Karnataka High Court
The State Of Karnataka vs Krishna on 1 April, 2024
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CRL.A No.741/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL No.741/2021(A)
BETWEEN:
THE STATE OF KARNATAKA
BY SUB INSPECTOR OF POLICE
BANASHANKARI POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING, BENGALURU - 560 001 ...APPELLANT
(BY SMT.SOWMYA R, HCGP)
AND:
1. KRISHNA
S/O.CHIKKA ABBAIAH
AGED ABOUT 26 YEARS
R/AT 3RD CROSS, BHAVANI NAGAR
BANASHANKARI II STAGE
BENGALURU - 560 085
Digitally
signed by K S 2. SMT.ESHWARAMMA
RENUKAMBA W/O RAVIKUMAR
Location: AGED ABOUT 43 YEARS
High Court of R/AT HOUSE NO.305, 3RD CROSS
Karnataka
BHAVANINAGAR, KADIRENAHALLI
BENGALURU - 560 078 ...RESPONDENTS
(BY SRI B.O.CHANDRA SHEKAR, ADVOCATE FOR R1;
SRI N.S.SAMPANGI RAMAIAH, AMICUS CURIAE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1)
AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 02.01.2020 PASSED BY THE LIII ADDITIONAL CITY CIVIL
AND SESSIONS SPECIAL JUDGE, BENGALURU IN
SPL.C.C.NO.278/2016 ACQUITTING THE RESPONDENT - ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366, 506, 376
OF IPC AND SECTION 5(L) READ WITH SECTION 6 OF THE
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CRL.A No.741/2021
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal challenging the
judgment and order of acquittal in Spl.C.C.No.278/2016 passed
by the LIII Additional City Civil & Sessions Special Judge,
Bengaluru.
2. The respondent was the sole accused in
Spl.C.C.No.278/2016 before the Trial Court. For the purpose of
convenience, the parties are referred to henceforth according to
their ranks before the Trial Court.
3. The accused was tried in Spl.C.C.No.278/2016 for
the offences punishable under Sections 366, 506, 376 of IPC
and Section 5(l) and 6 of the Protection of Children from Sexual
Offences Act, 2012 ('the POCSO Act' for short) on the basis of
the charge sheet filed by Banashankari Police in Crime
No.59/2016 of their police station.
4. The case of the prosecution in brief is as follows:
(i) PW.2 the victim at the relevant time was aged 17
years. PWs.1 and 3 are the mother and father. On 03.03.2016
at 11.45 a.m. when PW.2 was returning home from computer
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class near Bhavaninagar Bakery, the accused with an intention
to commit sexual offence kidnapped her in Tata AC vehicle
bearing No.KA-53-B-7067, threatening her that if she does not
accompany him her mother and two younger brothers will be
killed. First he took her to Dharmasthala and stayed there on
04.03.2016 in Room No.335 of Sharavathi Guest House. During
that night, he committed penetrative sexual assault on her,
then he took her back to Bengaluru. On 06.03.2016 again from
Bengaluru he took her to Male Mahadeshwara Hills (for short
'MM Hills') and stayed in Room No.16 of D.K.Delux Lodge.
During such stay, he committed penetrative sexual assault on
her. From there he brought her back to Bengaluru and took her
to Tirupathi etc.
(ii) By that time on 04.03.2016, PW.1 mother of the
victim filed missing complaint before PW.11 the Sub Inspector
of Police of Banashankari police station as per Ex.P1. Based on
that, PW.11 registered the first information report as per
Ex.P15. On learning about the complaint and police searching
for them, the accused abandoned PW.2 in Mulbagal bus stand
paying her Rs.100/- and asking her to go to her grandfather's
house. From there PW.2 was rescued. Based on her statement,
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the aforesaid offences were included in the offences against the
accused.
(iii) PW.11 subjected PW.2 to medical examination, got
recorded her statement under Section 164 of Cr.P.C., recorded
the statements of the witnesses, collected the relevant records,
arrested the accused and handed over the investigation to
PW.13 the Police Inspector of Banashankari police station.
