Karnataka High Court
Mallikarjun vs The State Of Karnataka on 23 August, 2023
Bench: Mohammad Nawaz Mnj, Rrkj
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200088/2018
BETWEEN:
MALLIKARJUN S/O SHIVAPPA KERI,
AGE: 28 YEARS, OCC: DRIVER,
R/O. DEVANGAON VILLAGE, TQ.: SINDAGI,
DIST: VIJAYAPURA-586202.
...APPELLANT
(BY SRI.R.S.LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH PSI., AFZALPUR PS.
Digitally signed
by SOMANATH
PENTAPPA
MITTE REP. BY THE ADDL. STATE PUBLIC PROSECUTOR,
Location: HIGH
COURT OF HIGH COURT OF KARNATAKA,
KARNATAKA
KALABURAGI BENCH-585102.
2. SMT. SHANTABAI W/O CHOWDAPPA KURUMAL,
AGE: 43 YEARS, OCC: COOLIE,
R/O DEVANAGAON, TQ. SINDAGI,
DIST. VIJAYAPUR-586206.
...RESPONDENTS
(BY SRI. SIDDALING P.PATIL, ADDL. SPP FOR R1;
SRI B.C.JAKA, ADVOCATE FOR R2)
2
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
PRAYING TO ALLOW THIS APPEAL AND THEREBY SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 11.06.2018
PASSED BY THE II ADDL. SESSIONS JUDGE / SPECIAL JUDGE,
KALABURAGI IN SPECIAL CASE (POCSO) NO.2/2015 AND
ACQUIT THE APPELLANT OF ALL THE CHARGES IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FURTHER HEARING AND
HAVING BEEN HEARD AND RESERVED ON 03.08.2023, COMING
ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K. J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the convicted accused is directed
against the judgment and order of sentence dated
11.06.2018 passed in Special Case (POCSO) No.2/2015 by
the II Addl. Sessions Judge, at Kalaburagi, wherein the
learned Sessions Judge convicted the accused for the
offence punishable under Sections 366, 376(2)(i) of IPC and
Section 4 of the POCSO Act, 2012 and Section 3(i)(xv) and
3(2)(v) of SC/ST (PA) Act.
2. Thereby accused is sentenced to undergo simple
imprisonment for a period of 7 years and to pay a fine of
Rs.1,00,000/- for the offence punishable under Section 366
of IPC and in default to pay fine, to undergo further simple
imprisonment for a period of one year. Further sentenced
to undergo simple imprisonment for a period of 10 years
and to pay a fine of Rs.1,00,000/- for the offence
punishable under Section 376(2)(i) of IPC and in default to
pay fine, to undergo further simple imprisonment for a
period of one year. The accused is also sentenced to
undergo simple imprisonment for a period of 3 years and to
pay a fine of Rs.25,000/- for the offence punishable under
Section 3(1) (xv) of SC/ST (PA) Act and Sec.3(1)(z) of
SC/ST (PA) Amendment Act, 2015 and in default to pay
fine, he is directed undergo further simple imprisonment
for a period of three months. The accused is also directed
to undergo rigorous imprisonment for a period of 10 years
and to pay a fine of Rs.1,00,000/- for the offence
punishable under Section 4 of the POCSO Act 2012 and in
default to pay fine, to undergo simple imprisonment for a
period of one year. The accused is further sentenced to
undergo rigorous imprisonment for 10 years and to pay fine
of Rs.1,00,000/- for the offence punishable under Section 4
of POCSO Act 2012 and in default to pay fine, he is directed
to undergo simple imprisonment for a period of one year.
Further directed that all the sentences of imprisonment
shall run concurrently.
3. The factual matrix of the prosecution case are
that, the victim girl in this case is the daughter of the
complainant Shantabai (PW1) and Choudappa (PW4). The
appellant/accused used to live in the neighbouring vicinity
of PW1 and PW4 and was acquainted with the victim. The
victim belongs to Scheduled Caste and the accused belongs
to Talawar caste which is not a Scheduled Caste. The
victim used to go to M.M.M. High School, Afzalpur and used
to ply every day from her village to Afzalpur. Such being
the state of affair, on 02.10.2014 at about 12 noon when
the victim was waiting for the bus to return to her village,
the appellant/accused, kidnapped her by inducing that he
would marry her and took her to Matolli village. It is the
further case of the prosecution that on 03.10.2014, the
appellant/accused committed sexual intercourse with the
victim near the canal and on later dates took her to
different places. On 11.10.2014 while the appellant/accused
along with victim girl were waiting at Vaddanhalli Cross to
return to their village, the Almel Police apprehended them.
