State Of Karnataka vs Somanath Bhairappa Bagali
2022 Latest Caselaw 5320 Kant

                            1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 24TH DAY OF MARCH 2022

                         PRESENT

       THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                           AND

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


                   Crl.A.No.100019/2018
BETWEEN:

STATE OF KARNATAKA,
REP.BY THE POLICE INSPECTOR,
KATAKOL POLICE STATION,
BELAGAVI DISTRICT,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
                                              .. APPELLANT
(BY SRI.V.M.BANAKAR, ADDL.SPP)

AND:

SOMANATH BHAIRAPPA BAGALI,
AGE: 28 YEARS, OCC: DANCE TEACHER,
R/O LOHAGANVI TALUK, DIST: BIJAPUR.
                                             .. RESPONDENT
(BY SRI.A.A.MULWADMATH, ADV.)


      THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C.SEEKING TO GRANT LEAVE TO APPEAL AND TO SET ASIDE
THE    JUDGMENT    AND   ORDER    OF   ACQUITTAL   DATED
04.10.2016PASED BY THE III ADDL. DISTRICT AND SESSIONS &
SPECIAL JUDGE, BELAGAVI (POCSO) IN S.C.NO.313/2013 AND
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 366(A), 376 AND 506 OF IPC AND
UNDER SECTIONS 4 AND 6 OF POCSO ACT.
                                   2




     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT   THIS   DAY,   RAJENDRA     BADAMIKAR,   J.
DELIVERED THE FOLLOWING:

                              JUDGMENT

The State has filed this appeal challenging the

judgment of acquittal dated 04.10.2016 passed by the III

Additional District & Sessions & Special Judge, Belagavi

(POCSO) and (SC/ST (POA) in S.C.No.313/2013 whereby

the learned Special Judge has acquitted the

accused/respondent herein for the offences punishable

under Sections 366(A), 376 and 506 and Sections 4 and

6 of Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as 'POCSO Act' for short).

2. For the sake of convenience, parties shall be

referred with the original ranks occupied by them before

the trial court.

3. The brief factual matrix leading to the case

are as under:

That the victim girl was aged about 13 years and

was studying in 7th standard. That the

accused/respondent herein was her dance teacher and

taking advantage of such a situation on 21.04.2013 at

10.00 a.m., the accused induced the victim to

accompany him, who was staying in the house of C.W.8

Ratnavva by falsely representing that there is a dance

programme at Bijapur and thereby having knowledge

that the victim was a minor kidnapped her out of lawful

guardianship of her parents. It is also alleged that from

21.04.2013 to 25.04.2013 at different places, such as,

Baliga village, Mucchandi village and again Baliga village,

he had forcible sexual intercourse with the victim girl

against her will and under the false promise of marriage

having knowledge that she was a minor. According to the

prosecution, in between when the victim girl tried to

contact her parents, he threatened her by giving life

threat. Subsequently, the father of the victim girl has

lodged the complaint in this regard and having

knowledge of the complaint, the accused has left the

victim girl in Zalki cross by paying Rs.300/- and from

there, the victim girl came to Mudhol in a bus and

contacted her father who came to Mudhol and took the

victim girl to his place. Thereafter, she was taken to the

police station wherein the complaint came to be lodged in

crime No.138/2013 for the offence punishable under

Section 366(A) of IPC.

4. Further, during the course of investigation, it

is revealed that accused has committed aggravated

sexual assault on the victim girl and as such, after

completing the investigation, the charge sheet was laid

for the offence punishable under Sections 366(A), 376,

506 of IPC r/w Section 4 and 6 of POCSO Act. The

accused was later arrested and was remanded to judicial

custody. The Special Judge has taken cognizance of the

offences alleged considering sufficient material placed by

the prosecution. Copies of the prosecution papers were

also furnished to the accused, who was represented by

defence counsel. Then charge was framed against the

accused for the offences punishable under Sections 363,

366, 376(2)(f), 376(2)(k), 376(2)(n), 376(2)(i), 376 r/w

Section 417, 506 of IPC and Sections 4 and 6 of POCSO

Act and the same was read over and explained to the

accused and accused pleaded not guilty and claimed to

be tried.

5. To prove the guilt of the accused, prosecution

has examined in all 13 witnesses as P.Ws.1 to 13 and

also placed reliance on 22 documents marked at Exs.P1

to P22 and 14 material objects at M.Os.1 to 14. During

the cross-examination of P.W.4, portion of the statement

recorded under Section 161 by the investigating officer is

got marked as Ex.D1 by the defence counsel.

