State Of Karnataka vs Nayeem S/O Zaffar
2023 Latest Caselaw 1493 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

   DATED THIS THE 22ND DAY OF FEBRUARY, 2023

                             PRESENT

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                              AND

         THE HON'BLE MR. JUSTICE C.M. JOSHI

          CRIMINAL APPEAL No.100053/2019

BETWEEN:

State of Karnataka
Represented by the
Police Inspector,
Cowl Bazar Police Station,
Ballari, Through the Addl.
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka
Dharwad Bench.
                                                       .. Appellant
(By Sri. V.S. Kalasurmath, High Court Govt. Pleader)

AND:

Nayeem S/o. Zaffar,
Age: 20 years,
Occ: Mestri,
R/o. Ward No.27,
Vattappa Street,
Cowl Bazaar,
Ballari, Pin Code: 583102.
                                              .. Respondent
(By Sri. Abhinandan M. Gundawade, Amicus Curiae)
                                             Crl.A.No.100053/2019
                                2




                              ****
       This Criminal Appeal is filed under Section 378 (1) and (3)
of the Code of Criminal Procedure, 1973, praying to grant leave
to appeal against the judgment and order of acquittal dated
05-03-2018, passed by the I Addl. District and Sessions Judge,
Ballari in Special Case No.54/2015; set aside the judgment and
order of acquittal dated 05-03-2018, passed by the I Addl.
District and Sessions Judge, Ballari, in Special Case No.54/2015
and convict the respondent/ accused for the offences
punishable under Section 376 of the IPC and under Sections 4
and 6 of the POCSO Act, 2012, in the interest of justice and
equity.

      This Criminal Appeal having been heard through Physical
Hearing/Video Conferencing Hearing and reserved for judgment
on 16-02-2023, coming on for pronouncement this day,
Dr.H.B.Prabhakara Sastry J., delivered the following:


                       JUDGMENT

The State has filed this appeal under Section 378 (1)

& (3) of the Code of Criminal Procedure, 1973 (hereinafter

for brevity referred to as "the Cr.P.C."), challenging the

judgment of acquittal dated 05-03-2018, passed by the

learned I Additional District and Sessions Judge, Ballari,

(hereinafter for brevity referred to as the "the Special

Judge's Court") in Special Case No.54/2015, acquitting the

accused of the offences punishable under Section 376 of

the Indian Penal Code, 1860 (hereinafter for brevity Crl.A.No.100053/2019

referred to as "the IPC") and under Sections 4 and 6 of the

Protection of Children from Sexual Offences Act, 2012

(hereinafter for brevity referred to as "the POCSO Act").

2. The summary of the case of the prosecution in the

Special Judge's Court was that, on the date 01-03-2015 at

about 5:45 p.m., when CW-2 (the alleged victim) the

minor daughter of the complainant had been to the house

of the accused, situated at Vattappageri Street, Cowl

Bazaar, Ballari, within the limits of the complainant Police

Station, to ask and take back a sum of `10/-, which was

said to have been given to the father of the accused, at

that time, the accused, who was alone present in the

house, asked the victim girl to get some drinking water to

him. Thus, when the victim went near the water drum, the

accused caught hold of her, tying her eyes and mouth with

cloth, kissed her private parts and committed sexual

assault on her and thereby committed the offences

punishable under Section 376 of the IPC and under

Sections 4 and 6 of the POCSO Act.

Crl.A.No.100053/2019

3. Charges were framed against the accused for

the offences punishable under Section 376 of the IPC and

under Sections 4 and 6 of the POCSO Act. Since the

accused pleaded not guilty, the trial was held, wherein, in

order to prove the alleged guilt against the accused, the

prosecution got examined in all eleven (11) witnesses as

PW-1 to PW-11, got marked documents from Exs.P-1

to P-19(a) and got produced Material Objects from MO-1 to

MO-17(a). From the accused's side, neither any witness

was examined nor any documents were got marked as

exhibits.

After hearing both side, the learned Special Judge's

Court, by its judgment dated 05-03-2018, acquitted the

accused of the offences punishable under Section 376 of

the IPC and under Sections 4 and 6 of POCSO Act.