4. Initially on 09.10.2014, the mother of the victim
girl PW1 Shantabai lodged the complaint before Almel Police
Station, as per Ex.P1 and pursuant to the said complaint, a
criminal case came to be registered in Crime No.90/2014 as
per Ex.P20 at Almel Police Station, for the offence
punishable under Section 363 of IPC R/w Section 3(1) (xi)
of the SC/ST (PA) Act against the accused. During the
course of investigation, it was revealed that the victim girl
was kidnapped from Afzalpur bus stand which is situated in
Kalaburagi District, hence on the jurisdictional point, the
matter was transferred to Afzalpur Police Station from
Almel Police Station for investigation. In pursuance to such
transfer, the Afzalpur Police re-registered the FIR in Crime
No.260/2014 dated 28.10.2014 against the accused for the
offence punishable under Section 363 of IPC R/w Section
3(1)(xi) of the SC/ST (PA) Act as per Ex.P16. After the
arrest of accused, during the course of investigation, the
Investigation Officer sought for inclusion of Section 366,
376(2)(i) of IPC along with Section 3(1) (xv), Section
3(2)(v) of Atrocities Act along with Section 4 of POCSO Act.
Accordingly, after completing the investigation, PW23-
Investigation Officer filed chargesheet against the accused
for the aforesaid offences before the Special Court.
5. The learned Special Judge, framed charges
against the accused for the aforesaid offences and read
over to him. However, the accused denied the same and
claimed to be tried.
6. In order to bring home the guilt of the accused
for the charges leveled against the accused before the Trial
Court, the prosecution in all examined 24 witnesses as PW1
to PW24 and got marked as many as 22 documents as per
Ex.P1 to Ex.P22. After completion of the evidence of
prosecution, the incriminating portions of the evidence of
the material witnesses were read over to the accused as
contemplated under the provision of Section 313 of Cr.P.C,
the accused denied the same and, he examined himself as
DW1 and got marked 6 documents on his behalf as Ex.D1
to Ex.D6. The defence of the accused is one of total denial
and that of false implication.
7. After assessment of the oral and documentary
evidence placed before the Trial Court, so also after hearing
the learned counsel for both sides, the learned Special
Judge, convicted the accused for the charges leveled
against him as stated supra vide judgment dated
11.06.2018. The said impugned judgment is challenged in
this appeal.
8. We have heard the learned counsel Sri.
R.S.Lagali for the appellant/accused, Sri. Siddaling P.Patil,
learned Addl. SPP for respondent No.1-State and Sri.
B.C.Jaka, advocate for respondent No.2.
9. The learned counsel for the appellant
vehemently contended that, the judgment under this appeal
suffers from perversity and illegality, since the learned
Sessions Judge passed the impugned judgment contrary to
the law and facts of the case only based on assumption and
presumption, which is not sustainable under law. He would
further contend that the learned Sessions Judge failed to
appreciate the evidence on record in a proper perspective
based on the settled principles of law by this Hon'ble Court
and also the Hon'ble Apex Court. He would further contend
that there is an inordinate delay in lodging the complaint by
the parents of the victim. Though the incident said to have
taken place on 03.10.2014, but the complaint was lodged
on 09.10.2014 after lapse of 7 days. There is no
explanation by the prosecution for the said inordinate delay.
Hence, there is a clear doubt in the prosecution case from
its inception. He would further contend that the learned
Sessions Judge has much relied on the evidence of PW3 the
victim girl, but her evidence does not inspire confidence in
any manner since there are contradictions and omissions in
her evidence and the manner in which she narrated the
incident clearly creates a doubt in her version. Her
evidence is not of sterling quality, as such the same cannot
be relied to prove the charges leveled against the accused.
He would further contend that the prosecution has utterly
failed to prove that the victim was a minor at the time of
incident. Though the prosecution relied on the evidence of
PW11 to prove the age of the victim that she was minor at
the time of incident, on perusal of the evidence of PW11
and the documents Ex.P7 and Ex.P8, the same cannot be
considered for any purpose, for the reason that PW11 is not
the author of those documents and Ex.P8 the transfer
certificate does not pertain to the school of PW11. Further,
the prosecution failed to examine the author of Ex.P7 and
Ex.P8. Moreover, Ex.P8 is not the original document. The
learned counsel would further contend that the evidence of
PW9-the Dentist and Ex.P5 the certificate issued by him
depicts that the age mentioned in the said certificate need
to be confirmed by the Radiologist, but the prosecution
failed to obtain such certificate/confirmation from the
Radiologist. In such circumstances, the prosecution failed
to prove that the victim was a minor at the time of incident.
He would contend that as per the prosecution case, the
victim was aged about 16 years at the time of incident, but
the prosecution failed to prove the exact age of the victim
girl and as per the settled position of law by the Hon'ble
Apex Court, two years margin can be given on both sides
and in such an eventuality it has to be treated that the
victim girl was major at the time of incident. Hence,
according to him the prosecution failed to prove the age of
the victim girl that she was minor at the time of incident.