6. After conclusion of the evidence of the

prosecution, the statement of the accused under Section

313 of Cr.P.C. is recorded to enable him to explain the

incriminating evidence appearing against him in the case

of the prosecution. The case of accused is of total denial.

However, it is stated that he and victim girl were in love

with each other and intended to marry each other, but

there was no physical relationship between them.

However, he did not choose to lead any oral or other

documentary evidence in support of his defence.

7. After having heard the arguments advanced

by the public prosecutor as well as defence counsel, the

learned Special Judge came to the conclusion that

prosecution has failed to bring home the guilt of the

accused beyond all reasonable doubt including the age of

the victim that she is minor and thereby acquitted the

accused.

8. Being aggrieved by this judgment of acquittal,

the State has filed this appeal.

9. Learned Additional SPP would contend that the

victim is minor and this is corroborated by Exs.P20 and

21 and when she is aged about 13 years, her consent

becomes irrelevant. He would also contend that accused

took the victim girl under the guise of dance competition

as he was a dance teacher and committed aggravated

sexual assault on her. He would further contend that

observations of the trial court that victim girl has

voluntarily accompanied the accused has no relevancy in

view of the fact that victim girl is a minor and her

consent cannot be taken into consideration. He would

also contend that the evidence of the complainant is

corroborated by the evidence of the victim girl who is

examined as P.W.4. He would further contend that under

Section 35 of the Indian Evidence Act, 1872, the entries

in public records are admissible and as such, the entries

in Ex.P21 are admissible regarding date of birth of the

victim girl which was entered at an undisputed point of

time. Hence, he would contend that the evidence clearly

discloses that the victim girl was found in the custody of

the accused and the evidence of the victim girl does

establish that there was sexual assault on her and as

such, he would contend that the judgment of the trial

court is erroneous and perverse, which has resulted in

miscarriage of justice. As such, he sought for allowing

the appeal by setting aside the judgment of acquittal by

convicting the accused/respondent herein.

10. Per contra, learned counsel for the

respondent/accused would support the judgment of the

trial court contending that age of the victim girl itself is a

doubtful aspect. He would also invite the attention of the

court that radiological report discloses her age as

between 16-18 years and the age in Ex.P21 is entirely

different, while P.W.1 admitted in the cross-examination

that his daughter was born in 1995 and the date was put

only on assumption. He would also contend that on

perusal of statement of the victim under Section 164 of

Cr.P.C., it is evident that it is not corroborated with her

evidence before the court, as life threat by using knife is

not a case made out. He would further contend that

provision of Section 35 of the Indian Evidence Act cannot

be made applicable in view of the fact that P.W.1 himself

has admitted that entries were made on the basis of

presumption in the school by endorsing the age of the

victim. He would contend that all the three reports

regarding age of the victim are inconsistent and as such,

the prosecution ought to have secured scientific evidence

to ascertain the exact age of the victim girl and the

prosecution has failed to do so. Hence, he would contend

that the victim is not a minor and other evidence

discloses that victim has voluntarily accompanied the

accused and she is a consenting party. As such, he would

submit that the trial court has considered all these

aspects in detail and arrived at a just decision and as

such, he would seek for dismissal of the appeal by

confirming the judgment of acquittal passed by the trial

court.

11. We have heard both the counsels at length

and we have given our anxious consideration to the

arguments advanced as well as documentary evidence

produced before us in the form of records of the trial

court.

12. Now the following point would arise for our

consideration:

"Whether the judgment of acquittal passed by the trial court is perverse,

erroneous and suffers from infirmity so as to call for any interference by this court?"

13. The prosecution has charge sheeted the

accused for the offences punishable under Sections 363,

366, 376(2)(f), 376(2)(k), 376(2)(n), 376(2)(i), 376 r/w

Section 417, 506 of IPC and Sections 4 and 6 of POCSO

Act.

