Karnataka High Court
State Of Karnataka vs Dilleppa S/O Giriyappa ... on 28 June, 2023
Bench: Ashok S. Kinagi, Venkatesh Naik
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CRL.A No. 100237 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 100237 OF 2018 (A-)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
RANEBENNUR RURAL POLICE STATION,
DIST: HAVERI, THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE, HIGH COURT OF
KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
AND:
Digitally signed
by GIRIJA A
BYAHATTI
Location:
HIGHCOURT
DILLEPPA S/O. GIRIYAPPA MADIVALARA,
GIRIJA A
BYAHATTI
OF
KARNATAKA- AGE: 23 YEARS, OCC: AUTO DRIVER,
DHARWAD
BENCH
Date: R/O: MAIDURA PLOT, TQ: RANEBENNUR,
2023.07.03
13:21:50
+0530
DIST: HAVERI.
...RESPONDENT
(BY SRI. SUNIL S. DESAI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S.378 (1) & (3) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 03.02.2018 PASSED BY THE PRL. DIST.
AND SESSIONS JUDGE AND SPECIAL JUDGE, HAVERI, IN SPL.
S.C.NO.03/2016 AND TO CONVICT THE RESPONDENT/
ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTIONS
363, 366(A), 376, 506 OF IPC AND UNDER SECTION 4 OF
POCSO ACT.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, VENKATESH
NAIK T. J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant - State has filed the present appeal
against the impugned judgment and order of acquittal
dated 03.02.2018, passed in Special S.C.No.3/2016 by the
Principal District and Sessions Judge and Special Judge,
Haveri, acquitting the respondent/accused for the offences
punishable under Sections 363, 506, 366, 376 of IPC and
under Section 4 of the Protection of Children from Sexual
Offences (POCSO) Act, 2012.
Facts of the case:
2. The brief facts of the prosecution case are as
under:
The accused Dilleppa, an Auto driver, was in the
habit of visiting the house of the complainant Sunil
Anjaneyappa Sarathi (PW1) of Gangapur village,
Ranebennur Taluk, in order to give fertilizers to the land,
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in his TATA ACE Goods Auto. Thus, the accused developed
love with the daughter of the complainant, Victim (PW8),
who was aged about 15 years then. PW1 and his family
members came to know about the love affair of accused
and the victim. They advised them not to continue the
same. On 21.07.2013 at about 8.00 pm, the victim was
interacting over phone and she came out of her house and
at that time, accused came there, kidnapped her in his
TATA ACE vehicle from her lawful guardianship, threatened
her to take away her life if she reveals to her family
members, The accused took the victim from Gangapur
village to Ranebennur bus stand and then to Bengaluru,
Sakaleshpur, Davangere and kept her in the house of
PW14 - Ashok at Bengaluru and on 28.07.2013, accused
committed rape on the victim, knowing that she was minor
then, the accused committed sexual assault on the victim.
Therefore, complainant has lodged the complaint against
the accused as per Ex.P12.
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On the basis of the complaint, Ranebennur Rural
Police registered the case in Crime No.119/2013 and
submitted FIR to the Magistrate and to their higher
authorities as per Ex.P22 (FIR). Later, during the course
of investigation, the Investigating Officer secured the
victim and arrested the accused. They were undergone
medical examination. Victim gave her statement under
Section 164 Cr.P.C. before the Magistrate. After
completion of investigation, Investigating Officer filed
charge sheet against the accused for the offence
punishable under Sections 363, 366A, 376 and 506 of the
IPC and under Section 4 of the POCSO Act, 2012. After
securing the presence of the accused before trial Court,
charge was framed against accused, he pleaded not guilty
and claimed to be tried, case was posted for evidence.
In order to prove charges against the accused, the
prosecution in all examined 21 witnesses as PWs. 1 to 21
and got marked 26 documents at Exs.P1 to P26 and
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material objects as M.Os.1 to 7. On behalf of the defence,
6 documents were marked as Exs. D1 to D6.
After completion of evidence on behalf of the
prosecution, statement of accused was recorded by the
trial Court as contemplated under Section 313 Cr.P.C. The
accused denied all the incriminating evidence appearing
against him in the prosecution evidence, but he did not
lead any defence evidence.
3. Based on the oral and documentary evidence,
the trial Court framed the following points for
consideration:
I. Whether the prosecution proves beyond all
reasonable doubt that on 21.07.2013 at about
8.00p.m., at Gangapura village of Renebennur Tq.
While the victim came out of the house, the
accused kidnapped her from her lawful
guardianship and thereby committed an offence
punishable u/s.363 IPC?
II. Whether the prosecution further proves beyond all
reasonable doubt that on the above said date, time
and place, the accused committed criminal
intimidation by threatening the victim to take away
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her life and thereby committed an offence
punishable u/S.506 of IPC?
III. Whether the prosecution further proves beyond all
reasonable doubt that on the above said date, time
and place, the accused by inducing the victim
kidnapped the victim and took her to Bengaluru,
Sakaleshpura and the to Davanagere and thereby
committed an offence punishable u/S.366 of IPC?
IV. Whether the prosecution further proves beyond all
reasonable doubt that on the above said date, time
and place, the accused kidnapped the victim and
took her to Bengaluru and on 28.07.2013 in the
house of CW.16 the accused committed rape on her
and knowing that the victim is still minor,
committed sexual assault on her and thereby
committed an offence punishable u/S.376 IPC and
u/S.4 of protection of children from Sexual offences
Act, 2012?
V. What order ?
The learned Sessions Judge, after considering the
entire oral and documentary evidence on record, recorded
a finding that the prosecution has failed to prove that on
21.07.2013 at 8.00 pm, accused kidnapped the victim
from her lawful guardianship at Gangapur village of
Ranebennur Taluk, took her to Ranebennur, Bangaluru,
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Davanagere and Sakaleshapur, threatened her with dire
consequence to take away her life, if she reveals the said
fact to her family members, induced the victim and on
28.07.2013, in the house of PW14, accused committed
rape on the victim knowing that she was minor then and
thus committed sexual assault on her. The trial Court
acquitted the accused for the alleged offences holding that
the prosecution failed prove its case beyond reasonable
doubt. Aggrieved by the judgment of acquittal the
appellant-State has preferred this appeal.
4. We have heard the arguments advanced by the
learned Addl. SPP for the appellant - State and the learned
counsel for the respondent-accused.