10. The learned counsel would further contend that
the prosecution has also failed to prove the charge under
Section 363 and 366 of IPC for the reason that, perusal of
evidence of PW3 and also her parents i.e., PW1 and PW4,
they categorically stated that the accused kidnapped her
from the place i.e. Afzalpur bus stand which is a crowded
place. Subsequently, the victim and accused stayed
together for so many days. According to PW1, she came to
know that the accused had kidnapped her daughter through
PW2-Kasturibai on 03.10.2014 itself, but she failed to lodge
the complaint till 09.10.2014, which creates a doubt in the
version of PW1, PW3 and PW4.
11. The learned counsel further contended that, the
Trial Court erred in wrongly invoking the provisions of
Atrocities Act i.e. the provision under Section 3(2)(v) of the
said Act. According to him, on perusal of the evidence
available on record, no offence is made out under Section
3(2)(v) of the Atrocities Act. In order to attract the said
provision, prosecution has to prove the offence must have
been committed against the person for the reason that such
person is a member of Scheduled Caste and Scheduled
Tribe. In the instant case no evidence has been led to
establish the said requirement. He has contended that, it
is not the case of prosecution that the accused has
committed rape on the victim for the reason that she was a
member of Schedule Caste. In the absence of such
evidence, Section 3(2)(v) has no application. Even
otherwise on careful perusal of the evidence, the provision
under Section 3(i)(xv) is also not applicable since the
accused did not use forces or caused a member of
scheduled caste or scheduled tribes to leave his house,
village or other places of residence. Hence, the conviction
for the said offence is also bad in law.
12. The learned counsel also contended that the
learned Special Judge, convicted the accused based on
assumptions and presumptions and failed to consider the
aspect that the accused was married person and there was
no question of marrying the victim. Admittedly, the
accused was residing in the neighbouring vicinity of the
victim. Both are known to each other. On perusal of the
evidence, it is clearly proved that the victim voluntarily
went along with the accused and she was a consenting
party. If such an incident as narrated by the victim has
really taken place, she had many opportunities to escape or
raise alarm, but she kept quite, which clearly goes to show
that she was a consenting party and she was major at the
time of incident. Further PW5-the father of the accused
took the victim girl to the village and a panchayat was
convened. the victim girl was advised by PW6 and PW7 to
go to her parental house as accused person was a married
man. Inspite of the same, the victim refused to go to her
parental house and voluntarily accompanied the accused
which clearly demonstrates the fact that in spite of accused
being a married person, the victim was in love with him and
at no point of time, he forcibly kidnapped her from the
lawful guardian or committed forcible sexual intercourse on
her as claimed by herself or her parents. Hence, according
to the learned counsel, the Trial Judge without considering
all the above aspects, wrongly convicted the accused for
the charges under Section 376(2)(i) of IPC and Section 4 of
POCSO Act. Hence, the impugned judgment is liable to set
aside. Accordingly, he prays to allow the appeal.
13. Refuting the above submissions made by the
learned counsel for the appellant, the learned Addl. SPP
vehemently contended that the judgment under appeal
does not suffer from any perversity or illegality and the
same is based on the evidence available on record.
14. The learned Addl. SPP contended that, the
Special Judge convicted the accused after carefully
appreciating the oral and documentary evidence adduced
by the prosecution. As such the same is sustainable under
law. The learned Addl. SPP has further contended that, the
evidence of PW3 the victim girl clearly depicts that accused
had forcibly kidnapped her from lawful guardianship and
thereafter he forcibly took her to different places and
committed forcible sexual act on her by knowing fully well
that she belongs to Scheduled Caste and she was a minor
at that time. As such the offence under Section 363,
376(2)(i) of IPC and Section 4 of POCSO Act, 2012 and the
provisions of SC/ST (PA) Act are proved by the prosecution
by adducing cogent evidence.
15. He would further contend that there is no reason
to disbelieve the evidence of victim PW3 and also the
evidence of her parents i.e. PW1 and PW4. Though there is
a delay of 7 days in lodging the complaint, PW1 being a
rustic villager, lodged the complaint after searching for her
daughter for 6 days. Accordingly, she deposed before the
Court. He would further contend that, the prosecution
proved the age of the victim girl by examining PW11-the
Head Master of the School of the victim so also the
documents Ex.P7 i.e. the School Register and Ex.P8 the
Transfer Certificate. Moreover, the prosecution also
examined PW9-Dr.Drakshayini who conducted the required
medical tests to determine the age of the victim. The
certificate produced by the said doctor as per Ex.P5, depicts
that the victim was aged about 15 to 16 years. The said
ossification test conducted by PW9 clearly proved the age of
the victim that she was 15 to 16 years at the time of
incident. Hence, the prosecution clearly proved that she
was a minor at the time of incident. According to the
learned Addl. SPP, the contention of learned counsel for the
appellant that the victim girl was a consenting party cannot
accepted for the reason that victim being a minor and even
if she has consented for the act, the same cannot be
treated as legal consent. Accordingly, the learned Addl.