14. P.W.1-Mahantesh D.Yadwadmath is the

complainant and father of the victim. In his evidence, he

deposed that accused is a dance teacher of his daughter

and he is working in Bengaluru and on 21.04.2013 at

2.00 p.m. he received a telephone call from his wife

stating that his daughter victim girl had been to

Chippalkatti fair and did not return. Immediately, he

returned to the Kunnal village on the next day and on

enquiry, it is revealed that accused/dance teacher was

also found missing. He further deposed that though he

intended to give a complaint immediately, the elders

have advised him to wait for few days as the reputation

of his daughter and family is involved. As such, after

waiting for two days, on 25.04.2013 he lodged a

complaint as per Ex.P1 regarding his daughter is being

found missing and kidnapped by the accused and FIR

came to be issued for the offence punishable under

Section 366A of IPC. His further evidence discloses that

on 23rd and 24th of April, 2013, his daughter contacted

him over telephone asserting that she is quite ok. On

27.04.2013 his daughter called him from Mudhol and he

went to Mudhol bus stand and secured her and then she

was produced before the police wherein panchanama and

other proceedings have taken place. In his cross-

examination also, he has specifically asserted that on

23rd and 24th his daughter contacted him, but this fact

was not revealed in the complaint. He deposed in his

further cross-examination that his daughter was born in

January, 1995. He further admitted that his daughter

was admitted to the school after long delay. He has also

admitted that he has not obtained birth certificate of his

daughter and the date of birth of his daughter is

02.07.2000 was given by him. He denied the suggestion

that victim girl is aged about 19 years. However, his

evidence does establish that there is some confusion

regarding age of the victim girl. He admits that date of

birth was not entered in concerned records and he has

given information while admitting the victim girl to the

school about her age.

15. P.Ws.2 and 3 are the mahazar witnesses and

their evidence does not have much relevance in this

case.

16. P.W.4 is the material witness who is the victim

girl. She deposed that about two years back she was

staying in Kunnal village in the house of her maternal

grandmother and her father used to visit her occasionally

and she was studying 7th standard. She has further

deposed that on 21.04.2013 the accused came to her

house at 10.00 a.m. and took her on the ground that

there is a dance competition in Bijapur. She has further

stated that from Kunnal village they went to Yadwad

village, from there to Mudhol and from Mudhol to

Chadchan and then to Baliga village in the evening and

halted in the house of aunt of the accused. She further

deposed that they went to Ravalgundi-Muchhandi village

and stayed in the house of one Ravi from 22.04.2013 to

25.04.2013. On 26.04.2013, they returned to Baliga

village and they stayed at night. She has also deposed

that in all these three places, the accused has committed

sexual assault on her and on 27.04.2013 when it is

revealed that her father has lodged a complaint, accused

paid her Rs.300/- with a direction to go to village and she

came to Mudhol from Baliga village and then contacted

her father on mobile and her father took her to Kunnal

village. Her evidence completely silent regarding the act

of criminal intimidation. In her examination-in-chief itself

she has specifically asserted that her date of birth is

17.07.2000, but as per the prosecution and her date of

birth as per Ex.P21 is 02.07.2000. This discloses that

even she does not know her date of birth. She has also

admitted that she was produced before the Magistrate

wherein her statement came to be recorded as per P12.

She has also specifically stated that she voluntarily

accompanied the accused in order to attend a dance

programme. In the cross-examination, the victim has

admitted that from the beginning she and accused were

exchanging mobile messages. She is unable to say her

mobile number, but she specifically states the mobile

number of the accused as 9902990867. This conduct of

the victim discloses that she was regularly in

conversation with the accused. Further, her cross-

examination also reveals that she was in love with the

accused. Her cross-examination also discloses that she

had not given any statement as per Ex.D1 before the

investigating officer. She claims that from 21.04.2013 to

27.04.2013, her father called her on mobile regularly,

but she switched off the mobile. She claimed that in this

period, she had talked to her parents only once. She also

admitted that accused did not threatened her at any

point of time. She did not either admit or disputed

regarding statement given before the investigating officer

on 30.04.2013. In her earlier statement, she has

admitted that she has not given any statement regarding

accused committing sexual assault on her. However, she

claimed that in subsequent statements she has stated so.

She has also admitted that on 28.04.2013, she has given

a statement that accused has not committed any sexual

assault against her.

17. Apart from that, in further cross-examination

she deposed that while she was giving statement under

Section 164 of Cr.P.C., her grandmother and police were

present. Though she claims that she has given statement

voluntarily, but that statement is inconsistent regarding

offence under Section 506 of IPC. She admits that she

was in love with the accused and both were intended to

marry each other. The evidence of this witness discloses

that she was a consenting party.

18. P.W.5 is only author of the complaint and his

evidence has not much relevance.

19. P.W.6 posed to be one of the star witness in

the instant case. In his evidence, he deposed that while

he was proceeding on his motorcycle in the cross road,

accused and victim girl met him and disclosed before him

that they were proceeding to Mudhol for gathering and

hence, he picked them on his motorcycle and dropped

them in Yadwad bus stand. His evidence discloses that he

picked both the accused and the victim girl at a same

time and dropped them. But the cross-examination of

P.W.4 discloses different thing. She claims that they went

independently to Yadwad and upto Yadwad, they did not

travel together. Hence, the evidence of P.W.6 in this

regard creates doubt in the mind of the court.