Challenging the same, the appellant - State has preferred

the present appeal.

4. The appellant -State is represented by the learned

High Court Government Pleader.

Crl.A.No.100053/2019

Since the respondent, who is an accused has

remained un-represented even after service of notice upon

him and the present appeal is an appeal against the

judgment of acquittal, the Court, by its reasoned order

dated 04-02-2023 appointed learned counsel -

Sri. Abhinandan M. Gundawade, as an Amicus Curiae for

the respondent (accused) to represent him in the present

case.

The complainant (PW-1) -Smt. Shekhan Bee and the

victim girl (PW-3) - Kum. Firdose, though were also

served, however, they remained absent.

5. The learned High Court Government Pleader for

the appellant-State and the learned Amicus Curiae for the

respondent (accused) are physically appearing in the

Court.

6. The Special Judge's Court records were called for

and the same are placed before this Court.

7. Heard the arguments from both side. Perused the

materials placed before this Court, including the Crl.A.No.100053/2019

memorandum of appeal, impugned judgment and the

Special Judge's Court records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the

learned Special Judge's Court.

9. After hearing the learned counsels from both side,

the points that arise for our consideration in this appeal

are:

            [i]     Whether     the       prosecution     has     proved
       beyond      reasonable   doubt        that,   on     the     date

01-03-2015, at about 5:45 p.m., the accused in his house situated at Vattappageri Street, Cowl Bazaar, Ballari, within the limits of the complainant Police Station, committed rape upon PW-3 (CW-2) - the victim girl and thereby has committed the offence punishable under Section 376 of the Indian Penal Code, 1860?

[ii] Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused, knowing fully well, that PW-3 (CW-2) was minor in her age, committed penetrative sexual assault and aggravated penetrative sexual assault and thereby Crl.A.No.100053/2019

has committed the offences punishable under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012?

[iii] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

10. The present appeal is filed by the complainant -

State, challenging the judgment of acquittal of the accused

from the alleged offences punishable under Section 376 of

the IPC and under Sections 4 and 6 of the POCSO Act.

Since as per criminal law, the accused is presumed to be

innocent until his guilt is proved and further the accused,

in the instant case, has already been benefitted by the

impugned judgment of acquittal in his favour, this Court,

as a Court of appeal upon the impugned judgment of

acquittal, must be very careful and cautious in analysing

and appreciating the evidence led in the matter.

(a) Our Hon'ble Apex Court, in its judgment in the

case of CHANDRAPPA AND OTHERS Vs. STATE OF

KARNATAKA, reported in (2007) 4 Supreme Court Cases Crl.A.No.100053/2019

415, while laying down the general principles regarding

powers of the Appellate Court while dealing in an appeal

against an order of acquittal, was pleased to observe at

paragraph 42(4) and paragraph 42(5) as below:

" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

(b) In the case of Sudershan Kumar Vs. State of

Himachal Pradesh reported in (2014) 15 Supreme Court

Cases 666, while referring to Chandrappa's case (supra),

the Hon'ble Apex Court at Paragraph 31 of its Judgment Crl.A.No.100053/2019

was pleased to hold that it is the cardinal principle in

criminal jurisprudence that presumption of innocence of

the accused is reinforced by an order of acquittal. The

Appellate Court, in such a case, would interfere only for

very substantial and compelling reasons.

(c) In the case of JAFARUDHEEN AND OTHERS Vs.

STATE OF KERALA, reported in (2022) 8 Supreme Court

Cases 440, at Paragraph 25 of its judgment, the Hon'ble

Apex Court was pleased to observe as below:

"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

Crl.A.No.100053/2019

The above principle laid down by it in its previous

case was reaffirmed by the Hon'ble Apex Court, in the case

of RAVI SHARMA VS. STATE (GOVERNMENT OF NCT OF

DELHI) AND ANOTHER reported in (2022) 8 Supreme

Court Cases 536.

It is keeping in mind the above principles laid down

by the Hon'ble Apex Court, we proceed to analyse the

evidence placed in this matter.

11. According to the prosecution, the alleged victim

girl (PW-3)(CW-2) was minor in her age and she was aged

12 years as on the date of the incident, which, according

to the prosecution, has taken place on the date

01-03-2015.