PW.13 collected the FSL report and filed the charge sheet.
5. The Trial Court on hearing the parties framed the
charges against the accused for the offences punishable under
Sections 366, 506, 376 of IPC and Sections 5(l) and 6 of the
POCSO Act. The accused denied the charges and claimed trial.
Therefore the trial was conducted. In support of the case of the
prosecution, PWs.1 to 13 were examined and Exs.P1 to P16 and
MOs.1 and 2 were marked. After his examination under Section
313 of Cr.P.C. the accused did not lead any defence evidence.
6. The Trial Court on hearing both sides by the
impugned judgment and order acquitted the accused holding
that the prosecution has failed to prove the charges beyond
reasonable doubt.
7. The State has preferred the above appeal
challenging the said judgment and order.
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Submissions of Smt.Sowmya.R, learned HCGP for the State
and Sri N.S.Sampangi Ramaiah, learned Amicus Curiae for
respondent No.2:
8. PW.2 being child below 18 years was proved by the
evidence of PW.7 the Head Master of the School where PW.2
studied and Ex.P8 admission register extract. PW.2 cogently
and consistently deposed about the overt acts of the accused.
Her evidence was corroborated by the evidence of her parents,
medical officer and other witnesses. The Trial Court committed
grave error in acquitting the accused rejecting their evidence.
The impugned judgment and order suffers patent illegality and
perversity. Hence the same is liable to be set aside.
Submissions of Sri B.O.Chandra Shekar, learned Counsel for
respondent No.1/accused:
9. The basic fact of PW.2 being minor itself was not
proved. Ex.P8 was not the original admission register of school
which was first attended by PW.2. The evidence on record
shows that PW.2 was in a romantic relationship with the
accused and she herself voluntarily accompanied the accused.
The medical evidence was also inconclusive. The evidence on
record shows that though the victim was with the accused from
03.03.2016 till 11.03.2016, she did not raise any protest or
seek anybody's help. Contrary to that, the evidence of PWs.4
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and 10 Managers of lodge and guest house in MM Hills and
Dharmasthala respectively shows that couple projected
themselves to be the husband and wife. By such evidence of
the prosecution itself, the allegations that she was forcibly
kidnapped and sexually assaulted were demolished. This being
an appeal against the order of acquittal, the scope of
interference in the hands of the Appellate Court is very limited.
There is no patent illegality or perversity in the impugned
judgment and order. Therefore the appeal is liable to be
dismissed.
10. In support of his submissions, he relies on the
following judgments:
(i) Mahadeo v. State of Maharashtra1
(ii) Prem Singh v. State of Haryana2
11. On considering the submissions of both sides and
examination of the materials on record, the question that arises
for consideration is "Whether the impugned judgment and
order of acquittal suffers patent illegality or perversity"?
Analysis
12. The Trial Court holding that the prosecution failed to
discharge its initial burden of proof, has acquitted the accused.
(2013) 14 SCC 637
(2013) 14 SCC 88
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It is the settled proposition of law that in an appeal against the
order of acquittal, the scope of interference is limited. The
Appellate Court cannot interfere with such judgment, unless it
is demonstrated that the impugned judgment and order of
acquittal suffers patent illegality or perversity. If on the basis of
the material on record, two views are possible, then the view
favorable to the accused has to be considered. By the order of
acquittal, the accused has double benefit namely the initial
presumption of innocence which is available to the accused in
the trial, secondly which is reinforced by the order of acquittal.
This view of ours is supported by the judgment of the Hon'ble
Supreme Court in Prem Singh Vs State of Haryana3. This Court
has to examine this matter in the light of the above principles.
13. The accused was tried by the Trial Court on the
charge that on 03.03.2016 at 11.45 a.m. he kidnapped PW.2
aged 17 years threatening her of the lives of her mother and
younger brothers, took her to Dharmasthala, MM Hills and
Tirupathi and in those places he committed penetrative sexual
assault on her and ultimately on 11.03.2016 on learning about
the police complaint he abandoned her in Mulbagal Bus stand.