Arguments advanced by the learned Addl. SPP
5. Sri. V. M. Banakar, learned Addl. SPP for the
appellant-State, contended that the judgment and order of
acquittal passed by the trial Court is contrary to law, facts
and evidence on record; PW6 - complainant and father of
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the victim, PW1 - mother of the victim and PW8 - victim,
have specifically stated about the incident and the manner
of kidnapping the victim from her lawful guardianship;
PW5 - Subhas Gangannavar and PW9 - Somappa Nayak,
who are owners of neighboring lands of the complainant,
had seen the accused kidnapping the victim on the date of
incident; But the trial Court has not properly read and
appreciated their testimony in a proper perspective. The
learned Addl. SPP further contended that, PWs. 4 and 6
being the parents of victim have deposed before the Court
regarding the sexual assault committed by the accused as
narrated by the victim girl before them; their evidence is
natural as they are natural parents of victim and the same
is admissible under Section 6 of the Indian Evidence Act.
The learned Addl. SPP further submitted that, the victim -
PW8 was minor girl at the time of incident; in her evidence
she has categorically stated that the accused kidnapped
her from her house, took her to Ranebennur and
Bengaluru from 22.07.2013 to 25.07.2023, where the
accuse kept the victim in his relatives house at
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Sakaleshapur, Davangere and Bengaluru and thereafter on
26.07.2013 to 30.07.2013, accused kept the victim in the
relatives house of Sakaleshapur, where he committed
sexual assault on the victim without her will and wish; But
the trial Court has not read the evidence of PW8 on its
proper perspective. Learned Addl. SPP further submitted
that, PW18 is the Officer of BEO office, Ranebennur, who
issued Ex.P13 - Birth Certificate, to show that the date of
birth of the victim is 09.08.1998 and the date of incident
was 21.07.2013; Hence she was minor then (16 years),
but the trial Court has not properly appreciated the oral
testimony of PW18 and Ex.P13 - school certificate issued
by PW18; PW17 is the doctor who examined the victim girl
on 06.08.2013 and issued the medical certificate as per
Ex.P20 and opined that there is rupture of hymen and the
victim is subjected to sexual assault. The trial Court has
not appreciated the evidence of PW17 and the medical
certificate; The trial Court has not properly appreciated the
evidence of official witnesses, such as Police Officers,
doctor, Officer from the BEO office, but acquitted the
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accused by giving the benefit of doubt to him. The
learned Addl. SPP further submitted that, the trial Court
has acquitted the accused on the ground that, while
proceeding from Ranebennur to Davanagere, Bengaluru
and Sakaleshpur, the victim has not protested or made
hue and cry to secure the help of public, to get herself
released from the clutches of the accused; Further, the
trial Court observed that the victim on her own will and
wish went along with the accused, but the said reasoning
is not sustainable as the victim has clearly stated before
the trial Court that, because of the life threat given to her
by the accused, she did not raise her voice, but the said
aspect has not been considered by the trial Court. The
learned Addl. SPP further submitted that, PW8 - victim has
categorically stated regarding the act of sexual assault
committed by the accused on her and the medical officer
has categorically stated that there is rupture of hymen and
the victim was subjected to sexual assault, which was
sufficient to convict the accused since the same is truthful
and natural evidence. The learned Addl. SPP relied upon
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the decisions of the Hon'ble Apex Court in the case of
Santosh Bhai Vs. State of Orissa reported in 2014 (4)
Crimes 226 and in the case of State of Bihar Vs. Raj
Bellana Prasad reported in (2017) 2 SCC 178. On
these grounds, learned Addl. SPP prayed to set aside the
judgment of acquittal and also prayed to convict the
respondent/accused for the offences punishable under
Sections 363, 366A, 376 and 506 of the IPC and Section 4
of the POCSO Act, 2012.
Arguments advanced by the learned counsel for the
respondent/accused
6. Per contra, Sri. Sunil S. Desai, learned counsel
for the respondent/accused sought to justify the impugned
judgment and order of acquittal and contended that all the
prosecution witnesses have not supported the case of the
prosecution; PW8 had been to various places with accused
persons voluntarily and during the relevant period, she
was loving the accused and therefore, the alleged offences
does not attract; Even considering both oral and
documentary evidence on record, the trial Court has
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rightly acquitted the accused and the same is just and
proper; This Court cannot interfere with the same under
the provisions of Section 374(2) of Cr.P.C. Therefore, he
sought to dismiss the appeal.
Points for consideration:
7. After bestowing our anxious consideration to
the rival contentions raised at the bar and perusing the
entire materials including the original records, the points
that would arise for our consideration in this appeal are:
i. Whether the prosecution has made out any case
for interference with the impugned judgment and
order of acquittal, acquitting the accused for the
offences punishable under Sections 363, 366A,
376 and 506 of the IPC and Section 4 of the
POCSO Act, 2012, in the facts and circumstances
of the case?
ii. What order or decree?
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Re: Point No.1
8. In order to re-appreciate the oral and
documentary evidence on record, we feel it just and
necessary to have cursory look on the evidence of the
prosecution witnesses and the documents relied upon by
the prosecution.
PW1 - Vasanagouda Gangannavarm, is the witness to
the spot mahazer. He deposed in his evidence that, he
knows the complainant and the victim and her family
members; About three years ago prior to the date of
recording his evidence, Ranebennur Rural Police came to
their village, PW1 - Sunil shown the spot to the Police,
where the accused kidnapped the victim girl; Hence the
police prepared the spot panchanama and sketch as per
Exs. P1 and P2 and also took the photographs as per
Exs.P3 and P4. In the cross-examination, he admits that,
he cannot say the schedule of the alleged spot and
mahazer was conducted in between 6.00 pm to 9.00 pm
and rest of the things are denied by him.
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PW2 - Suresh Solabannavar, is witness to the seizure
mahazer Ex.P5. In his evidence, he has stated that he do
not know PW5 - complainant and he do not know the fact
of kidnapping the victim by accused. According to PW2,
about one year prior to the date of recording his evidence,
the police came near Basaveshwara Agrotech Company,
Ganagapura of Ranebennur, where the police seized the
TATA ACE vehicle bearing registration No.KA 27/A 3724
and took the photograph as per Ex.P6. In the cross-
examination he admits that he cannot say the date of
seizure of the vehicle by the police; He do not know the
contents of Ex.P5 - mahazer and he affixed his signature
in the Police Station.
PW3 - Kenchappa Jangari, witness to the spot
mahazer. In his evidence he has stated that he has
witnessed to Exs.P7 to P9 mahazers, but he turned hostile
to the case of the prosecution.