The first witness who speaks about the age of the

alleged victim girl is none else than her mother (CW-1)

Smt. Shekhan Bee, who was examined as PW-1. The

witness (PW-1) in her examination-in-chief has stated

that, her daughter i.e. the alleged victim girl was aged 11 Crl.A.No.100053/2019

years, and as on the date of her evidence, she was

studying in VI standard. The said evidence of PW-1 about

the age of the alleged victim girl has not been denied from

the accused's side in her cross-examination. PW-3 (CW-2)

the alleged victim girl, who, after certain Court questions

put to her was administered with oath, has, in her

evidence, stated that, as on the date of her cross-

examination on the date 27-12-2016, she was studying in

VII standard. She has stated that her age was 13 years.

Her evidence regarding her age has not been denied from

the accused's side in her cross-examination.

12. In addition to the above, the prosecution also

got examined one Smt. Rizwana Begum (PW-8) (CW-14) -

the Head Mistress of Taaha English Medium School, Ballari.

The said witness has stated that the victim girl was

studying in their School. As per the Admission Register,

the date of birth of the victim girl was

12-07-2003 and that her Admission Number was

29/10-11. Stating that in that regard, she has issued a Crl.A.No.100053/2019

letter, confirming the date of birth of the girl as

12-07-2003 and also issued an Admission Register Extract

to the Investigating Officer, the witness has identified both

of them at Exs.P-13 and P-14 respectively. This witness

was not cross-examined from the accused's side. As such,

the evidence given by PW-1, PW-3 and PW-8, regarding

the age of the victim girl remains un-denied and un-

disputed.

In that regard, the prosecution also has got produced

and marked a medical opinion regarding the age of the

alleged victim girl at Ex.P-15. The said document also

shows that the Doctor at the Vijayanagar Institute of

Medical Sciences, Ballary (VIMS), after examining PW-3

(victim girl) on the date 09-03-2015, has opined that the

age of the girl, as on the said date was between 11 years

and 13 years. Thus, the age of PW-3 - the alleged victim

girl stands proved to be 11 years, 7 months and 19 days,

as on the date of the incident, which was said to have

taken place on the date 01-03-2015. Thus, PW-3 - the Crl.A.No.100053/2019

alleged victim girl stands proved to be minor in her age, as

on the date of the alleged incident.

13. About the alleged incident of rape and

penetrative sexual assault upon PW-3 - the minor victim

girl, the material witnesses who have spoken about the

same are PW-1 (CW-1) - Smt. Shekhan Bee, PW-2

(CW-5) - Sri. Zakir Hussain and PW-3 (CW-2) - the victim

girl.

Admittedly, PW-1 (CW-1) - Smt. Shekhan Bee,

PW-2 (CW-5) - Sri. Zakir Hussain are respectively the

mother and father of PW-3, the alleged victim girl. Both

these witnesses, in their evidence, apart from stating that

PW-3 is their daughter, have also stated that, they know

the family of the accused who reside very near to their

house at a distance of about six houses from their house.

Both of them have also stated that, on the date of

incident, the father of the accused had been to their house

asking for a sum of `10/-, which he had found shortage for

buying mutton to his house. At that time, PW-2, the Crl.A.No.100053/2019

father of the victim girl since had underwent an eye

surgery, was taking rest at home. PW-3 - the victim girl

paid a sum of `10/- to the father of the accused. In the

evening, PW-3 went to the house of the accused, asking

for the return of the said sum of `10/- from the father of

the accused. However, at that time, the accused alone

was in his house and he asked the victim girl to get him a

cup of water. Thus, when she was in the process of

getting him a cup of water in his house, the accused

caught hold of her and closing her mouth and undressing

her, committed rape upon her. After the incident, the

victim girl returned home. It is after hearing from her (the

victim girl), PW-1 took her to the complainant Police

Station and lodged a complaint, which PW-1 has identified

it at Ex.P-1.

PW-1 has further stated that the Police have

enquired her daughter also and have taken the girl along

with her to the Ghouse Hospital, where the Doctor

examined their daughter and collected the cloths worn by Crl.A.No.100053/2019

her. PW-1 has also stated that her daughter i.e. the victim

girl has also given her statement before the Magistrate.