SPP prays to dismiss the appeal and to confirm the
judgment passed by the Trial Court.
16. We have bestowed our anxious consideration to
the submissions made by the learned counsel for the
appellant so also the State and also perused the evidence
and materials available on record including the impugned
judgment passed by the Trial Court.
17. Having heard the learned counsel on both sides
and having perused the documents, the points that would
arise for our consideration are that:
1. Whether the judgment under this appeal
suffers from any perversity or illegality?
2. Whether the Trial Court/Special Judge is
justified in convicting the appellant for
the offence punishable under Section
366, 376(2)(i) of IPC and Section 4 of
POCSO Act, 2012 and Section 3(i)(xv)
and 3(2)(v) of SC/ST (PA) Act?
18. This Court being the appellate Court, re-
appreciation of the entire evidence on record is very much
required. PW1-Shantabai, the mother of the victim girl
who lodged the complaint before the respondent-police as
per Ex.P1, deposed that as on the date of incident her
daughter victim girl was studying in 10th Std. at Afzalpur
School and 9 months prior, her daughter had gone to
school at about 9.00 a.m. and thereafter she did not return.
Though they made an attempt to trace her, she was not
found and after 6 to 7 days, she came to know through
PW2 that her daughter went along with the accused from
the bus stop, as such she lodged the complaint against the
accused before Almel Police Station as per Ex.P1. She
further stated that after 8 days her daughter came to her
house and informed that the accused forcibly took her and
committed rape on her.
19. PW2-Kasuribai Subash, is the sister-in-law of
PW1, deposed that 10 months prior, at about 7.00 p.m. on
the date of Gandhi Jayanti, she had seen the accused and
victim at Afzalpur bus stop and she informed the same to
the mother of the victim i.e. PW1.
20. PW3 is the victim, deposed that on October 2nd,
on the date of Gandhi Jayanti after completing the school
programme, while she was returning to her house, at
Afzalpur bus stop, the accused called her through phone
and came to Afzalpur bus stop at 11.00 a.m. and thereafter
induced her that he would marry her and forcibly took her
in a private vehicle and they both stayed in a school
varanda in a village and thereafter on the next day he took
her near a canal and committed rape on her and they both
stayed together near the said canal on that day. On the
next day, her father came to the said spot and took her to
her house and thereafter, she informed the acts committed
by the accused to her parents, police and before the
Magistrate.
21. PW4-Choudappa, who is the father of the victim,
reiterated the version of PW1 and deposed that the accused
forcibly kidnapped his daughter and committed forcible
sexual intercourse on her and the same was informed to
him by his daughter.
22. PW5-Shivappa, who is the father of the accused,
a circumstantial witness, turned hostile to the prosecution
case.
23. PW6-Shankrappa Mahadevappa, is a
circumstantial witness, an elderly person who had
admonished the victim, when the father of the accused PW5
brought her after the incident. However, this witness
turned hostile to the prosecution case.
24. PW7-Sharanappa is also a circumstantial
witness, an elderly person who had admonished the victim
when the father of the accused PW5 brought her after the
incident. However, this witness also turned hostile to the
prosecution case.
25. PW8-Neelappa, a witness for the spot mahazar
i.e. the place of kidnap as per Ex.P4.
26. PW9-Dr.Drakshayini, who examined the victim
girl and gave her opinion in respect of her age as per Ex.P5.
27. PW10-Mallikarjun, the Tahasildar who issued the
caste certificate of the victim, her family and also the
appellant as per Ex.P6.
28. PW11-S.M.Karikalla, Incharge Head Master, who
had issued school certificate regarding the age and caste of
the victim as per Ex.P7 and Ex.P8.
29. PW12-Bheemashya is a panch witness to Ex.P9-
spot mahazar, where the accused committed rape on the
victim. However, this witness turned hostile to the
prosecution case.
30. PW13-Dr. Vijay, who examined the victim girl
and issued Primary medical certificate as per Ex.P10 and
also issued the final opinion as per Ex.P12. FSL report-
Ex.P11 is marked through the said witness.
31. PW14-Annappa, Assistant Engineer, who had
drawn the hand sketch map of the place of incident as per
Ex.P13.
32. PW15-Nanagouda is a co-pancha to the spot
mahazar marked as per Ex.P9. However, this witness
turned hostile to the prosecution case.
33. PW16-Dr. Ashok, examined the accused and
conduct potency test and issued certificate as per Ex.P14.
34. PW17-Bharati, the WPC, who accompanied the
victim girl from protection house to Afzalpur Police Station.
