Karnataka High Court

The State Of Karnataka vs Suheb on 22 November, 2023

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                                                          NC: 2023:KHC:41986
                                                      CRL.A No. 230 of 2020




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 22ND DAY OF NOVEMBER, 2023

                                            BEFORE
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                              CRIMINAL APPEAL NO. 230 OF 2020
                   BETWEEN:

                   THE STATE OF KARNATAKA
                   BY SUB INSPECTOR OF POLICE,
                   VIRAJPET RURAL POLICE STATION,
                   REPRESENTED BY
                   STATE PUBLIC PROSECUTOR,
                   HIGH COURT BUILDING,
                   BENGALURU - 01.
                                                                ...APPELLANT
                   (BY SRI. M.R. PATIL, HCGP)

                   AND:

                   SUHEB,
                   S/O RAZAK,
                   AGED ABOUT 20 YEARS,
Digitally signed
by SANDHYA S       GAMBLER, R/O KAUVERY LAYOUT,
Location: High
Court of           MADIKERI, KODAGU DISTRICT - 571 201.
Karnataka
                                                              ...RESPONDENT
                   (BY SRI. C.N. RAJU, ADVOCATE)

                        THIS CRL.A IS FILED U/S.378(1) AND (3) OF CR.P.C
                   PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
                   JUDGMENT AND ORDER OF ACQUITTAL DATED 05.07.2019
                   PASSED BY THE LEARNED II ADDITIONAL DISTRICT AND
                   SESSIONS JUDGE, KODAGU-MADIKERI SITTING AT VIRAJPET
                   IN   SPECIAL   CASE    NO.5001/2019,  ACQUITTING   THE
                   RESPONDENT ACCUSED OF THE OFFENCE P/U/S.354, 354(d)
                   OF IPC AND SEC.11(4) AND 12 OF POCSO ACT AND
                   SEC.67(a)(b) AND (c) OF INFORMATION TECHNOLOGY ACT.
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                                                        NC: 2023:KHC:41986
                                                     CRL.A No. 230 of 2020




       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                                   JUDGMENT

Though this case is posted for admission, at the request

of learned High Court Government Pleader Sri.M.R.Patil and the

respondent counsel the matter is taken up for final hearing.

2. The State has preferred this appeal against the

judgment of acquittal passed by the Special Case

No.5001/2019 dated 05.07.2019 on the file of II Additional

District and Sessions Judge, Kodagu-Madikeri sitting at

Virajpet.

3. The rank of the parties in this appeal are referred in

the same rank as referred by the Trial Court.

4. The brief facts of the prosecution of the case is that

on 27.11.2018 at about 5.10 p.m. when victim a minor girl of

14 years was proceeding towards house by alighting from jeep

while returning from her school at Madikeri, the accused who

came in black colour pulsar motor cycle bearing

No.KA-12/H-6396 dragged victim by holding her hands and the

accused knowing fully well that victim is a minor girl has sent

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messages to the instagram account to Mobile numbers

9482299135, 9449919102 and 8197585710.Thus the accused

has committed the alleged commission of offences.

5. After filing of charge sheet, the special Court has

taken cognizance of the accused for the alleged commission of

offences. When charge was framed and led over the same to

the accused, the accused pleaded not guilty and claimed to be

tried. To prove the case of the prosecution, 13 witnesses were

examined as PW1 to PW13 and 22 documents were marked as

Ex.P1 to Ex.P22. On closure of prosecution, side evidence and

statement under Section 313 of the Cr.P.C was recorded.

Accused has totally denied the evidence of prosecution

witnesses, but he has not chosen to lead any defence evidence

on his behalf.

6. Having heard the arguments on both side, the trial

Court has passed this impugned judgment of acquittal. Being

aggrieved by this impugned judgment of acquittal, State has

preferred this appeal.

7. The learned High Court Government Pleader has

submitted his argument that the impugned judgment and order

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of acquittal passed by the trial Court is illegal, invalid contrary

to the evidence and materials on record. The trial Court has not

properly appreciated the evidence on record in accordance with

law and facts. The trial Court ought to have appreciated the

statement given by the victim girl under Section 164 of Cr.P.C,

wherein she has categorically stated as to the offence

committed by the accused. The trial Court has ignored the

provisions of Sections 29 and 30 of the POCSO Act. On all these

grounds sought to allow this appeal.

8. Learned counsel appearing on behalf of the

respondent has submitted his argument that the trial Court has

properly appreciated the evidence on record in accordance with

law and facts that there are no grounds to interfere with the

impugned judgment of acquittal on all the grounds and sought

for dismissal of the appeal.

9. Having heard the arguments and perusal of records,

the following points would arise for the consideration:

1) Whether the appellant-State has made out a ground to

interfere with the impugned judgment of acquittal?

2) What order?

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My answer to the above points are as under:

     Point No.(1) :    Negative,

     Point No.(2) :    As per final order.



     10.   I   have   examined     the   impugned   judgment   of

acquittal and other prosecution papers. It is the case of the

prosecution that on 27.11.2018 at about 5.10 p.m. when

victim- a minor girl was proceeding towards house by alighting

from jeep while returning from her school at Madikeri, accused

who came in a black colour pulsar motor cycle bearing

No.KA-12/H-6396 dragged victim by holding her hands and

accused knowing fully well that the victim is a minor girl has

sent messages to the instagram account to Mobile numbers

9482299135, 9449919102 and 8197585710, thus the accused

has committed the alleged commission of offences, that in para

Nos.12 to 26, the trial Court has observed as under:

"12. The father of the victim who is examined before the court as PW-4 has deposed before the court that victim told him that it is accused who tortured her by forcing her to make him as her friend. However later only when a suggestion is made by the learned Public Prosecutor regarding accused having sent messages to

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instagram account of the victim, this witness has admitted the suggestion and has deposed that he has warned the accused in this regard.