20. P.W.7-Dr.Girish B.Yadur, CMO BIMS Hospital,

Belagavi and he deposed that on 28.04.2013, the victim

girl was produced before him and as per the dentist

report her age is between 13-14 years and as per

radiological report her age is between 16-18 years and

her old hymen was torned. He stated that there was no

recent sexual intercourse, but the victim might have

exposed to an act like that of sexual intercourse. But his

evidence does not establish that she had undergone

sexual intercourse. He has also deposed that he has not

personally examined the victim girl and his report under

Ex.P13 is based as per the experts opinion. He has also

admitted in Ex.P13 that there is no reference that hymen

was ruptured and he claims that it was referred in

summary sheet, but summary sheet was not produced

before this court. As such, his evidence regarding the

victim undergone any sexual assault becomes doubtful

aspect.

21. P.W.12 is the partial investigating officer who

was working as ASI in Katkol police station during the

relevant period. He admits that the victim has given

statement that accused did not take her under the guise

of marrying her, but he did not commit any sexual

assault on her. When a question was posed to him that,

when victim has denied sexual assault, the reason for

sending her for medical examination, he claims that

victim might not be giving true version and therefore, he

sent for medical examination. He claims that on

30.04.2013 again her statement was recorded on the

basis of medical report. But he further admits that on

30.04.2013 when further statement of the victim was

recorded, the medical report was not yet received and it

was received on 11.06.2013 and that clearly discloses

that statement of the victim was created subsequently to

suit the claim. He has also admitted in his cross-

examination that they have not made any attempt to

obtain birth certificate from Tahasildar and also admitted

that original records were not secured.

22. P.W.13-M.Pandurangayya, is the D.S.P. who

was working as CPI in Ramdurg, who has completed

further investigation and submitted the charge sheet. In

his cross-examination, he admitted that as per

radiological report, the age of the victim was 16-18 years

and considering this aspect, he did not take any steps to

ascertain the specific/exact age of the victim girl by

sending her to experts opinion. He has also admitted that

he has not even obtained any original school records in

this regard. He admitted that in FSL report, it is

mentioned that there is no intercourse and he denied

that he has recorded further statement of the victim.

23. It is to be noted herein that, accused and

victim girl were in love with each other. The evidence

also discloses that accused and victim went from Kunnal

to Yadwad, Mudhol and other places. It is also not under

serious dispute that accused was all along with the victim

girl from 21.04.2013 to 27.04.2013. The evidence of the

victim girl is inconsistent and contrary which creates

doubt regarding genuineness of the case of the

prosecution.

24. The entire case of the prosecution is based on

the age of the victim. Further, as per Ex.P12, i.e., the

statement of the victim girl recorded under Section

164(5) of Cr.P.C., on 21.04.2013 at 10.00 a.m. the

accused took her from her house under the guise of

dance programme in Bijapur and they went to Baliga

village, but in her statement under Section 161 of

Cr.P.C., the victim claims that, on that day, she had been

to Chippalkattti fair and at 12.00 noon, from there, the

accused enticed her and took her to Baliga village under

the guise of dance programme. These two stands as to

whether the victim girl went from the house or from

Chippalkatti fair is not at all certain. Apart from that,

victim has denied of giving statement as per Ex.D1 in

respect of she returning to her house collecting her dress

material, which is the case made out by the prosecution.

In the instant case, to prove that the victim has

undergone sexual assault, the doctor who has examined

the victim should have been examined by the

prosecution, but the prosecution instead of examining

the said doctor, placed reliance on the evidence of P.W.7-

Dr.Girish who has not physically examined the victim, but

he claims that his report is based on the report of

gynecologist and other experts.

25. Considering these aspects, it is evident that

the victim was in love with the accused and she

voluntarily accompanied him. However, whether there

was any sexual assault or not is also a doubtful aspect.

Apart from that, even her conduct discloses that sexual

assault if any, was with her consent, as she has not

resisted. However, all these aspects become relevant

only in case the prosecution is able to prove the age of

the victim as less than 18 years.