35. PW18-Ramulu, the then ASI registered the FIR
at Almel Police Station as per Ex.P16.
36. PW19-Shankar Mallappa, conducted partial
investigation in the case.
37. PW20-Shettappa, PSI who registered the case
initially at Almel Police Station as per Ex.P20 (FIR).
38. PW21-Veena Mohan Nayak, PSI of APMC Police
Station recorded the statement of the victim.
39. PW22-Suresh, the PSI accompanied the victim
from protection house to Dy.S.P. Office.
40. PW23-Shivashankar, S.P., ISD who also
conducted the partial investigation in the case.
41. PW24-Shivakumar Mallappa, the Investigation
Officer, recorded the statement of the victim girl under
Section 164 of Cr.P.C and also recorded the statements of
other witnesses and after obtaining the necessary
documents from the concerned authorities, laid chargesheet
against the accused.
42. DW1-Mallikrjun Shivappa, is the accused,
deposed in respect of the false implication of him in the
alleged crime.
43. On a careful perusal of the evidence of the above
witnesses, in order to prove the charges leveled against the
accused for the offence punishable under Sections 363,
366, 376(2)(i) of IPC and Section 4 of POCSO Act, 2012
and Section 3(i)(xv) and 3(2)(v) of SC/ST (PA) Act is
concerned, the prosecution mainly relied on the evidence of
PW3-the victim girl so also the evidence of PW1-the mother
of the victim and PW4 father of the victim. On perusal of
the complaint lodged by PW1, admittedly there is a delay of
7 days in lodging the said complaint. The alleged incident
said to have taken place on 02.10.2014 at about 12 noon
and the complaint came to be lodged on 09.10.2014 before
the Almel Police Station. The reason assigned for the said
delay by the prosecution that the complainant's husband
Chowdappa had gone to Bangalore for treatment of his son-
Vithal who was operated and only upon his return she came
forwarded to lodge the complaint. But on careful perusal of
the complaint depicts that on 03.10.2014 itself PW2-
Kasturibai the complainant very well knew that the accused
had kidnapped her daughter. On the said date, the
complainant along with Kasturibai went to the house of the
accused to ascertain the whereabouts of the accused. It is
also not in dispute that the accused had not returned to his
house since 02.10.2014. On 03.10.2014, the complainant
very well knew that the accused had kidnapped her
daughter on 02.10.2014 while she was waiting for the bus.
In the cross examination of PW1, she categorically admitted
that in between 02.10.2014 to 09.10.2014 she had visited
the Almel Police Station with respect to her missing
daughter. However, she failed to lodge any complaint till
09.10.2014 inspite of knowing that the accused had
kidnapped her daughter. The said conduct of PW1 and PW4
being the parents of the victim girl creates a doubt in their
version in respect of the alleged incident. Nevertheless on
careful perusal of the evidence of PW3-the victim, she
categorically admitted in her cross examination that the
accused took her from Afzalpur bus stand which is a
crowded place and from there he took her to Matolli village
in a private vehicle. The victim and the accused stayed in a
school on that day and on the next day, from Matolli they
started walking towards Ghatteragi and the accused took
her to a canal and they stayed on that day in the said place.
The next day, the father of the accused came there and
took the victim to their village and made her to meet the
elders of her community. Accordingly, PW6 and PW7 the
elderly people of the village admonished and advised her to
go to her parents' house as the accused was already
married. However, the victim refused and went along with
the accused to Afzalpur in a Government bus. From
Afzalpur, the accused took her to Gulbarga and they stayed
at Gulbarga for a night. From Gulbarga they went to
Chittapur and stayed in a temple for 2 to 3 days. From
Chittapur the accused took the victim to Ghatteragi and
stayed in a temple for one day and later in order to return
to their village they went to Sindagi and from there went to
Aleml and while they are waiting for the bus at Waddanhalli
Cross, the police apprehended them. Admittedly, on all
those days the victim has not made any attempt to escape
from the clutches of the accused or to raise alarm against
the accused. PW6 and PW7 clearly deposed before the
Court that they advised the victim to go to her parental
house as accused was a married person. In spite of that,
the victim refused to go to her parental house and
voluntarily went along with the accused. On perusal of the
above evidence of the victim, it can be easily gathered that
she accompanied the accused voluntarily without any force
or threat. Even the conduct of her parents i.e. PW1 and
PW4 about non lodging of complaint for a period of 7 days
knowing fully well that the accused had kidnapped their
daughter, once again confirms that the victim girl
voluntarily accompanied the accused.
44. The learned Addl. SPP has vehemently
contended that since the victim being a minor at the time of
incident, even if she has voluntarily accompanied the
accused and consented for the sexual act, the conviction of
the accused for the charges leveled against him holds good.