PW4 - Smt. Vidya Sarathi, is the step mother of the
victim and second wife of the complainant (PW6). In her
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evidence she has stated that, the first wife of the
complainant by name Smt. Savitri died about 13-14 years
ago and thereafter the complainant Sunil married her and
she got two children; At the time of the incident, the
victim was aged about 16 years and she was studying in
IX standard at Ganagapura High School; She knows
accused Dilleppa, who is the driver of TATA ACE Auto
Rickshaw and he was supplying fertilizers, seeds etc., to
the house of the complainant; She further deposed that,
the victim was studying in the Government High School at
Gangapur and the said school is in a distance of 1 km from
Ganagapura village; Hence the victim while going to the
school and returning from the school, accused was
harassing her, interacted with her. In this regard, the
victim informed the complainant and PW4; Therefore they
advised the accused and the victim; She further deposed
that, about two years ago at 7.00 pm, complainant PW4
and victim were in the house; at that time, the victim was
interacting in mobile phone and she went outside as there
was no network in the house; even after 20 minutes she
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did not return home; thus the complainant PW4 her
mother-in-law searched her, but she heard the hue and
cry raised by the victim from some distance, she saw
goods vehicle and the victim went in the said vehicle;
there were 7-8 persons in the said vehicle; she saw
accused in the said vehicle; Therefore, the complainant
lodged the complaint to the Ranebennur Rural Police
Station. After 15-20 days of the incident, police informed
the complainant and PW4 about tracing of accused and
victim and hence they lodged complaint to the police.
PW5 - Subhash Gangannavar and PW9 - Somappa
Naik are stated to be the owners of adjacent land owners
and they have deposed before the Court that, at the time
of alleged incident they were in their agricultural fields and
on hearing hue and cry near the house of the complainant,
they saw moving of vehicle and with the help of torch light
they saw the accused, who took the victim in his TATA
ACE vehicle. Accordingly, they informed the incident to
PW6 - complainant and his family members. In the cross-
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examination of PW5, he has admitted that, he is a M.A.
graduate, but not completed his LL.B degree. They further
admits that, the farm house of complainant is situated in
the agricultural land and there cannot be any street light
or road facility to his house and at the time of alleged
incident, there was no street light facility to enable the by
passers to see as to who were all passing in the vehicle.
According to PW5, victim was in the backside of the
vehicle and in all 7-8 persons were there in the vehicle; He
also admits that the accused was driving the vehicle and
victim was in the backside of the vehicle.
PW6 - Sunil Sarathi, is the complainant and father of
the victim. In his evidence, he has stated that the incident
of kidnap was occurred between 7.30 pm and 8.00 pm in
the night and in all 7-8 persons were there in the vehicle.
He further stated that, the victim (PW8) is his daughter
and he had two wives; His first wife was Savitri, who is
none other than the mother of the victim; Savitri died
about 13-14 years ago; After the death of Savitri in the
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year 2001, he married Vidya (PW4) and they are living in
Anaveri village in his farm house. He further deposed
that, his farm house is constructed in 20 acres of land and
there are no neighboring houses near his house; He
knows the accused Dilleppa, who was driving TATA ACE
vehicle and who was supplying pesticides and seeds and
he is the distant relative of PW6, who was oftenly visiting
the house of PW6; During July, 2013, victim was aged
about 16 years; At that time, accused was insisting the
victim to marry him, but his daughter was denying to
marry him; Therefore, on 21.07.2013, between 7.30pm
and 8.00 pm, when PW8 was interacting in mobile phone
and as there was no network in the house, she came out
from the house, accused took her in his TATA ACE vehicle
and there were 7-8 persons in the vehicle; At that time,
PWs.5 and 9 came to the house of PW6 and they informed
that the accused took the victim in his vehicle and they
saw both of them in their torch light. Later, he went to
the police station and lodged the complaint as per Ex.P12
and after 7-8 days of the complaint, police secured the
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victim and accused and enquired with the victim; She
revealed that, soon after her kidnap, accused took her to
Ranebennur and later to Sakaleshpura, where accused had
sexual assault on her. He further stated that, the police
visited the spot and prepared panchanama as per Ex.P1
and police also seized Tata ACE vehicle under Ex.P5.
PW7 - Basavaraj Allalli is witness to the spot
panchanama (Ex.P7). He turned hostile to the case of the
prosecution.
PW8 - is the victim in this case. In her evidence she
has stated that, PW6 - Sunil is her father, PW4 - Smt.
Vidya is her step-mother and she was studying in SSLC at
Gangapur village during 2013 and her date birth is
09.08.1998; Her family was residing at the farm house
situated at a distance of 2 km from Gangapur village;
accused is her distant relative, who was supplying
pesticides and seeds for agricultural operation; He came
into contact with the victim during the year 2012 and he
was loving her; This fact came to the knowledge of her
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family members and her family members advised him;
According to the victim, on 21.07.2013 at 7.30 pm, she
was in her house and there was no electricity in the
house; At that time, a phone call came and she came out
of the house due to network issue inside the house; At
that time, accused was standing in front of her house and
he had parked his TATA ACE vehicle at a distance from her
house; The accused forcibly took her in the TATA ACE
vehicle and she raised hue and cry; At that time, accused
threatened her to eliminate her family members, if she
raised hue and cry; One Subhash (PW5), a friend of her
father saw the victim and accused together in the TATA
ACE vehicle; Later they went to Ranebennur bus stand in a
separate vehicle; Later they went to Bengaluru and were
residing in the house of PW12 - Hanumanthappa for four
days; Later accused took her to Sakaleshwapur, where
they stayed for seven days in the house of PW13 - Suma
and PW14 - Ashok, where accused have had sexual
intercourse with the victim against her will; Later accused
and victim came to Davanagere and they stayed in the
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house of the aunt of accused PW10 - Neelamma Madiwalar
for a period of three days and at that time, she came to
know that her father lodged complaint in Ranebennur
Police Station and hence PW10 - Neelamma brought
accused and victim to Ranebennur and later her parents
came and took her and accused to Ranebennur Rural
Police Station, where the police recorded her statement,
sent her for medical examination and seized M.Os.1 to 7.
Later police took her to Ranebennur JMFC Court, where
she gave her statement to the Magistrate under Section
164 Cr.P.C; Later accused took her to the house of PW12
- Hanumantappa at Bengaluru, where they conducted
mahazer as per Ex.P7, took photograph as per Ex.P9 and
sketch as per Ex.P10 and later they took her to
Sakaleshpur and Davanagere.
PW8 - victim was undergone intensive cross-
examination by the counsel for the accused. In the cross-
examination she has categorically admitted that, accused
is her distant relative; Accused came into contact with the
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victim through one Kavita, cousin of accused, who was
friend of the sister of victim by name Varsha; She visited
the house of said Varsha and hence the accused also came
into contact with the victim during this period. She further
admits that, she do not know the number of her mobile
phone; on 21.07.2013 at 7.30 pm, accused called over
phone and as soon as accused was found in front of her
house, she left her house by interacting in phone. She
further admits that, accused and victim came to
Ranebennur bus stand at about 8.00 or 8.30 pm and there
is a police station in Ranebennur bus stand, but at that
time she did not raise hue and cry; As soon as they
reached Bengaluru, at that time also she did not raise hue
and cry; Further she did not raise hue and cry in
Davanagere as well Sakaleshpur; She admits that from
Bengaluru to Sakaleshpur and from Sakaleshpur to
Davanagere, they traveled in public transport, but she did
not raise hue and cry. She further admits that, her father
completed LL.B degree and doing legal profession,
however, this witness states that her father is not a
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practicing advocate. The victim further admits that, she
wrote love letters as per Ex.D3 to the accused.