26. In this regard, the evidence of the

complainant who is the father of the victim girl is very

much relevant. He deposed that, his daughter was born

in January, 1995 and later on he claims that while

admitting her to the school, he has given date of birth as

02.07.2000. However, the victim girl herself claims that

she was born on 17.07.2000. Hence, it is evident that

date of birth entry in school record as per Exs.P20 and 21

relied on by the prosecution is only on the basis of the

statement said to have been given by P.W.1. But he

himself admits that his daughter was born in 1995. He

has also admitted that his daughter was admitted to the

school belatedly. Contrary to this, radiological report

discloses the age of the victim girl is between 16-18

years, but the dental report discloses that her age is

between 13-14 years. All these are inconsistent and

contrary to each other. Considering the admission given

by the complainant himself, it is evident that he has

quoted date of birth of the victim girl while admitting her

to the school on assumption only. These inconsistent

statements are fatal to the case of the prosecution.

27. In this context, learned counsel for the

respondent/accused has placed reliance on a decision of

the Hon'ble Apex Court in the case of Alamelu and

Another vs State Represented by Inspector of

Police reported in (2011) 2 SCC 385 and invited the

attention of this court to the observations made at

paragraphs 39 and 40, which reads as under:

"39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5.

40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."

28. Hence, in view of the observations of the

Hon'ble Apex Court, it is evident that, though Exs.P20

and 21 are admissible in evidence under Section 35 of

the Indian Evident Act, the admissibility of the document

would not be much evidentiary value to prove the age of

the girl in the absence of material on the basis of which

the age is recorded. Admittedly, in the instant case,

P.W.1 himself has admitted that he has declared date of

birth while admitting the victim to the school and further

admitted that she was admitted to the school belatedly.

When this is the evidence led by the prosecution, it was

duty of the investigating officer to collect material

evidence as to on what basis the date of entry was made

in the school records, but no attempt was made in this

regard. The radiological report and dental report and

claim of the victim girl as well as P.W.1-complaiant

himself are inconsistent and contrary to each other.

Under such circumstances, the court cannot rely on

Exs.P20 and 21 and their admissibility has no evidentiary

value under Section 35 of the Indian Evidence Act, in

view of anomalies referred to above.

29. Apart from that, in the case of Jaya Mala v.

Govt. of J & K reported in 1982 SCC (Cri) 502, the

Hon'ble Apex Court has observed that, one can take

judicial notice that the margin of error in age ascertained

by radiological examination is two years on either side.

Further, in the case of Birad Mal Singhvi v. Anand

Purohit reported in 1988 Supp. SCC 604, the Hon'ble

Apex Court in para 14 has observed that, date of birth

mentioned in the scholars' register has no evidentiary

value unless the person who made the entry or who gave

the date of birth is examined. In the instant case, though

P.W.1 was examined in this regard, his evidence

discloses that his daughter was born in 1995, which is

against the entries made in the school register as per

Exs.P20 and 21. As such, Exs.P20 and 21 do not have

any evidentiary value and when the prosecution has

failed to establish that the victim was minor, question of

applying the provisions of POCSO Act as well as offence

of kidnapping and sexual assault does not arise at all

since evidence discloses that victim has voluntarily

accompanied the accused and her consent is also

manifest as she was in love with the accused.

30. Apart from that, it is also settled law that,

when two views are possible, the view taken by the trial

court shall not be disturbed by the High Court and view

favourable to the accused shall prevail as observed in the

case of M. R. Purushotham v. State of Karnataka

reported in 2015 SC (Criminal) 139, in the case of

Muralidhar @ Gidda and another vs. State of

Karnataka reported in AIR 2014 SC 2200 and in the case

of State of Kerala Vs. C.P.Rao reported in AIR 2012 SC

2879.

31. Learned counsel for the respondent has also

placed reliance on the decisions of the Hon'ble Apex

Court in the case of Ghurey Lal vs. State of U.P.

reported in (2008) 10 SCC 450 and in the case of

Sanwat Singh & Others vs. State of Rajasthan

reported in 1961 AIR 715.

32. Considering all these facts and circumstances,

it is evident that victim was not minor as on the date of

the incident and she was a major and as such, she was a

consenting party. The trial court has considered all these

aspects in proper perspective and analyzed oral and

documentary evidence in detail. The judgment of the trial

court does not suffer from any perversity or illegality so

as to call for any interference by this court. Under these

circumstances, the appeal being devoid of any merit

needs to be dismissed. Accordingly, we answer the point

under consideration in the negative and proceed to pass

the following:

ORDER

The appeal is dismissed by confirming the judgment

of acquittal dated 04.10.2016 passed by the III

Additional District and Sessions & Special Judge, Belagavi

(POCSO) and (SC/ST (POA) in S.C.No.313/2013.

Sd/-

JUDGE

Sd/-

JUDGE MBS/-