In order to prove the age of the victim, that she was minor
at the time of incident, the prosecution relied on the
evidence of PW11- the Head Master, who issued Ex.P7 and
Ex.P8 i.e. the School Registers and the Transfer certificate
of the victim girl. On careful perusal of the evidence of
PW11-the Head Master, he categorically admitted in his
cross examination that the said Ex.P7 was not issued based
on the birth certificate of the victim. He also admitted in
his evidence that at the time of admission to the school, the
production of birth certificate was compulsory. Further he
stated that the Ex.P8 - Transfer certificate was not issued
from his school and the said Ex.P8 is the photocopy.
However, the said witness failed to produce the original of
the same. Hence, by perusal of the evidence of PW11, and
Ex.P7 and Ex.P8, PW11 not being the author of those
certificates so also the same were not issued without
looking into the birth certificate of the victim, in our
considered view, much evidentiary value cannot be
attached to the evidence of PW11 and Ex.P7 and Ex.P8.
45. The prosecution also relied on the evidence of
PW9 i.e. Dr. Drakshayini, who conducted the ossification
test of the victim girl in order to determine her age and she
issued the certificate Ex.P5 and stated that the victim was
aged about 15 to 16 years at the time of her examination.
However, perusal of Ex.P5, certificate issued by the said
doctor, clearly depicts that the said certificate issued
regarding the age required to be confirmed by the
Radiologist for proper determination of the age of the victim
girl. In this case, the Radiologist is not examined by the
prosecution. Hence, Ex.P5 cannot solely be relied to
conclude the age of the victim girl, since it was not
confirmed by the Radiologist as opined by PW9. Hence, the
evidence of PW9 is also not much helpful to the prosecution
to prove that the victim was minor at the time of incident.
In such circumstances, the Hon'ble Apex Court in the
judgment rendered in Criminal Appeal No.1898/2023 in
the case of P.Yuvaprakash V/s State Rep. by Inspector
of Police held that the date of birth certificate from the
school or the matriculation or equivalent certificate by the
concerned examination board has to be firstly preferred
based on the birth certificate issued by the corporation or
municipal authority or a Panchayat and it is only thereafter
in the absence of those such documents the age is to be
determined through ossification or any latest medical age
determination test conducted on the orders of the
concerned authority i.e. the committee or board or school.
Admittedly, in this case, the prosecution has failed to
produce the birth certificate of the victim girl and the
original transfer certificate. The Hon'ble Apex Court in the
case of Vinod Katara V/s State of Uttar Pradesh,
reported in 2022 SCC OnLine SC 1204 in para 57 and 60
of the said judgment held as under:
57. The bone ossification test
(hereinafter "ossification test") is a test that
determines age based on the "degree of
fusion of bone" by taking the x-ray of a few
bones. In simple words, the ossification test
or osteogenesis is the process of the bone
formation based on the fusion of joints
between the birth and age of twenty-five
years in an individual. Bone age is an
indicator of the skeletal and biological
maturity of an individual which assists in the
determination of age. the most common
method used for the calculation of the bone
age is radiography of the hand and wrist
until the age of 18 yearsbeyond which the
medial age of clavicle is used for bone age
calculation till the age of 22 years as the
hand and wrist bone radiographs cannot be
computed beyond 18 years of age as the
elongation of the bone is complete after
adolescence. However, it must be noted
that the ossification test varies slightly based
on individual characteristics, therefore the
ossification test though is relevant however
it cannot be called solely conclusive.
60. The bone ossification test is not an
exact science that can provide us with the
exact age of the person. As discussed
above, the individual characteristics such as
the growth rate of bones and skeletal
structures can affect the accuracy of this
method. This Court has observed in Ram
Suresh Singh v. Prabhat Singh, (2009) 6
SCC 681: (2010) 2 SCC (Cri) 1194, and Jyoti
Prakash Rai v. State of Bhiar, (2008) 15 SCC
223: (2009) 3 SCC (Cri) 796, that the
ossification test is not conclusive for age
determination because it does not reveal the
exact age of the person, but the radiological
examination leaves a margin of two years on
either side of the age range as prescribed by
the test irrespective of whether the
ossification test of multiple joints is
conducted. The courts in India have
accepted the fact that after the age of thirty
years the ossification test cannot be relied
upon for age determination. It is trite that
the standard of proof for the determination
of age is the degree of probability and not
proof beyond reasonable doubt.
46. The Hon'ble Apex Court in the above judgment
has held that the radiological examination leaves a margin
of two years on either side of the age range as prescribed
by the test irrespective of whether the ossification test of
multiple joints is conducted. In the case on hand, even the
ossification test was also not properly conducted since the
report was neither confirmed by the radiologist nor was he
examined before the Court. In such circumstances, in our
considered view, the prosecution has failed to prove the age
of the victim girl that she was 15 to 16 years at the time of
alleged incident. Even otherwise as per settled law by the
Hon'ble Apex Court, though her age was considered to be
16 years then also two years margin can be extended on
either side. In such circumstances, it has to be considered
that she attained majority i.e. 18 years at the time of
incident.