14. PW-3 (CW-2) - Kum. Firdose, the alleged victim

girl, in her evidence also has stated that, on the date

01-03-2015, in the morning at about 10:00 a.m., one

Sri. Jaffar, the father of the accused had been to their

house and had collected a sum of `10/- for purchasing

mutton. He had promised to return the said amount in the

evening. Accordingly, at 6 o'clock in the evening, she had

been to the house of the said Jaffar to collect the said sum

of `10/- from him. However, the accused, who was alone

present in his house, asked her to get him a cup of water

from the water drum. While she was filling the water in a

cup, the accused caught hold of her and tied her eyes and

mouth with a cloth and undressed her. Laying her down,

he committed rape upon her. When she yelled, the

accused taking her cloth wiped the private part of her

body. Thereafter, she returned to her home and narrated

the incident to her parents and then her parents went to Crl.A.No.100053/2019

the accused and questioned him, for which the accused

stated that he did not do anything. It is thereafter, she

joined by her mother (PW.2) went to the police station and

lodged a complaint. She (PW.3) has further stated that

the police sent them to the hospital. She has further

stated that on the next day at the spot shown by her, the

police took photographs while doing panchanama. This

witness has identified the said photographs marked at

Ex.P2 and P3. She has also stated that the police from the

said place collected the cloth used for cleaning, which cloth

was shown by her to the police. The witness has identified

the sweater belonging to her and got it marked at MO.1.

Then, the police produced her before the Magistrate and

got her statement recorded, which statement was

identified by the witness at Ex.P4.

15. All these witnesses were subjected to a detailed

cross-examination from the accused side. However, the

witnesses tried to maintain their original stand even in

their cross-examination also.

Crl.A.No.100053/2019

In the cross-examination of these witnesses, an

attempt was made to show that the accused and his family

were economically self-sufficient, as such, there was no

need for the father of the accused to borrow a sum of `10/-

from the victim or from her family. It is highlighting this

aspect, the learned counsel for the respondent/accused in

his argument submitted that when admittedly the family

members of the accused were earning, there was no need

for them to borrow a sum of `10/- from the family of the

victim. As such, the Special Court has rightly held that the

contention of PW.1 to PW.3 that the father of the accused

has borrowed a sum of `10/- from them is not believable.

16. In the cross-examination of PW.1 to PW.3, it

has been elicited that the mother of the accused was

working as Utensils Cleaner at Shadimahal. PW.1 in her

cross-examination has admitted as true that they were

very poor and all the members in the family of the accused

were earning. However, she has also admitted the

suggestion as true that the mother of the accused brings

the residual food items from the place wherever she Crl.A.No.100053/2019

works. She denied the suggestion that in such

circumstances, father of the accused had no reason to

borrow a sum of `10/- from the family of the victim. PW.2

denied that his family solely runs from the income of his

wife, however, he admitted that all in the family of the

accused are earning members. He also admitted as true

that the mother of the accused works as a Maid Servant

including at Shadimahal. He denied the suggestion that

his wife had borrowed a sum of `20,000/- from the mother

of the accused. PW.3 (CW.2)-the alleged victim girl also in

her cross-examination though admitted that they are

economically poor, and she stated that her father earns for

the family, but denied that her mother is the sole earning

member of the family and stated that her father also

earns. She (PW.3) too admitted that the mother of the

accused was working as Utensils Cleaner at Shadimahal.

Considering this evidence, the Special Court initially

formed and maintained a doubt that when a family of the

victim was economically poor, the question of they lending

a sum of `10/- to the father of the accused and the family Crl.A.No.100053/2019

of the accused being economically not poor, borrowing

such a small amount is not acceptable.

A careful perusal of the evidence of PW.1 to PW.3

would go to show that neither the family of the alleged

victim nor the family of the accused was economically

sound. Had the family of the accused was economically

comfortable, then, probably the mother of the accused

would not have gone to Shadimahal as Utensils Cleaner

and to the other houses as Maid Servant and also bringing

residual food items from the places of work to her house.