13. The victim who is examined before the court as PW-8 has deposed before the court that she used to receive messages from accused and others to her instagram account and her mother used to see those messages, but she has not seen those messages. However this witness later has admitted that messages in Ex.P-4 at Page No.16 to 22 are messages sent to her instagram account. She has also admitted suggestion made by the learned Public Prosecutor that accused was sending messages to her instagram account. However PW-8 has deposed that accused has not harassed her. Even PW-4 has deposed before the court that victim has not told him that it is accused who has sent messages to her instagram account.

14. Head Mistress of the school of the victim who is examined before the court as PW-11 has deposed before the court that victim disclosed before her that she is receiving photos to her instagram account and therefore she informed the same to parents of the victim, but has deposed before the court that victim has not disclosed as to from whom she is receiving photos. She has denied suggestions made to her that she learnt that it is the accused who was sending messages to instagram account of the victim and PW-4 has warned the accused in this regard. She has also denied that she has given phone number of accused to the father of the victim.

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15. Above material evidence on record disclose that it is only PW-8 victim who has admitted suggestions made to her that it is accused who used to sent messages to her instagram account. However she has deposed that she has not seen those messages and it is her mother who used to see those messages. PW-8 has also admitted that messages at page No.16 to 22 of Ex.P-4 are messages sent to her instagram account. Perusal of page No.16 to 22 of Ex.P-4 do not disclose as to who is the sender of those messages.

16. In view of the discussion made above except a bald admission of PW-8 the suggestions made to her which is not corroborated by any other oral or documentary evidence, there is no satisfactory evidence on record in this regard.

17. More over PW-8 has not spoken to anything regarding accused having harassed her by sending either photos or messages. Though PW-4 at one breath says that victim has told him that it is accused who is harassing her by sending messages to her instagram account, it is pertinent to note that testimony of PW-4 is not corroborated by the testimony of PW-8 victim herself.

18. The prosecution has not even established accused having sent messages to instagram account of the victim and having harassed her as alleged as Ex.P-16 to 22 which are admitted by PW-8 do not disclose the senders identity.

19. The other allegation made against the accused is that accused has dragged the victim by holding her hands when victim

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was going home while returning from school after alighting from the jeep.

20. Driver of the jeep who is examined before the court as PW-1 at one breath has deposed that he learnt that some boy has come to talk to victim and in this regard a complaint is lodged. This witness at another breath has admitted suggestions made to him that he learnt that a boy has dragged hand of the victim, but he has deposed that he do not know name of the said boy. This witness has denied that it is the accused who has come to talk to the victim and has dragged hand of the victim on the day of incident.

21. Father of the victim who is examined before the court as PW-4 has deposed before the court that during November previous year accused has come near his house was talking to victim and when he questioned the accused, accused has stated that he has come there as he knows the victim and as accused has come near his house and was talking to victim though he has warned the accused, he has lodged complaint and handed over accused to the police. Whereas it is pertinent to note that this witness has not spoken to anything regarding accused having dragged the victim by holding her hand as alleged. Even no such suggestions are made to PW-4 regarding he having witnessed accused having dragged the victim by holding her hand as alleged. This witness at another breath even has deposed that he has not seen the accused having come near his house and having talked to his daughter.

22. The victim who is examined as PW-8 has deposed before the court that previous

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year when she was returning from school accused has come near her house to talk to her and villagers by questioning the accused as to who he is took him away. This witness has admitted a suggestion that she has given statement before judge that her father and neighbour handed over accused to the police when accused came near her house dragged her by holding her hand. However she has further deposed that she has given such a statement as villagers asked her to give such a statement.

23. A neighbourer of the victim who is examined before the court as PW-10 has deposed before the court that on hearing some sound during November 2018 when he came out of his house police have come near his house but he do not know as to why police came there. This witness has denied suggestions made to him that on 27- 11-2018 at 5.30 p.m he saw the accused dragging the victim by holding her hands and when himself and PW-4 father of the victim tried to catch hold of the accused, accused fell down and they cought hold of the accused, questioned him, who disclosed his name as Suheb and when victim was enquired she disclosed that it is the accused who has harassed her through mobile and on that day has followed her from his bike.

24. The Head Mistress of the school of the victim who is examined before the court as PW-11 has not spoken to anything regarding above said allegation and she has denied suggestions made to her that she learnt that on 27-11-2018 when victim was going home after alighting from Jeep accused came in bike and dragged victim by holding her hand and in this regard father of

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the victim has lodged complaint to Virajpet Rural Police.

25. Above material evidence on record discloses that PW-4 father of victim and PW-8 victim have deposed before the court that accused came near their house on the day of incident to talk to victim but they have not spoken to anything regarding accused having dragged victim by holding her hands as alleged. Even PW-10 an eyewitness to the incident has not spoken to anything in this regard. The victim has denied specific suggestions in this regard.

26. In view of the discussion made above I am of the view that prosecution has failed to establish said allegations against the accused person. In view of the discussion made above I am of the view that prosecution has failed to establish allegations made against the accused person beyond reasonable doubt. So, Point No.1 to 4 are answered in Negative."

11. On re-examination/re-appreciation and re-

consideration of the entire evidence on record, it is crystal clear

that the trial Court has properly appreciated the evidence on

record in accordance with law and facts. It is also relevant to

mention here that the victim herself has clearly stated that the

accused has not harassed her. I do not find any

illegalities/infirmities in the impugned judgment. Hence, I

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answer point No.1 in negative, point No.2 for the aforesaid

reasons and discussions. I proceed to pass the following

ORDER