Karnataka High Court
State Of Karnataka vs Chama on 28 June, 2023
Bench: Sreenivas Harish Basavaraja, Gbj
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CRL.A No. 121 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 121 OF 2017
Between:
State of Karnataka
By Holalkere Police
Chitradurga.
Represented by
State Public Prosecutor,
High Court of Karnataka,
Bengaluru-560001.
...Appellant
(By Sri K.S.Abhijith, HCGP)
And:
Digitally signed
by VEERENDRA Chama
KUMAR K M S/o Khadarsab
Location: HIGH Aged 24 years,
COURT OF Coolie Work
KARNATAKA
R/o Shivalinga Layout
Holalkere Taluk,
Chitradurga District-577501.
...Respondent
(By Sri M.S.Manjunatha, Advocate - Absent)
This Criminal Appeal is filed u/s.378(1) and (3) Cr.P.C.,
praying to grant leave to appeal against the judgment and
order dated 31.08.2016 passed by the II Additional District and
Sessions Judge, Chitradurga in Spl.C.(POCSO).No.10/2015
acquitting the accused for the offences p/u/s 366 & 376 of IPC
and u/s 3 & 4 of POCSO Act and etc.
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This Criminal Appeal, coming on for hearing this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The acquittal judgment dated 31.08.2016 in
Spl. Case (POCSO) No.10/2015 on the file of the II
Additional District Judge, Chitradurga has given
rise to this appeal by the State under Section 378
of the Code of Criminal Procedure.
2. The prosecution case is as follows:
PW9 is the prosecutrix. In the midnight at
about 12'O Clock on 12.01.2015, when PW9 felt
like attending first call of nature she came out of
the house; then the respondent i.e., the accused
took her with him to Davanagere making a promise
that he would marry her. At Davanagere, she was
made to stay in a house behind Durgambike
Temple, Kumbara Beedi and there he had forcible
sexual intercourse with her. They stayed together
for about 9 days i.e., till 22.01.2015, when the
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police went to that house and brought them to
Holalkere police station. In the meanwhile, on
15.01.2015 itself, the father of PW9 i.e., PW1 went
to Holalkere police station and made a report
about kidnapping of his daughter as per Ex.P.1.
After tracing of the girl and the accused, the police
held investigation and filed charge sheet against
the respondent/accused for the offences
punishable under Sections 366 and 376 of IPC and
Sections 3 and 4 of POCSO Act.
3. The prosecution examined 23 witnesses
as per PWs.1 to 23, marked 29 documents as per
Exs.P.1 to P29 and 13 material objects as MOs.1 to
13 during trial.
4. Appreciating the evidence, the trial court
came to the conclusion that the prosecution failed
to prove its case beyond reasonable doubt; the
evidence would not disclose that PW9 was
kidnapped by the accused and then had sexual
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intercourse with her. Referring to the evidence of
PWs.8, 15, 16 and 22, the trial court is of the view
that there is no buttressal from medical evidence
as also FSL report.
5. We have heard the arguments of Sri
K.S.Abhijith, learned High Court Government
Pleader for the appellant-State. Sri
M.S.Manjunatha, learned counsel for the
respondent-accused is absent.
6. It is the argument of Sri K.S.Abhijith that
if the evidence of PW9 is perused, it becomes
amply clear that she has given a good narration of
events starting from her kidnap in the midnight on
12.01.2015 till the police brought her to the police
station. Her evidence is so clear that the accused
subjected her to forcible intercourse on the pretext
of marrying her. Her testimony is not at all
discredited. The cross examination is of no use at
all. The date of birth of the girl is 05.02.1998 as
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per Ex.P.20. Therefore as on 12.01.2015, she was
a minor girl. PW7 is examined by the prosecution
to prove that he saw the accused taking PW9 with
him in the midnight hours. Although he turned
hostile, yet from the evidence of PW17, the owner
of the house where the accused and the girl stayed
together it would get proved that PW9 and accused
stayed there for about ten days. Therefore
collating the evidence of PW9 with the evidence of
PW17, it can be concluded that the accused made
the girl stay with him and during that time he had
forcible intercourse with her. He also refers to the
medical testimony and submits that the doctor's
evidence is so clear that the hymen was ruptured.