PW9 - Somappa Naik, is the neighboring land owner,
has deposed in line with PW5 - Subhash.
PW10 - Smt. Neelamma, is the aunt of accused and
resident of Davanagere. In her evidence, she has stated
that accused is the son of brother of her husband and she
never saw the victim with the accused, he never brought
the victim to her house and she never gave any statement
before the police. Therefore, she turned hostile to the
case of the prosecution.
PW11 - Prakash in his evidence has stated that, the
victim and her father are his relatives; He came to know
that the victim and accused eloped and during that period,
he saw accused and victim in Ranebennur and hence
informed the said fact to PW6 - Sunil and later they went
to police station and gave statement before the police.
PW11 has undergone intensive cross-examination. In the
cross-examination, PW11 has admitted that, since one
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year prior to 2013, he was not aware about the love affair
of accused and victim; He is not aware about any advice
given to accused by the family of victim; He admits that
accused hails from poor family and PW6 - Sunil is a rich
man. PW11 admits that, PW6 Sunil is his uncle. He
denied the suggestion that the victim was loving one
Rudresh, who was working in their house and PW6 kept
the victim in Mumbai in the house of their relative.
PW12 - Hanumantappa Madiwalar is the resident of
Bengaluru, where accused brought the victim to their
house. But PW12 turned hostile to the case of the
prosecution.
PW13 - Suma is the wife of PW14 - Ashok, who is the
relative of accused and resident of Sakaleshapur, where
accused brought the victim in their house. PW13 turned
hostile to the case of the prosecution.
PW14 Ashok is the husband of PW13 and relative of
accused. He also turned hostile to the case of the
prosecution.
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PW15 - Ravikumar Kabbar is the car driver, who
accompanied Investigating Officer to Bengaluru,
Sakaleshapur, Davanagere and Ranebennur, for the
purpose of conducting mahazer. He turned hostile to the
case of the prosecution.
PW16 - Dr. Shivayogi Gadad, is the Medical Officer of
Government Hospital, Davanagere, who examined the
accused and issued Ex.P19 - medical report about the
competency of the accused to do sexual act.
PW17 - Dr. Bharati S. G, is the Medical Officer of C.G
Government Hospital, Davanagere. She has stated that
on 06.08.2013 at 9.30 pm, she examined the victim and
issued the medical report as per Ex.P20. PW17 further
deposed that, on examination of the victim, she found that
the hymen was absent; There were possibilities of sexual
activities. In the cross-examination she admits that if the
victim was used the bicycle for going to school, there were
every possibilities of tearing of hymen.
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PW18 - Shivaraj Simikeri is the Officer at BEO Office,
Ranebennur, who issued birth certificate of the victim
(PW8) as per Ex.P13.
PW19 - Shashidhar is the PSI of Haveri Rural Police
Station, who seized TATA ACE vehicle in Ex.P5 -
panchanama and received Ex.D3 - letter from PW8.
PW20 - Jayappa Masanagi is the ASI of Hansabhavi
Police Station. He received the complaint at Ex.P12 and
registered the FIR at Ex.P22 and conducted spot
panchanama (Ex.P1) and handed over further
investigation of the case to his higher authorities.
PW21 - K. R. Nagaraj is the Investigating Officer,
who conducted investigation and filed Charge Sheet
against accused.
On the basis of the above evidence, the trial Court
proceeded to acquit the accused.
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Consideration
9. Having re-appreciated the entire oral and
documentary evidence on record, it appears that PW1 -
Vasanagouda witnessed to spot mahazer Ex.P1 and the
place of kidnap. He has deposed that the police have
conducted panchanama where the victim was kidnapped
as per Ex.P1. PW2 - Suresh, who is the seizure mahazer
witness of TATA ACE vehicle (Ex.P5) and PW3 -
Kenchappa, who is the witness to the spot panchanama
(Ex.P7) prepared at Sakaleshpura and seizure
panchanama (Ex.P8), wherein M.Os. 1 to 7 were seized in
their presence, have turned hostile to the case of the
prosecution.
10. PW7 - Basavaraj Allalli also accompanied PW3 -
Kenchappa and he is also a witness to Exs. P7 and P8 spot
and seizure mahazers and turned hostile to the case of the
prosecution.
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11. PW10 - Neelamma, is the aunt of accused and
she is the resident of Davangere, in whose residence the
accused alleged to have kept the victim, has also turned
hostile to the case of the prosecution.
12. PW12 - Hanumantappa, who is the resident of
Bengaluru, in whose residence the accused alleged to have
kept the victim, has also turned hostile to the case of the
prosecution.
13. PW13 - Smt. Suma and her husband PW14 -
Ashok, who are the relatives of the accused, are the
resident of Sakaleshpura, in whose residence the accused
alleged to have kept the victim, has also turned hostile to
the case of the prosecution.
14. PW15 - Ravikumar, who accompanied the
Investigation Officer for conducting mahazers at
Bengaluru, Sakaleshpura and Ranebennur have turned
hostile to the case of the prosecution.
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15. Now, the evidence of PWs.4 to 6, 8, 9 11 and
16 to 21 are available. In this regard, it is relevant to
examine the evidence of PW4 - Vidya, the step mother of
the victim, PW5 - Subhash, neighboring land owner, PW6 -
father of the victim, PW8 - victim, PW9 - Somappa,
neighboring land owner of PW6 and PW11 - Prakash, who
saw the accused and victim together in Ranebennur and
later he informed the same to PW6.
16. On perusal of the complaint (Ex.P12), the
incident of kidnap was occurred at 8.00 pm at Gangapur
village of Ranebennur Taluk. On perusal of the evidence
of PW4 - Vidya, she has stated that, at 7.00 pm, her
daughter was kidnapped. Insofar as the presence of
accused is concerned, PW4 has stated that, in all 7 to 8
persons were there in the vehicle. She further stated that,
accused was driving the vehicle and victim was in the
backside of the vehicle. As per the evidence of PW6 -
Sunil, the incident of kidnap was occurred between 7.30
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pm and 8.00 pm and in all 7 to 8 persons were there in
the vehicle.