The photographs of the house at Ex.P2 and P3, which is

shown to be the house of the accused also gives an

impression that the family of the accused was not

economically in comfortable position. Further, according to

PW.1, borrowing a sum of `10/- from the father of the

accused is only as a deficit amount with him for the

purchase of mutton. It is not that he did not have any

money as such, it is only by the alleged borrowed amount

of `10/-, he intended to purchase the mutton.

Undisputedly, PW.1 and PW.2, the parents of the victim Crl.A.No.100053/2019

girl have called them as Coolies, thus, borrowing a small

articles or small sum of money among the residents in the

locality of the accused and the victim would be a common

factor. As such, the reasoning of the Special Court that

the family of the accused was economically self-sufficient

and had no need to borrow a sum of `10/- from the family

of the victim is not convincing. On the other hand, the

possibility of the accused and the alleged victim's family

borrowing or exchanging the small article and money

would not be an uncommon factor. Therefore, the father

of the accused borrowing a sum of `10/- from the family of

the complainant cannot be disbelieved.

17. The evidence of PW.1 and PW.2 that the

accused committed rape upon their daughter (PW.3) is

admittedly hearsay evidence. It is only after stating that

they heard about the incident from their daughter, both

these witnesses have spoken about the incident. PW.1

being the mother of the alleged victim girl has stated that

as told to her by her daughter, the accused has committed

rape upon her (PW.3). PW.3 also has repeated the same.

Crl.A.No.100053/2019

Thus, according to both these witnesses (PW.1 and PW.2),

they have believed what their daughter has stated

complaining of the accused committing rape upon her.

The alleged victim girl (PW.3) also in her evidence has

stated that when she was filling the drinking water in a cup

to give it to the accused, he caught hold of her (PW.3) and

tying her eyes and mouth with a cloth and laying her

down, raped her. From this, it is clear that PW.1 and PW.2

(Parents of PW.3) stating that their daughter was raped by

the accused was solely based upon what they claim to

have heard from the mouth of their daughter (PW.3).

Even according to PW.1 (mother of PW.3), the

alleged victim girl was aged only 11 years. Neither PW.1

nor PW.2 has anywhere stated that the girl of such an age

particularly, PW.3 was aware as to what an act of rape is.

Neither of them have stated in their evidence about they

eliciting the details of the incident by which they could

arrive at a conclusion that the act of the accused alleged to

have been committed against their daughter (PW.3) was

an act of rape or penetrative sexual assault. Even PW.3 Crl.A.No.100053/2019

also has nowhere stated as to what act the accused did

against her by which she was called it 'rape'. Though it is

not necessary that the witness should always explain the

details of the act completely in a case of rape, however, in

the instant case, when admittedly the alleged victim girl

was aged only 11 years and 7 months as on the date of

the incident, it was required to ascertain her knowledge

about the sexual assault or rape. Even if it is taken that

with the help of the cloth, the accused wiped the private

part on the body of PW.3, still, that evidence itself is not

sufficient to hold that the accused has committed rape

upon her. Therefore, there is all the possibility of the

alleged victim girl not being known as to what is a rape or

a sexual assault.

18. The above analysis gains support in the instant

case for the reason that according to PW.1, the mother of

victim girl (PW.3) after hearing about the incident from her

daughter, undressed her daughter and noticed the injury

and also oozing of the blood from her private organ.

However, PW.2 (father of the victim girl) has specifically Crl.A.No.100053/2019

stated that neither himself nor his wife (PW.1) examined

their daughter (PW.3) after getting her clothes removed.

More importantly, PW.3-the alleged victim girl in her cross-

examination specifically stated that after she revealing

about the incident to her mother (PW.1), she directly took

her to the police station but did not get her (of PW.3)

clothes removed and examined her. Therefore, the say of

PW.1 that after hearing from her daughter, she got

removed the dress worn by her daughter and examined

her body including her private organs appears to be not a

true statement.