2013 (4) SC 88
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14. To sustain the charge for the offences under the
POCSO Act, the prosecution had the burden to prove first that
PW.2 was a child aged below 18 years as contemplated in
Section 2(d) of the POCSO Act. If the fact of the victim being
child is not proved, then the POCSO Act is not applicable, then
what remains is the offence under Section 376 of IPC.
15. In the present case, as per the charge sheet, PW.2
was aged 17 years. To prove the said fact, the prosecution
relied on the evidence of PWs.1 to 3 namely the victim, her
parents and PW.7 the Head Master of the High School where
PW.2 studied and Ex.P8 the admission register extract.
16. The Hon'ble Supreme Court in Mahadeo vs. State of
Maharashtra4 in similar circumstances while considering how
the age of the victim/child in conflict with law has to be
assessed relying on Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 held as follows:
"12. (3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may
be, the Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates,
if available; and in the absence whereof;
(2013) 14 SCC 637
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(ii) the date of birth certificate from the school
(other than a play school) first attended;
and in the absence whereof;
(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
Under Rule 12(3)(b), it is specifically provided that only
in the absence of alternative methods described under
Rules 12(3)(a)(i) to (iii), the medical opinion can be
sought for. In the light of such a statutory rule prevailing
for ascertainment of the age of a juvenile, in our
considered opinion, the same yardstick can be rightly
followed by the courts for the purpose of ascertaining
the age of a victim as well."
(Emphasis supplied)
17. As per the aforesaid judgment, to prove the age,
the prosecution is required to produce first the matriculation
and equivalent certificate of the victim, if the same is not
available, then the date of birth certificate from the school first
attended by the victim and in the absence of that the birth
certificate issued by the local authority i.e., the Municipal
Corporation or Panchayat and if none of them are available then
to resort to ossification test.
18. In the present case PW.2 had failed in SSLC,
therefore was pursuing Computer class in Dayananda Sagar
College. It was not investigated whether subsequently, PW.2
completed SSLC or not. Her matriculation and equivalent
certificate were not produced to prove her date of birth. As per
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the evidence of PW.7 the Head Master of Vidya High School,
Bendrenagar, Bengaluru, Ex.P8 was the admission register
extract containing the entries regarding the admission of PW.2
in the said High School. PW.7 himself admits in the cross-
examination that the said entry was made on the basis of the
transfer certificate issued by the Primary School. Thus Ex.P8
was not the record issued by the school first attended by PW.2.
PW.7 further admits that at the time of admission in their High
school, the parents of PW.2 did not furnish the original records
pertaining to her date of birth. Thereby the prosecution failed to
prove the age of the victim as per the judgment of the Hon'ble
Supreme Court in Mahadeo's case referred to supra.
19. In addition to the above, the prosecution did not
elicit in the evidence of PWs.1 to 3 that as on the date of the
incident, the victim was aged below 18 years. The prosecution
failed to discharge its burden of proving the fact of the victim
being the child in terms of the judgment of the Hon'ble
Supreme Court in Mahadeo's case referred to supra. Therefore
the provisions of the POCSO Act cannot be invoked. In that
event, the presumption under Sections 29 and 30 of the POCSO
Act is not available to the prosecution. Thus the charge for the
offence under the POCSO Act does not sustain. Then, what
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remains is whether the charge under Section 376 (2)(i) and (n)
of IPC sustains?
20. If at all there was any forced sexual intercourse,
then Section 376 of IPC will be applicable. The other question
is whether the accused had kidnapped the victim under criminal
intimidation attracting Sections 366 and 506 of IPC. It is no
doubt true that PW.2 supported the prosecution's version about
kidnapping her under criminal intimidation of committing the
murder of her younger brothers. It is no doubt true that the
victim of the crime of rape being on par with the injured
witness stands on a higher pedestal. But to base conviction on
her evidence, the same should inspire the confidence of the
Court. Therefore it has to be examined whether her evidence
inspires the confidence of the Court.