17. On perusal of the evidence of victim, i.e.,
P.W.8, she has categorically stated that on 21-7-2013, at
8-00 P.M., she came out of the house, at that time,
accused came in his TATA ACE vehicle, took her in his
vehicle, then took her to Ranebennur, and later he took
the victim to the house of PW12 - Hanumanthappa at
Bengaluru, however, PW12 - Hanumanthappa has turned
hostile to the case of the prosecution. PW8 further
deposed that, accused took her to Sakaleshpura, in the
house of PWs. 13 and 14, where he alleged to have had
sexual intercourse with her forcibly. In this case, PWs.13
and 14 have turned hostile to the case of the prosecution.
PW8 further stated that, accused also took her to the
house of PW10 - Neelamma at Davanagere and later
PW10 Neelamma brought them to Ranebennur. But in this
case, PW10 has also turned hostile to the case of the
prosecution.
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18. In order to corroborate the oral testimony of
P.W.8, none of the independent witnesses or the
circumstantial witnesses, where accused kept her and
have had sexual intercourse with her, have supported her
oral testimony, except her step mother PW4 - Vidya and
her father PW6 - Sunil.
19. On perusal of medical evidence, PW17 -
Dr.Bharati has stated that, on 06.08.2013, at 9.30 pm,
she examined PW8 victim and she conducted medical
examination and she came to know that, hymen was
absent; Therefore, there was possibility of sexual activity.
But in the cross-examination, PW17 has admitted that, if
the victim had used bicycle for her school, hence while
riding the bicycle, there were possibility of tearing the
hymen. On perusal of the evidence of PWs.4, 6 and 8, it
reveals that, the distance between farm house of PW4 and
the school is more than 2 kms and therefore, possibility of
tearing hymen due to riding of bicycle cannot be
discarded. The trial Court observed that, even hymen was
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absent due to the sexual act with the accused, it was a
consensual act from both sides, therefore, for such act
accused alone cannot be blamed. In this regard, the trial
Court has much gave reliance on Ex.D3 statement of PW8
- victim, Exs.D4 and D5 - letters, and Ex.D6 - statement
of the victim and based on these documents, the trial
Court has held that, it is consensual sex between accused
and the victim.
20. On perusal of the evidence of PW8 (victim), it
appears that, she has deposed as if the accused being the
stranger had kidnapped her, took her to Bengaluru,
Sakaleshapura and Davanagere and had sexual
intercourse with her against her will. On the contrary, as
per the evidence of PW6 - Sunil (father of the victim), one
year prior to the alleged incident, there was yet another
similar incident between the parties and on 15.08.2012,
victim went with the accused and both have been traced
by PW6 and the ASI of Ranebennur Police Station in
Arasinahalli of Huvina Hadagali Taluk and on that day, in
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spite of their best efforts, the victim and accused were
escaped and on 16.08.2012, both were appeared in
Ranebennur Police Station, and in this regard, PW6 did not
lodge any complaint. Hence, considering this aspect of the
matter, the trial Court observed that, victim and accused
were in love with each other and as against the desire of
family members, the victim went out of her house and
moved with the accused here and there and such material
aspect has not been whispered either by the victim - PW8
or her step mother PW4 - Smt. Vidya. It clearly
establishes that, PW8 and her parents PWs.4 and 6 are not
disclosing true facts before the Court and they have
concealed the same. On the contrary, from perusal of
Exs. D3, D4 and D6 and the admission of father of victim -
PW6, it establishes that, accused and victim were very
much fell in love and as against the desire of her family
members, PW8 was moving on hand with the accused and
she was moving behind the accused and even if there was
any incident of both moving from their house on
21.07.2013, it was a joint collective act of the victim and
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accused and for such voluntary act, accused alone cannot
be blamed.
21. In cases concerning the offences under POCSO
Act, sheet anchor of the arguments made on behalf of
State is presumption that operates against accused under
Section 29 of the POCSO Act. It is also contended that in
cases pertaining to POCSO Act, as contended in the
present case by learned Addl. SPP on behalf of the
appellant-State, court has to presume that accused has
committed the alleged offence for which he is charged
under the said Act, unless contrary is proved. On this
basis, it was submitted on behalf of the appellant-State
that court has to presume that accused has committed the
offence for which he is charged under the said Act, unless
the contrary is proved. On this analysis, it is contended on
behalf of the State that it is for accused to have proved
contrary and burden was entirely upon him to prove his
innocence, which he had failed to discharge.
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22. In light of aforesaid contention raised by the
State, it is necessary to examine the effect of presumption
arising under Section 29 of POCSO Act and the manner in
which accused can rebut such presumption. Section 29 of
the POCSO Act reads as follows:
"Section 29 - Presumption as to certain
offences - Where a person is prosecuted for
committing or abetting or attempting to
commit any offence under Sections
3, 5, 7 and 9 of the Act, the Special Court
shall presume, that such person has
committed or abetted or attempted to
commit the offence, as the case may be,
unless the contrary is proved."
23. Perusal of the above provision does indicate
that it is for the accused to prove the contrary namely, he
has not committed or abetted the commission of an
offence under section 3, 5, 7 and 9 of the POCSO Act and
in case he fails to do so, presumption would operate
against him leading to his conviction under the provisions
of the Act. It cannot be disputed that no presumption is
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absolute and every presumption is rebuttable. It cannot be
countenanced that presumption under Section 29 of the
Act is absolute. It would come into operation only when
prosecution is first able to establish the fact and that
would form the foundation for presumption under Section
29 of the Act to operate. Otherwise, all the prosecution
would be required to do, is to file a charge-sheet against
the accused under the provisions of the said Act and then
claim that evidence of prosecution witness would have to
be accepted as gospel truth and entire burden would be on
the accused to prove to the contrary. Such a position of
law or interpretation of the presumption under Section
29 of the Act cannot be accepted as it would clearly violate
the constitutional mandate and no person can be deprived
of liberty, except in accordance with the procedure
established by law.
24. In the case of Sachin Baliram Kakde Vs.
State of Maharashtra (2016 ALL MR [Cri] 4049), the
Bombay High Court in the context of presumption under
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Section 29 of the POCSO Act after quoting the said
provision has held as follows:
"17. Thus, when a person is prosecuted for
commission of the offence specified in the said
section, the court is required to presume that the
said person has committed the said offence unless
the contrary is proved.
18. The presumption, however, cannot be said to
be irrefutable. In-fact, no presumption is
irrebuttable in law, as this cannot be equated with
conclusive proof. The provisions of Section 29 of
the POCSO Act mandates the court to draw the
presumption unless contrary is proved.
19. One has to keep in mind, as expressed by an
eminent jurist that presumptions are bats in law,
they fly in twilight but vanish in the light of facts."