19. In addition to the above, the medical evidence

given by PW.7 (CW-11) Dr. Ramaraj, who examined the

victim girl on the same night of the alleged incident at

11.45 p.m. does not support the case of the prosecution to

the required extent. The said witness has stated that in

the examination of the alleged victim girl, he did not notice

any external injury on the body of the victim girl. He has

stated that he collected ten (10) articles from the girl for

the purpose of sending the same for their examination of Crl.A.No.100053/2019

FSL. He has also stated that based on the FSL report, he

has opined that there were no signs suggestive of vaginal

penetration. He has identified his report given to the said

effect at Ex.P11.

The examination record in the form of Pro-forma for

Medico-Legal Examination of survivor of sexual violence

said to have been issued by him was identified by him

(PW.7) at Ex.P10. The said document gives the details of

the examination conducted by him and articles collected by

him during the course of the examination. The said report

shows the absence of marks regarding physical violence

including biting, pinching, violent shaking, kicking, pulling

hair, banging head, dragging etc. He has noticed the

absence of mark of any injury on the person of the alleged

victim girl. He has also recorded in negative on the aspect

of oral sex, forced masturbation, exhibitionism and

ejaculation. With these observations in his report, the

witness in his oral evidence has stated that there were no

symptoms of sexual rape.

Crl.A.No.100053/2019

Pro-forma of Medico-legal examination at Ex.P10 also

shows that the doctor (PW.7) had collected the finger

nails, vulval swab, vulval smear, vaginal swab, vaginal

smear, EDTA blood sample, plain blood sample, brown

colour top, green colour pant and pink colour dupatta of

the victim girl at the time of the examination. According to

PW.9-Smt.Jayashree, Woman Police Constable, all those

ten articles were given to her by the doctor, which she has

shown to the Investigating Officer who collected them by

drawing panchanama as per Ex.P5. According to PW.11-

M.B. Golasangi, the Investigating Officer, he had sent all

those ten articles to the Regional Forensic Science

Laboratory, Kalaburagi (for brevity, hereinafter referred to

as 'RFSL') for their examination and to collect the report.

He has also stated that he got the accused also medically

examined whereat the doctor had collected five articles of

the accused, which he received under panchanama at

Ex.P7 and sent them also to the RFSL. After examining all

those articles, the RFSL has given its report as per Ex.P12.

The said report when perused would go to show that the Crl.A.No.100053/2019

Laboratory noticed the presence of blood stain only on

article No.9, which is shown to be a pant. The presence of

the blood stains was not detected on the pant worn by the

victim girl. However, it did not detect the blood stain in the

dress material either of the victim girl or of the dress worn

by the accused. Further, the FSL did not detect the

presence of seminal stain or spermatozoa in other relevant

articles examined by it including vulval swab, vaginal

swab, dress worn by the girl, pubic hair and penile swab of

the accused. The FSL did not notice the presence of

spermatozoa in vulval smear, vaginal smear and penile

smear. Further, the FSL did not notice the vaginal

secretion in sweater at MO.1, pubic hair, penile swab and

penile smear. Skin tissue was not detected in the finger

nails of the victim girl. Thus, the absence of any

symptoms of the alleged rape which symptoms were

expected to be present in the above articles collected by

the Investigating Officer or any of the articles collected by

the Investigating Officer from the doctor and sent for FSL

report also creates more suspicion in the case of the Crl.A.No.100053/2019

prosecution about the alleged act of rape. In such a

circumstance, it is highly doubtful that PW.3-the alleged

victim girl was aware as to what is rape. Had there really

been an act of rape in the circumstance of the case,

at-least some symptoms like presence of spermatozoa,

seminal stains or vaginal secretion were required to be

present in one way or the other. It is also for the reason

that according to PW.1 to PW.3, immediately after the

incident, the alleged victim girl was taken to the police

station and then to hospital. Thus, within six hours of the

alleged incident, the girl was medically examined. It is

nobody's case that the girl has taken a bath before being

taken to the doctor. As such, the presence of any of the

elements showing the finger towards the act of the sexual

intercourse should have been necessarily present.

However, the absence of the symptoms, signs, marks or

injury either physical or presence of any biological articles

like spermatozoa, semen which could have been detected

by the FSL, the same would create a serious doubt in the

case of the prosecution. Therefore, it is not safe to believe Crl.A.No.100053/2019

that the alleged victim girl was subjected to rape or

penetrative sexual assault by the accused.

