The State By vs Sheikh Mahammad Shakeel @ Shakeel
2023 Latest Caselaw 3978 Kant

                                                  -1-
                                                        NC: 2023:KHC:22849-DB
                                                             CRL.A No. 1793 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 4TH DAY OF JULY, 2023

                                              PRESENT
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                 AND
                             THE HON'BLE MR JUSTICE G BASAVARAJA
                               CRIMINAL APPEAL NO. 1793 OF 2021


                   Between:

                   The State by Circle Inspector of Police
                   Brahmavar Circle, Udupi District,
                   Represented by the
                   State Public Prosecutor
                   High Court Building
                   Bengaluru-560001
                                                                         ...Appellant
                   (By Smt. Rashmi Jadhav, HCGP)

                   And:

                   1.    Sheikh Mahammad Shakeel @ Shakeel
Digitally signed         Aged about 34 years,
by SRIDEVI S
                         S/o. Abdul Rahiman
Location: HIGH
COURT OF                 R/o. Muniyari House, Mallaru Village
KARNATAKA                Udupi Taluk and District-576113

                   2.    Akbar Bhasha
                         S/o. Gapoor Saheb
                         Aged about 55 years
                         R/o. Near Kumragodu School
                         Belurujaddu Handadi Village
                         Udupi Taluk.
                                                                      ...Respondents
                   (By Smt. Haleema Ameen, Advocate for R1;
                    R2 - served & unrepresented)
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                                    NC: 2023:KHC:22849-DB
                                        CRL.A No. 1793 of 2021




      This Criminal Appeal is filed u/s.378(1) and (3) Cr.P.C.,
praying to grant leave to appeal against the impugned
judgment and order dated 06.03.2021 passed by the Hon'ble
court of Additional District and Sessions Judge- F.T.S.C-1,
Udupi in Spl.C.No.41/2014 acquitting the accused/respondent,
for the offence p/u/s 417, 376(2)(n) of IPC and sec.5(l) r/w
sec.6 of POCSO Act and etc.

     This Criminal Appeal, coming on for admission, this day,
Sreenivas Harish Kumar J., delivered the following:

                        JUDGMENT

Heard Smt. Rashmi Jadhav, learned Government

Pleader on admission of this appeal. Smt. Haleema

Ameen, learned counsel for respondent no.1 is present.

2. The State has preferred this appeal questioning

the acquittal of the respondent for the offences punishable

under sections 376(2)(n) and 417 IPC and section 5(l) r/w

section 6 of POCSO Act.

3. The respondent was charged for the offences

punishable under sections 363, 376(2)(n), 417 IPC and

section 5(l) r/w section 6 and section 18 r/w section 7 of

POCSO Act on the allegation that on 17.6.2014 at 9.15

a.m. the respondent kidnapped PW.2 from a place near

Government Junior College, Brahmavar and took her to a

NC: 2023:KHC:22849-DB CRL.A No. 1793 of 2021

secluded place where he had forcible intercourse with her.

The prosecutrix examined as PW.2 deposed before the

court that on 17.6.2014, the respondent took her forcibly

in a car to a secluded place. When he expressed his

desire to have sexual intercourse with her, she did not

agree and therefore he slapped her and as a result she

lost her consciousness and in that state he had sexual

intercourse with her two times. Further she deposed that

the respondent took her to a place called Belapu near

Kaup and confined her in somebody's house and on the

next day i.e., 18.6.2014, when she was being brought, the

police intercepted them and took her to police station.

PW.1 is the father of the girl and PW.3 is the sister.

4. The trial court is of the opinion that there is no

consistency in the evidence of PW.1,2 and 3 with regard to

the incident of rape on PW.2 and that the medical report

as well as the FSL report also do not lend support to the

evidence given by PW.2. For this reason, the trial court

came to conclusion that the prosecution was not able to

prove its case as regards the offence under sections

NC: 2023:KHC:22849-DB CRL.A No. 1793 of 2021

376(2)(n) and 417 IPC and section 5(l) r/w section 6 of

the POCSO Act. However the trial court recorded

conviction for the offence under section 363 IPC and

section 18 r/w 7 of the POCSO Act.

5. We have perused the evidence of PW.1,2 and 3,

the material witnesses. Though PW.2 has stated about

rape on her by the respondent, when we look at the

statement given by her under section 164 Cr.P.C. before

the Magistrate which is marked as Ex.P.3, she has stated

nothing about rape on her. All that she has stated is that

on 17.6.2014 at 9.15 a.m. when she went to college, the

respondent took her forcibly in a car and then confined her

in somebody's house by tying her hands and closing her

mouth with a plaster. She says nothing about rape on

her. It is true that in Ex.P.7, the doctor has given an

opinion that the girl might have had sexual intercourse,

but this cannot be based to come to a conclusion that the

accused/respondent forcibly subjected the girl to sexual

intercourse. If the statement of the girl made before the

Magistrate is compared with the evidence given by her

NC: 2023:KHC:22849-DB CRL.A No. 1793 of 2021

before the court, we do not find consistency. If really she

has been subjected to intercourse, nothing prevented her

from disclosing the same before the Magistrate. In this

view we are of the opinion that acquittal of the respondent

for the offence under sections 376(2)(n) and 417 IPC and

sections 5(l) r/w section 6 of the POCSO Act is proper. We

do not find good ground to admit. Therefore appeal is

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

sd