25. In the matter of Subrata Biswas & Anr. Vs.
State (2019 SCC ONLINE CAL 1815) it has been held
as under:
"21. I am not unconscious of the statutory
presumption engrafted in Section 29 of the POCSO
Act which reads as follow:-
"Presumption as to certain offences.-
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Where a person is prosecuted for committing or
abetting or attempting to commit any offence
under sections 3,5,7 and section 9 of this Act, the
Special Court shall presume, that such person has
committed or abetted or attempted to commit the
offence, as the case may be, unless the contrary is
proved".
22. The statutory presumption applies when a
person is prosecuted for committing offence
under Sections 5 and 9 of the Act and a reverse
burden is imposed on the accused to prove the
contrary. The word "is prosecuted" in the aforesaid
provision does not mean that the prosecution has
no role to play in establishing and/or probablising
primary facts constituting the offence. If that were
so then the prosecution would be absolved of the
responsibility of leading any evidence whatsoever
and the Court would be required to call upon the
accused to disprove a case without the prosecution
laying the firm contours there of by leading
reliable and admissible evidence. Such an
interpretation not only leads to absurdity but
renders the aforesaid provision constitutionally
suspect. A proper interpretation of the said
provision is that in a case where the person is
prosecuted under Section 5 and 9 of the Act (as in
the present case) the prosecution is absolved of
the responsibility of proving its case beyond
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reasonable doubt. On the contrary, it is only
required to lead evidence to establish the
ingredients of the offence on a preponderance of
probability. Upon laying the foundation of its case
by leading cogent and reliable evidence (which
does not fall foul of patent absurdities or inherent
probabilities)the onus shifts upon the accused to
prove the contrary. Judging the evidence in the
present case from that perspective, I am
constrained to hold that the version of the victim
(PW-1) and her mother (PW-2) with regard to twin
incidents of 24th March, 2016 and 18th April, 2016
if taken as whole, do not inspire confidence and
runs contrary to normal human conduct in the
backdrop of the broad probabilities of the present
case."
23. Hence, I am of the opinion that the evidence
led by the prosecution to establish the primary
facts suffer from inherent contradictions and
patent improbabilities particularly the inexplicable
conduct of the victim herself. One part of the
prosecution case improbabilises the other part to
such an extent that no man of reasonable
prudence would accept the version as coming from
the witnesses. Hence, I am of the opinion that the
factual matrix of the case does not call for
invocation of the aforesaid statutory presumption
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so as to convict the appellant on the charges
levelled against him."
26. In the case of Sitaram Das vs. State Of West
Bengal (2020 SCC ONLINE CAL 522) it has been held
as under:
"29. Let us now address the applicability of
Section 29 of the POCSO Act dealing with
availability of presumption to be attracted to
against the accused/appellant, in the given set of
facts.
30. Most of the witnesses during trial either being
declared hostile to prosecution, or not having
rendered desired support to the prosecution
version, shown in FIR, for the reasons ascribed in
the judgment, learned Trial Judge thought it
prudent to make the presumption applicable
against the accused person, available under
Section 29 of the POCSO Act. The principal thrust
of this appeal was the imperfect application of
Section 29 of the POCSO Act dealing with
presumption in a case, where victim herself had
given a go-by to the persecution story developing
a separate story in her own version, contrary to
the case set up in F.I.R, and subsequently in her
164 statement. The evidence adduced by the
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prosecution irresistibly indicates one and only
important feature that the foundational evidence
with respect to the offence charged has not been
led in the instant case. It would be most
improper, if the presumption available in Section
29 of the POCSO Act is straightway made
applicable in a case even in absence of
foundational evidence being led by prosecution.
As has already discussed that besides medical
evidence, there was no other evidence in making
out a case, either of rape or aggravated sexual
penetrative assault, and that medical evidence
cannot be considered to be conclusive in sense in
the given set of facts, so in the absence of proof
of foundational evidence corresponding to the
charges framed in this case against the accused
person, there hardly left any circumstances for
making any application of presumption available
under Section 29 of the POCSO Act. The words
appearing in Section 29 of the POCSO Act "Where
a person is prosecuted" embraces a complete
exercise on the part of the prosecution to prove
the prime allegation set out in F.I.R.
corresponding to the charge framed against the
accused person during the course of trial, which is
of course rebuttable subject to developing a
strong case, contrary to that established by
prosecution during cross- examination by
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defence. When a different story is developed
during trial by the victim prosecutrix, contrary to
the story of prosecution, and that developed story
received ratification from the near relatives of the
victim prosecutrix, in the given facts situation, it
stands to reasons that despite having been
provided with sufficient opportunity to prove the
case, prosecution failed to probalise the incident
complained of in the F.I.R."
27. Keeping the aforesaid position of law in mind,
evidence of prosecution witnesses in the present case, will
have to be examined to find out whether prosecution has
established the presumption arising under Section 29 of
POCSO Act.
28. PW6 is the complainant and father of victim girl
(PW8) and PW4 - Smt. Vidya is the step-mother of the
victim girl (PW8). They are eyewitnesses to the incident of
kidnap and saw the accused, who was kidnapping their
daughter victim in TATA ACE vehicle. But neither PW4 nor
PW6 followed accused and prevented him from
kidnapping. No efforts have been made by them. Their
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demonor at the time of kidnapping of victim by accused,
creates doubt as duty bound father and mother kept quite
while kidnapping their daughter, which is unnatural one.
29. Insofar as an offence under Section 376 of IPC
is concerned, except the evidence of PW8 - victim, the
evidence of PW4 and PW6 is in the nature of hearsay
evidence. PW4 and PW6 have claimed that victim had told
them about the alleged act perpetrated by the accused
soon after her kidnap. But, their evidence is only hearsay
evidence.
30. Prosecution has examined the victim girl as
PW8. Therefore, it is only the evidence of PW8 which could
be said to be direct evidence in support of the prosecution.
31. It is an undisputed fact that victim girl - PW8
was of tender age when the alleged incident took place
and also when her evidence was recorded in the court.
