix i.e., PW-1 and her mother i.e., PW-2

recorded under Section 164 Cr.P.C by the

jurisdictional Magistrate, Ranebennur. However, these

two statements are not marked during the course of

evidence of PWs-1 and 2. In her statement before the

JMFC, Ranebennur, the prosecutrix has stated that at

the time of incident, her father had come to the

village from Bengaluru and since he was in the habit

of roaming around the village, she went in search of

him and while she was so searching for him, accused

told her that her father is inside his house and when

she went inside, he committed sexual assault on her.

She has specifically stated that twice he committed

sexual intercourse and when he tried to commit

sexual intercourse third time, she pushed him away,

ran out and informed her aunt Pavithra about the

incident. According to this statement the first person

to be informed about the incident is her aunt Pavithra

Barki who is cited as CW-11. However, the

prosecution has not chosen to examine CW-11 before

the Court. This statement of prosecutrix given before

the JMFC., Ranebennur is contrary to her testimony

that accused called her inside the house under the

pretext of requesting to serve rotis to him. It is also

relevant to note that according to this statement, the

father of the prosecutrix was in the village, when the

incident took place. Even though the father of the

prosecutrix is examined by the Investigating Officer

and his statement was recorded and he is cited as

CW-7, he is not examined before the Court. In the

absence of production of statement of the prosecutrix

recorded by the Investigating Officer and also marking

her statement which is recorded by the JMFC., the

defence is handicapped in effectively cross-examining

the prosecutrix and eliciting the omissions and

contradictions going to the route of the prosecution

case.

21. According to the prosecution, immediately

prior to the incident, the prosecutrix was sent to the

shop of PW-3 Shambhulingappa Agadi by PW-4

Manjappa Barki, the uncle of the prosecutrix and PW-5

Anuradha Chikkanangouda to purchase shampoo,

arecanut and coffee packet and while she was

returning from the shop, the accused committed

sexual assault on her by inviting her inside the house.

In fact evidence of PWs-3 to 5 establish the fact that

immediately prior to the incident, she was sent to the

shop of PW-3 Shambhulingappa Agadi and in fact she

visited the said shop and purchased the said articles.

22. During the course of his evidence, PW-3

Shambhulingappa Agadi has deposed that on the date

of incident at around 4.30 p.m., prosecutrix visited his

shop and purchased a shampoo packet as well as

Vimal packet which appears to be arecanut packet and

later at 8.00 p.m. he came to know that accused has

committed sexual assault on her and she was taken to

the hospital and a complaint has been lodged. PW-4

Manjappa Barki has also deposed that on 02.02.2018,

he sent the prosecutrix to the shop of PW-3 to

purchase arecanut packet and in fact she returned

about 20 minutes late and handed him over the

arecanut packet. PW-5 Anuradha Chikkanagouda has

also deposed that on the date of incident at 4.30 p.m,

she sent prosecutrix to the shop of PW-3 to purchase

a shampoo packet and she turned late i.e., after about

25 minutes and handed over shampoo packet to her.

23. If at all the prosecutrix was sexually

assaulted while she was returning from the shop of

PW-3 after making purchase of shampoo as well as

the arecanut packet i.e., before she handed over the

said articles to the respective persons, she would have

certainly narrated the said fact to these two witnesses

or at least they would have disclosed the same. Even

if she did not narrate the said incident to them, at

least they would have observed her condition after

being sexually assaulted i.e., after having committed

sexual inter course twice and on the third attempt,

she pushed away the accused and ran out of his

house. If really the said incident had taken place, it is

doubtful whether she went to the houses of these two

persons i.e., PW-4 and 5 and handed them over the

articles which she purchased from the shop of PW-3

and left their respective houses and returned to her

house only to reveal the said fact to her mother after

she returned from work.

24. In fact in her statement before JMFC.,

Ranebennur, the prosecutrix has stated that

immediately after the incident, she divulged the said

fact to her aunt Pavithra Barki, i.e., CW-11. According

to the prosecutrix she is the person who first came to

know about the incident even before she revealed the

said fact to her mother. Therefore, CW-11 Pavithra

Barki is a material witness. For reasons best known to

prosecution, she has not been examined.

25. The defence has taken a specific contention

that earlier the grand parents of the prosecutrix were

selling arrack illegally and accused had given

complaint to the police and after lodging of the said

complaint, they stopped selling arrack and therefore,

accused has been falsely implicated in the case. In

fact during her cross-examination, PW-2 Nethra Barki,

mother of the prosecutrix and PW-4 Manjappa Barki

the uncle of the prosecutrix have admitted that after a

complaint was lodged, Biddadeppa Barki the grand

father of the prosecutrix and Chandrappa his brother

have stopped selling arrack. However, they have

denied that it was the accused who lodged complaint

and therefore, he has been falsely implicated.

However, they have not stated who was the person

who had lodged a complaint against them alleging the

illegal sale of arrack. This aspect puts the Courts on

guard to examine the prosecution case in the light of

the specific defence that the accused has been falsely

implicated to settle score regarding the complaint

given against the grandfather of prosecutrix alleging

the illegal sale of arrack.

26. Now coming to the medical evidence of

sexual assault on the prosecutrix. It is relevant to

note that immediately after the incident the

prosecutrix was taken to the hospital and on receipt of

the MLC report, the Investigating Officer has visited

the hospital and recorded the statement of the mother

of the prosecutrix in between 1-30 to 2-30 a.m. and

based on it, a case was registered at 2.45 a.m. of

03.02.2018. Therefore, at the immediately available

opportunity, the prosecutrix was taken to the hospital

and she was subjected to the medical examination.

Ex.P9 is the medical examination report of the

prosecutrix conducted in between 11.30 to 12.00 noon

of 03.02.2018. As per this report, no blood stains,

seminal stains or other discharge or foreign material

were found on her clothes. The Medical Officer has

also not found any scratches, bruises, lacerations or

other injuries. The mouth, fingernail and genitals

were also found normal. Though the Medical Officer

has found the hymen ruptured, the remaining genital

organs viz., Vagina, Fourchette, Perineum and Cervix

were found normal. The FSL report at Ex.P14 is also

negative with regard to the presence of seminal stains

and bloodstains on the clothing of the prosecutrix.

After receipt of the FSL report, the Medical Officer has

given her final opinion as per Ex.P15 that there was

no evidence of sexual assault on the prosecutrix. In

the absence of corroboration by the medical evidence

and in the light of the doubtful testimony of PWs-1

and 2 and also in view of the prosecution not putting

forth the best evidence available, in other words

suppressing the best evidence available to it and also

in the light of the defence taken by the accused that

since the grandfather of the prosecutrix was stopped

from selling arack illegally at his instance, he has been

falsely implicated, we are of the considered opinion

that the prosecution has miserably failed to prove the

charges levelled against the accused beyond a

reasonable doubt, especially when he is been

prosecuted for an offence which carries a maximum

punishment of life imprisonment and in fact accused

has been imposed with the maximum punishment of

life imprisonment. Therefore, we are of the considered

opinion that the impugned judgment and order of

conviction is not sustainable and the accused is

entitled for the benefit of acquittal and accordingly, we

proceed to pass the following:

ORDER

i) Crl.A.No.100031/2021 filed by accused is

allowed.

ii) The impugned judgment and order of

conviction dated 02.12.2019 passed in

Spl.S.C.No.50/2018 on the file of I Addl.

District and Sessions Judge and Special

Judge, Haveri for the offences punishable

under Sections 376(1) (l) of the IPC and

Section 4, 6, 8 and 12 of the POCSO Act, is

set aside.