In addition to the above, PW.3 in her evidence has

stated that when the accused committed the alleged act

upon her, she has bitten his hand and got herself free from

him. However, there is no medical evidence including in

the medical report of the accused at Ex.P16, which was

marked as a consented document, about the accused

having any bite mark or other mark of resistance on his

body. The doctor has opined in the said report that there

was no external visible injury over the pubic region and

external genitalia. Had the girl resisted the said alleged

act, protested and bitten the hand of the accused, some

mark of injury or scratch should have been found on the

person of the accused. This also enlarges a doubt in the

case of the prosecution.

20. Though as observed by the Hon'ble Apex Court

in several cases including Vijay @ Chinee Vs. State of

Madhya Pradesh reported in (2010) 8 SCC 191 that the Crl.A.No.100053/2019

statement of the prosecutrix if found to be worthy of

credence and reliable, requires no corroboration and the

Court may convict the accused on the sole testimony of

the prosecutrix, the evidence of PW.1 and PW.2 or

PW.3 inspires no confidence that the alleged victim girl was

subjected to an act of rape or penetrative sexual assault.

It is repeated again that the girl was not shown to have

understood as to what is rape. Thus, merely because she

has used the word 'rape', corroborative evidence was

required at least in the form of some external injuries or

physical appearance or favourable report from the FSL.

In the absence of all these, it is not safe to believe that the

alleged victim girl (PW.3) was subjected to rape or

penetrative sexual assault by the accused.

21. About the alleged spot of offence, the evidence

of PW.1 and PW.2 that it was the house of the accused is

only hearsay after their alleged hearing from their

daughter (PW.3). However, PW.3 the alleged victim girl

has stated that it was in the house of the accused. She Crl.A.No.100053/2019

has even stated that she has shown the place to the

police, who drew panchanama on the spot. However, the

said pancha, who was examined as PW.4(CW.4) Saleem

has not supported the case of the prosecution. He denied

that the scene of offence panchanama as per Ex.P6 was

drawn in his presence and any articles much less cloth and

steel glass were seized in his presence. As such, the

evidence of PW.11, the investigating officer that he drew

the scene of offence panchanama as per Ex.P6 is not safe

to believe.

22. The prosecution has not attributed any specific

motive behind the alleged commission of rape. However,

according to PW.1 to PW.3, the father of the accused had

borrowed a sum of `10/- on that day from them, as such,

when PW.3 went to the house of the accused to take back

the said money in the evening, the accused who was alone

in the house has committed the alleged act upon PW.3.

Though the said act of alleged loan of `10/- cannot be a

motive behind the commission of crime and the instances

of rape need not necessarily have a definite or prescribed Crl.A.No.100053/2019

motive always, still, the evidence of material witnesses

more particularly, PW.1 to PW.3 since creates a doubt

about the alleged act of rape or penetrative sexual assault

by the accused, the alleged borrowal of money which was

denied by PW.6-Jaffar, father of the accused goes to the

background.

Similarly, when the material placed before the Court

could not make out a case against the accused for the

alleged offence, the defence taken up by the accused in

the form of suggestions to PW.1 to PW.3 in their cross-

examination that PW.1 had borrowed a sum of `20,000/-

from the mother of the accused and also it was the mother

of the accused, who had paid the installments towards the

price of mobile purchased by PW.1 has made the

complainant to file a false complaint against the accused

also does not get any importance. Thus, it is analsying the

materials placed before it in its proper perspective, since

the Special Court has arrived at a finding holding that the

prosecution has failed to prove the alleged guilt against the Crl.A.No.100053/2019

accused beyond reasonable doubt, we do not find any

reason to interfere in the said finding.

23. Accordingly, we proceed to pass the following:

ORDER

a) The Criminal Appeal stands dismissed as devoid of merits.

b) Registry to transmit a copy of this judgment along with the Special Court records to the concerned Special Court without delay.

c) The Court while acknowledging the services rendered by the learned Amicus Curiae Sri. Abhinandan M Gundawade for the respondent/Accused, recommends an honorarium of a sum of Rs.4,000/- payable by the Registry without any delay.

Sd/-

JUDGE

Sd/-

JUDGE

BMV*/JTR