47. As discussed supra, on careful perusal of the
evidence of PW3 the victim girl, so also the evidence PW1
and PW4, their evidence does not inspire confidence of the
Court since there are material variations in the complaint
and deposition of PW1 and also the statement and evidence
of PW3-victim. The evidence of PW3 shows several lacunae
which have been already discussed supra and her evidence
is not that of 'sterling quality'. The Hon'ble Apex Court in
the judgment rendered in the case of Rai Sandeep Alias
Deepu V/s State (NCT of Delhi), reported in (2012) 8
SCC 21, referring to the judgment in Krishan Kumar
Malik V/s State of Haryana, reported in (2011) 7 SCC
130, held that; "No doubt, it is true that to hold an accused
guilty for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient, provided the same
inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling quality."
On careful perusal of the evidence of PW3 and her parents
PW1 and PW4, it is difficult to act on their testimony to
convict the accused since their testimony does not inspire
confidence and is found to be not reliable.
48. Even the Hon'ble Apex Court in the case of
Kavita Chandrakant Lakhani V/s State of Maharashtra
and another, reported in (2018) 3 SCC (Cri) 391 held
that, to prove the offence under Section 366 of IPC, the
prosecution has to prove that a person must have carried
the victim illegally by force or deception, that is, to compel
a person by force or deceitful means to induce to go from
one place to another. In para 15, 16 and 17 of the said
judgment it is held as under:
15. In the above backdrop, it is
pertinent to mention here the ingredients of
Section 366 of IPC which are as under:
"366. Kidnapping, abducting or
inducing woman to compel her
marriage, etc. - Whoever kidnaps or
abducts any woman with intent that she may
be compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order that she may be
forced or seduced to illicit intercourse, or
knowing it to be likely that she will be forced
or seduced to illicit intercourse, shall be
punished with imprisonment of either
description for a term which may extent to
ten years, and shall also be liable to fine;
and whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall be punishable as
aforesaid."
16. In order to constitute the the
offence of "abduction", a person must be
carried off illegally by force or deception,
that is, to compel a person by force or
deceitful means to induce to go from one
place to another. The intention of the
accused is the basis and the gravamen of an
offence under this section. The volition, the
intention and the conduct of the accused
determine the offence; they can only bear
upon the intent with which the accused
kidnapped or abducted the woman, and the
intent of the accused is the vital question for
determination in each case. Once the
necessary intent of the accused is
established, the offence is complete,
whether or not the accused succeeded in
effecting his purpose, and whether or not
the woman consented to the marriage or the
illicit intercourse.
17. Apart from this, to constitute an
offence under Section 366 IPC, it is
necessary for the prosecution to prove that
the accused induced the complainant woman
or compelled by force to go from any place,
that such inducement was by deceitful
means, that such abduction took place with
the intent that the complainant may be
seduced to illicit intercourse and / or that the
accused knew it to be likely that the
complainant may be seduced to illicit
intercourse as a result of her abduction.
Mere abduction does not bring an accused
under the ambit of this penal section. So far
as charge under Section 366 IPC is
concerned, mere finding that a woman was
abducted is not enough, it must further be
proved that the accused abducted the
woman with the intent that she may be
compelled, or knowing it to be likely that she
will be compelled to marry any person or in
order that she may be forced or seduced to
illicit intercourse or knowing it to be likely
that she will be forced or seduced to illicit
intercourse. Unless the prosecution proves
that the abduction is for the purposes
mentioned in Section 366 IPC, the court
cannot hold the accused guilty and punish
him under Section 366 IPC.
49. On careful perusal of the above dictum laid down
by the Hon'ble Apex Court, it is clear that, the accused
must compel the victim girl or knowing it to be likely that
she will be compelled to marry any person or in order to
she may be forced or seduced to illicit intercourse. In the
case on hand, it is not the case of the prosecution that the
accused kidnapped her for compelling her to marry him or
any other person and the accused forced or seduced her to
illicit intercourse. On perusal of the evidence of PW3, it
clearly depicts that she was a consenting party and she
voluntarily accompanied the accused and stayed along with
him for about seven days at different places without any
kind of oppose/objection. Nevertheless, PW13-the doctor
who examined the victim, opined that "there are no signs of
recent sexual intercourse on the victim" as per Ex.P10.