Although she has stated that there was no signs of
recent sexual intercourse, it does not mean that
the girl was not subjected to sexual intercourse.
In this view, the trial court should not have
acquitted the accused.
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7. We have perused the entire evidence and
considered the arguments of Sri K.S.Abhijith. The
prominent witnesses are PWs.1, 7, 9, 17 and 15.
8. PW1 is the father of the girl. Obviously
he would have gone to the police station to make a
report to the police when his daughter did not
return home. Whatever evidence that he has given
about the rape on his daughter is nothing but what
he heard after his daughter was traced. Therefore
his evidence to that extent does not assume any
importance.
9. If the evidence of PW9 is perused, though
she has stated that when she came out of the
house during midnight to attend nature call, the
accused forcibly took her on his motorbike to
Davanagere had forcible intercourse with her in a
house, to this effect her evidence does not find
corroboration from Ex.P.22, the statement given
by PW9 before the Magistrate under Section 164 of
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Cr.P.C. In Ex.P.22, she has stated that two
persons took her forcibly on a motorcycle and she
was made to sit in the middle and at that time she
had no consciousness; and she regained
consciousness one day after and then came to
know that she was in a house at Davanagere. She
also stated that the accused had forcible
intercourse with her. Therefore whatever she
stated before the Magistrate was not stated by her
when she adduced evidence before the Court. The
only inference that can be drawn is that perhaps
she was in love with the accused, and might have
gone with him during midnight; we do not find an
element of inducement by the accused to take her
from the lawful custody of her parents for the
purpose of having intercourse.
10. Then another witness PW7, who according
to prosecution saw the accused taking PW9 with
him, has not supported the prosecution case. He
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turned hostile and the effort made by the
prosecution to discredit him, failed.
11. If we refer to the evidence of PW15,
though she has stated that the hymen of PW9 was
found to be ruptured, she did not find signs of
recent sexual intercourse. After PW9 was brought
to the police station, immediately she was sent to
hospital for medical examination. The clothes that
PW9 was wearing were all collected. Her vaginal
swabs were also collected, they were all sent to
FSL. The evidence of PW22, the FSL expert is to
the effect that neither in the inner wears of the
accused nor in the inner wears of PW9, he found
the presence of seminal stains. It is not the case
of prosecution that the girl had changed the
clothes. What we can infer is that she was
wearing the clothes which she was wearing at the
time when she left the house. Therefore the
evidence of PW22 goes against the prosecution.
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12. Although as per Ex.P.20, the date of birth
of the girl is 05.02.1998, we do not find that the
proof as per Ex.P.20 is sufficient enough to be
accepted because it was issued by the Vice
Principal, Malladihalli Madanna's Government Pre-
University College (High School Division),
Holalkere, Chitradurga District. The prosecution
has not produced any proof with regard to age
issued by the school first attended by PW9.
13. Ex.P.16 is the X-ray report issued by
PW8, Dr. Sathyanarayana, who subjected the girl
to medical examination for the purpose of
ascertaining the age of the girl. According to PW8,
the age was around 16-17 years and he has stated
that marginal benefit of two years either side
would be given. In this view, we do not find any
concrete evidence with regard to the actual age of
the girl.
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14. Therefore even though it could be
assumed that if for any reason the evidence of
PW9 as regards sexual assault on her is believable,
there is no concrete proof with regard to her actual
age and therefore we find it difficult to come to a
conclusion that as on 12.01.2015, her age was
below 18 years. This benefit should obviously go
to the accused. Since our re-assessment of
evidence takes us to concur with the findings of
the trial court, we do not find merit in this appeal.
Therefore it is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