Being a child witness of tender age and sole direct witness
in support of the prosecution case, evidence of PW8 has to
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be evaluated with great care and caution. In this context,
judgment of Hon'ble Apex Court in case of Radheshyam
Vs. State of Rajasthan can be noted with benefit
whereunder it has been held as follows:
"In Panchhi, (1998 SCC (cri) 1561) after reiterating
the same principles, this Court observed that the
evidence of a child witness must be evaluated more
carefully and with greater circumspection because a
child is susceptible to be swayed by what others tell
him and, thus, a child witness is an easy pray to
tutoring. This Court further observed that the
courts have held that the evidence of a child
witness must find adequate corroboration before it
is relied upon. But, it is more a rule of practical
wisdom than of law. It is not necessary to refer to
other judgments cited by learned counsel because
they reiterate the same principles. The conclusion
which can be deduced from the relevant
pronouncements of this Court is that the evidence
of a child witness must be subjected to close
scrutiny to rule out the possibility of tutoring. It can
be relied upon if the court finds that the child
witness has sufficient intelligence and
understanding of the obligation of an oath. As a
matter of caution, the court must find
adequate corroboration to the child witness's
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evidence. If found, reliable and truthful and
corroborated by other evidence on record, it can be
accepted without hesitation"
32. Keeping the aforesaid authoritative principles
laid down by Apex Court in mind pertaining to appreciation
of evidence of witnesses, particularly a child witness, it will
have to be first examined as to which category the
testimony of PW8 (victim) would fall in the present case. If
the testimony is found to be wholly reliable, there would
be no necessity of corroboration and if it was found to be
wholly unreliable, it would have to be discarded. But, if it
is found neither wholly reliable nor wholly unreliable, it
would definitely require corroboration.
33. In the instant case, PW8 - victim has
suppressed the fact that she had written love letters
(Exs.D2 & D4) to the accused prior to the incident and in
the evidence she has not stated a single word about such
love letters, on the contrary, father of the victim (PW6)
has admitted in his evidence that, accused being his
distant relative, was loving his daughter and in this regard,
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victim also written several love letters to him. PW6
deposed to an extent that, one year prior to the alleged
incident, victim went with accused and though accused
and victim were traced by him, an ASI of Ranebennur
Police Station, again they have escaped. This factual
aspects have not been deposed by PW8 in a perspective
manner, on the contrary, she has stated as if accused is
stranger to her and he kidnapped her and have had sexual
intercourse with her. The sole testimony of the victim is
not corroborated with any independent witnesses, where
accused have had sex with the victim. Admittedly, though
corroboration should ordinarily be enquired in the case of
a grown up woman, it is unnecessary in the case of child
of tender age, but as a matter of prudence, a conviction
should not ordinarily be based on the uncorroborated
evidence of a child witness, as held in Rameshwar Vs.
State of Rajasthan, reported in AIR 1952 SC 54.
34. On perusal of the medical evidence, PW17 -
Dr.Bharati, who examined the victim has stated that, there
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is evidence of intercourse and hymen was ruptured. PW17
- Dr. Bharati furnished her opinion subject to final opinion
to be furnished by the FSL and on receipt of FSL report
(Ex.P21), PW17 has opined that "based on clinical
examination and FSL report, there is no evidence of recent
sexual act." and accordingly she issued final opinion as
per Ex.P26. Hence, the medical evidence in the present
case is also of no assistance to the prosecution. On the
other hand it is against the victim. This report clearly
establishes that there was no sexual assault committed by
accused on the victim as claimed by PWs.4, 6 and 8.
35. This lead us to draw the irresistible conclusion
that offence under Section 376 IPC and Section 4 of
POCSO Act is not proved by the prosecution or in other
words, the burden cast on the accused stands rebutted.
36. Therefore, only evidence available in the
present case is the self serving testimony of victim girl
PW8. Applying the principles governing the manner in
which evidence of a solitary child witness is to be analyzed
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and accepted in a criminal trial as discussed by Hon'ble
Apex Court in Radheshyam's case referred to supra to the
case on hand, it becomes evident that corroboration was
required from other evidence and material on record. It is
clear that PW4 i.e., mother of PW8 (victim) was deposing
on the information allegedly given by the victim, rendering
her evidence as a hearsay evidence. There was no other
prosecution witness who would support the statement of
child witness PW8 (victim). The medical evidence on
record did not show any corroboration of sexual assault on
the victim. This creates a serious doubt about the veracity
of the statement made by PW8 and it appears that she has
made a statement on being told to do so or in other words
she was tutored.
37. A reading of the evidence of these witnesses
i.e., PWs. 4, 6 and 8 clearly establishes that it would not
be safe to rely upon the sole testimony of child witness
i.e., PW8 to convict the accused in the present case. There
is no corroboration to the evidence of the said child
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witness PW8 and evidence of other witnesses would not
support the case of prosecution and they have turned
hostile. As there is no medical evidence on record to
support the theory of prosecution that victim was
subjected to sexual assault by the accused, it becomes
difficult to reverse the acquittal judgment passed by the
trial Court.
38. The trial Court on considering the evidence of
prosecution inclusive of defence theory rendered the
judgment of acquittal. Whereas it is relevant to refer the
judgment of the Hon'ble Apex Court rendered in the case
of Sharad Birdhi Chand Sarda Vs. State of
Maharashtra reported in (1984) 4 SCC 116 wherein at
paragraph 163, it is held as under:
"164. We then pass on to another important
point which seems to have been completely
missed by the High Court. It is well settled that
where on the evidence two possibilities are
available or open, one which goes in favour of
the prosecution and the other which benefits an
accused, the accused undoubtedly entitled to the
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benefit of doubt. In Kali Ram v. State of
Himachal Pradesh, [(1973) 2 SCC 808] this
court made the following observations (para 25
p.820).
"Another golden thread which runs through
the web of the administration of justice in
criminal cases is that if two views are possible
on the evidence adduced in the case one
pointing to the guilt of the accused and the
other to his innocence, they view which is
favourable to the accused would be adopted.
This principle has a special relevance in cases
where in the guilt of the accused is sought to be
established by circumstantial evidence."
39. The Hon'ble Apex Court in the case of
Umedbhai Jadavbhai Vs. State of Gujarat reported in
1978 SCC (Cri) 108 wherein at paragraph 10 held as
under:
"10. Once the appeal was rightly entertained
against the order of acquittal, the High Court
was entitled to reappreciate the entire evidence
independently and come to its own conclusion.
Ordinarily, the High Court would give due
importance to the opinion of the Sessions Judge
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if the same were arrived at after proper
appreciation of the evidence."
40. The Hon'ble Apex Court in the case of
Chandrappa and Others Vs. State of Karnataka
reported in (2007) 4 SCC 415 wherein at paragraph 44 it
is held as under:
"In our view, if in the light of above
circumstances, the trial Court felt that the
accused could get benefit of doubt, the said
view cannot be held to be illegal, improper or
contrary to law. Hence, even though we are of
the opinion that in an appeal against acquittal,
powers of appellate Court are as wide as that of
the trial Court and it can review, reappreciate
and reconsider the entire evidence brought on
record by the parties and can come to its own
conclusion on fact as well as on law, in the
present case, the view taken by the trial court
for acquitting the accused was possible and
plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view
was equally possible. But it is well-established
that if two views are possible on the basis of
evidence on record and one favourable to the
accused has been taken by the trial Court, it
ought not to be disturbed by the appellate
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Court. In this case, a possible view on the
evidence of prosecution had been taken by the
trial Court which ought not to have been
disturbed by the appellate Court. The decision
of the appellate Court (High Court), therefore,
is liable to be set aside."