Hence, the ocular evidence of PW3 the victim girl is not
corroborated with the medical evidence as per Ex.P10 and
the evidence of PW13. As rightly contended by the learned
counsel for the appellant, the manner in which the victim
deposed in her evidence in respect of the commission of the
crime, does not inspire confidence of the Court. On a
careful perusal of her evidence, herself and accused have
travelled to different places and also stayed in the night at
two places. If at all the victim was taken against her wish
she would have definitely raised alarm and easily managed
to escape. In the entire sequences of events, the victim
has neither made any attempt to escape or raise alarm,
which clearly demonstrate that the accused at no point of
time either forcibly kidnapped her or committed forcible
sexual intercourse on her. Hence, we are of the considered
view that the prosecution has failed to prove the offences
punishable under Section 366, 376(2)(i) of IPC and Section
4 of POCSO Act.
50. As for as the conviction by the Trial Court for the
offence punishable under Section 3(2)(v) of SC/ST (PA) Act
is concerned, the Hon'ble Apex Court in the judgment
rendered in Ramdas and others V/s State of
Maharashtra, reported in (2007) 1 SCC (Cri) 546 at
para 11 of the said judgment held as under:
11. At the outset we may observe that
there is no evidence whatsoever to prove the
commission of offence under Section 3(2)(v)
of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
The mere fact that the victim happened to
be a girl belonging to a Scheduled Caste
does not attract the provisions of the Act.
Apart from the fact that the prosecutrix
belongs to the Pardhi community, there is no
other evidence on record to prove any
offence under the said enactment. The High
Court has also not noticed any evidence to
support the charge under the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 and was perhaps
persuaded to affirm the conviction on the
basis that the prosecutrix perhaps persuaded
to affirm the conviction on the basis that the
prosecutrix belongs to a Scheduled Caste
community. The conviction of the appellants
under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 must, therefore, be set
aside.
51. On careful perusal of the facts and circumstances
and the evidence on record, in the case on hand, it is no
where forthcoming in the evidence of the witnesses that the
accused had either kidnapped the victim or committed rape
on her for the reason, only, to belittle the caste of the
victim, that she belongs to scheduled caste. There was no
such intention or knowledge forthcoming on the part of the
accused that he had allegedly committed the offence for the
reason that the victim girl belongs to schedule caste. Even
in the case of Asharfi V/s State of Uttar Pradesh,
reported in (2018) 1 SCC (Cri) 489, the Hon'ble Apex
Court held that in order to attract the unamended
provisions of Section 3(2)(v) of SC/ST Prevention of
Atrocities Act, it is clear that the statute laid stress on the
intention of the accused in committing such offence in order
to belittle the person as he / she belongs to Scheduled
Caste or Schedule Tribes community. In such
circumstances, in our considered view, the conviction for
the offence punishable under Section 3(2)(v) of SC/ST Act
does not hold good. Nevertheless, the Section 3(1)(xv)
(3)(1)(z) of SC/ST (PA) Amended Act 2015 is also not
proved by the prosecution that the accused at any point of
time used force or caused a member of schedule caste or
schedule tribes to leave his house, village or other place of
residence. Thus, the prosecution has miserably failed to
prove such charge in the case on hand that the accused
used such force to either PW3 the victim or PW1 and PW4
i.e. her parents. It is admitted case of the prosecution that
the victim accompanied the accused from the bus stop on
the date of incident. Hence, the conviction for the said
offence is also not tenable.
52. A careful perusal of the overall evidence adduced
by the prosecution, in our considered view, the prosecution
has failed to prove the charges leveled against the accused
beyond reasonable doubt. As per settled position of law by
the Hon'ble Apex Court, the prosecution has to prove its
case beyond reasonable doubt and there is a distance
between place of proof "may be" and "must be" as held in
the case of Nagendra Singh and another V/s State of
M.P., reported in 2004 (10) SCC 699. In that view of the
matter, the learned Special Judge failed to appreciate the
evidence in the proper perspective and erroneously
convicted the accused based on assumptions and
presumptions, as such the impugned judgment is liable to
be set aside. Accordingly, we answer the points raised
above and proceed to pass the following:
ORDER
i) Criminal Appeal No.200088/2018 is allowed.
ii) The judgment and order dated 11.06.2018
passed in Special Case (POCSO) No.2/2015
by the II Addl. Sessions Judge, at
Kalaburagi, convicting the accused and
thereby sentencing him under Sections 366,
376(2)(i) of IPC and Section 4 of POCSO Act,
2012 and Section 3(i)(xv) and 3(2)(v) of
SC/ST (PA) Act, is set aside.
iii) The appellant/accused is acquitted from the
charges for the offence under Sections 366,
376(2)(i) of IPC and Section 4 of POCSO Act,
2012 and Section 3(i)(xv) and 3(2)(v) of
SC/ST (PA) Act.
iv) The Jail authorities are directed to release
the accused forthwith, if he is not required in
any other case.
v) Fine amount deposited if any, shall be
refunded to the accused.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