(emphasis supplied)
41. In the backdrop of the above said contentions
of the learned counsel for the parties and the evidence
placed on record, we may refer to few decisions of Hon'ble
Apex Court in regard to the jurisdiction and limitations of
the Appellate Court while considering the appeal against
an order of acquittal.
42. In Tota Singh Vs. State of Punjab reported in
(1987) 2 SCC 529, the Hon'ble Apex Court in para 6 has
held as under:
"6. ... The jurisdiction of the appellate court in
dealing with an appeal against an order of
acquittal is circumscribed by the limitation that no
interference is to be made with the order of
acquittal unless the approach made by the lower
court to the consideration of the evidence in the
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case is vitiated by some manifest illegality or the
conclusion recorded by the court below is such
which could not have been possibly arrived at by
any court acting reasonably and judiciously and
is, therefore, liable to be characterized as
perverse. Where two views are possible on an
appraisal of the evidence adduced in the case and
the court below has taken a view which is a
plausible one, the appellate court cannot legally
interfere with an order of acquittal even if it is of
the opinion that the view taken by the court
below on its consideration of the evidence is
erroneous."
43. In State OF Rajasthan Vs. Raja Ram
reported in [(2003) 8 SCC 180, the Hon'ble Apex Court
has held that :
"7. ... The golden thread which runs through
the web of administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case, one pointing to
the guilt of the accused and the other to his
innocence, the view which is favorable to the
accused should be adopted. The paramount
consideration of the court is to ensure that
miscarriage of justice is prevented. A miscarriage
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of justice which may arise from acquittal of the
guilty is no less than from the conviction of an
innocent. [Further, it is held that] in a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to re-appreciate
the evidence in a case where the accused has
been acquitted, for the purpose of ascertaining
as to whether any of the accused committed any
offence or not. The principle to be followed by
the appellate court considering the appeal
against the judgment of acquittal is to interfere
only where there are compelling and substantial
reasons for doing so. If the impugned judgment
is clearly unreasonable, it is a compelling reason
for interference."
44. In Surajpal Singh Vs. State reported in 1951
SCC 1207, the Hon'ble Apex court has held as under:
"7. It is well established that in an appeal
under Section 417 CrPC [old], the High Court has
full power to review the evidence upon which the
order of acquittal was founded, but it is equally
well settled that the presumption of innocence of
the accused is further reinforced by his acquittal
by the trial court, and the findings of the trial
court which had the advantage of seeing the
witnesses and hearing their evidence can be
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reversed only for very substantial and compelling
reasons."
45. In view of the above proposition of law and
decisions cited supra, in the present case, we have
independently analyzed and scrutinized the evidence of
the material witnesses and found that there is practically
no evidence to show that accused kidnapped victim girl,
took her to Bengaluru, Sakaleshapura and Davangere,
where he had sex with the victim.
46. The learned trial Judge has appreciated the
evidence of PWs. 1 to 21 in its right perspective and
concluded that the evidence of these witnesses has not
been established that the victim was kidnapped and
sexually assaulted by the accused.
47. The Hon'ble Apex Court in the case of
Harendra Narain Singh Vs. State Of Bihar reported in
AIR 1991 SC 1842, has held that if there are two views
possible from the evidence on record, one pointing to the
guilt of accused and another to the innocence of accused,
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then, the view, which is favourable to the accused, is to be
accepted and benefit of doubt shall be given to the
accused. The Learned Sessions Judge placing reliance on
the aforesaid judgment of the Hon'ble Apex Court, has
given benefit of doubt to the accused.
48. There is no embargo on the Appellate Court
reviewing the evidence upon which an order of acquittal is
based. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of
the accused is further strengthened by acquittal. The
golden thread which runs through the web of
administration of the Justice in criminal cases is that, if
two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to the
accused should be adopted. The paramount consideration
of the Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may arise from
acquittal of the guilty is no less than from the conviction of
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an innocent. This ratio is laid down in the case of
Ramanand Yadav Vs. Prabhunat Jha and in the case of
C.K. Dase Gowda And Others Vs. State of Karnataka,
reported in (2003) 12 SCC 606.
49. Proper analysis of the evidence of prosecution
witnesses and medical evidence brought on record by
prosecution shows that foundational facts necessary in the
present case to raise a presumption under Section 29 of
POCSO Act, have not been laid or established beyond
reasonable doubt by the prosecution. The statutory
presumption under Section 29 of the POCSO Act must be
understood and tested on the anvil of the golden thread
which runs through web of the criminal jurisprudence
system in this country that an accused is presumed to be
innocent till the guilt is conclusively established beyond
reasonable doubt. The defence has been able to
demonstrate that prosecution story cannot be believed and
therefore the presumption would not operate in favour of
victim girl and even otherwise it had stood rebutted by the
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medical evidence and oral evidence of PW8 and
documentary evidence Ex.P20 - medical report of victim,
FSL report (Ex.P21) and final medical report of victim
(Ex.P26), issued by PW17 - doctor.
50. The fact that there is no independent witness to
support the case of the prosecution, it requires that the
standard of evidence tendered through an independent
witness and official witness is to be an unimpeachable
nature. But the very sequence of events is not
convincingly portrayed. On the other hand, it is
demonstrated that, the oral testimony of PWs. 4, 6 and 8
and other official witnesses falls short of the standard of
proof required to connect the accused with the offence
alleged. All these factors when view cumulatively, we are
of the considered opinion that the evidence placed on
record is not sufficient enough to prove the charges
levelled against the accused beyond all reasonable doubt.
51. On careful scrutiny of the evidence available on
record, we hold that the prosecution has failed to bring
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home the guilt of the accused beyond reasonable doubt.
Therefore, the trial Court has rightly acquitted accused for
the aforesaid offences.
52. Considering all these aspects of the matter, the
learned Sessions Judge has rightly extended the benefit of
acquittal to respondent / accused. Hence, we do not find
any grounds to interfere with the well reasoned judgment
passed by the trial Court.
53. Hence we answer point No.1 in the negative,
holding that the criminal appeal filed by the State is liable
to be dismissed.
Re: Point No.2:
54. In the result, we pass the following:
ORDER
The appeal is dismissed.
The judgment of acquittal passed by the Principal
District and Sessions Judge at Haveri, in Special
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S.C.No.03/2016 dated 03.02.2018, acquitting accused for
the offences punishable under Sections 363, 506, 366,
376 of IPC and Section 4 of the POCSO Act, 2012, is
confirmed.
Sd/-
JUDGE
Sd/-
JUDGE
gab/ct-abn