21. PW.2 victim went missing on 03.03.2016 and was
traced on 11.03.2016. PW.1 in her complaint Ex.P1 neither
whispered anything about the accused nor named him as
culprit. The evidence of PW.2 shows that the place where the
accused allegedly kidnapped her was a public place. As rightly
pointed out by the Trial Court from there she travelled in public
buses with the accused to Dharmasthala and from
Dharmasthala back to Bengaluru and from Bengaluru to MM
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Hills, again back to Bengaluru and from Bengaluru to Tirupathi
in train and back to Mulbagal. In none of these places she tried
to escape, flight/fight or raise alarm seeking public help. She
says on learning about the police complaint, the accused
dropped her in Mulbagal, giving her Rs.100/- and asking her to
go to her grandparents house and then she phoned her mother.
When she could call in Mulbagal why she did not phone to her
parents for about 8 days regarding her whereabouts or about
the overt acts of the accused is not explained in her chief
examination.
22. The evidence of PWs.4 and 10 the managers of
D.K.Delux lodge, MM Hills and Sharavathi Guest House in
Dharmasthala respectively shows that while checking into the
said lodge and guest house and during their stay there, the
accused and the victim projected themselves as married couple.
Indisputably Dharmastahala, MM Hills and Tirupathi are all
pilgrimage places and lot of pilgrims and police keep moving in
those places and PW.2 admits the said fact in her cross-
examination. Still she did not alert any of those people.
23. The evidence of PW.6 the doctor who examined
PW.2 and her report Ex.P2 show that PW.2 herself gave the
history that herself and accused were in love with each other
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and PW.2 tried to distance herself from the accused because of
his addiction to alcohol and then the alleged kidnapping under
criminal intimidation, rape etc., took place. As per the evidence
of PW.6 and the medical examination report Ex.P2, the hymen
of the victim was intact and there was no sign of recent sexual
intercourse. Though PW.6 says that there was mild abrasion in
labia majora, she admits in her cross examination that the
contents of Ex.P2 are written by a PG student of their
Institution, she has only subscribed her signature on the same.
She did not even name that PG student. Under the
circumstances, the entry regarding simple injury on the private
part of PW.2 becomes doubtful.
24. The theory of criminal intimidation was also not
consistent. In Ex.P4 statement before the Magistrate PW.2
purportedly stated that the accused threatened her of killing
her mother and brothers if she fails to board the vehicle. But in
her chief examination she speaks of criminal intimidation of
killing her brothers alone. She does not speak about her
mother. Whereas PW.1 says that the accused had threatened
PW.2 of the lives of her mother and the younger brothers.
PW.3 the father of the girl did not whisper anything about such
intimidation to PW.2.
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25. The above facts and circumstances, as rightly
pointed out by the Trial Court do not inspire the confidence of
the Court to believe the evidence of PW.2. As against that, her
evidence indicates that she was having an affair with the
accused and she eloped with him from the house and stayed
with him. Even the way PW.2 was traced and the accused was
arrested was not consistent. PW.2 in her statement Ex.P4
before the Magistrate states that on they returning to Majestic
Bus stand, the younger brother of the accused informed him
over phone about PW.1 filing a police complaint and then they
went to Tirupathi and came back to Mulbagal, there the accused
left her paying Rs.100/- and asking her to go to her
grandmother's house. Accordingly, she went to her
grandmother's house in the bus. She further states that her
grandfather informed her parents over phone, they came there
and then all of them went to the police station. But PW.1 in her
chief-examination says that PW.2 phoned them from Mulbagal
and they went to Mulbagal bus stand with the police and traced
her. She says that police trapped the accused by making a
phone call through PW.2 herself. Again in her cross-
examination she states that after her daughter phoning her
when they went to Mulbagal, her daughter and the accused
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were together and there were nobody else. She admits in her
cross-examination that only on the police informing her, she
came to know that the accused had kidnapped her daughter
and committed rape on her. PW.11 the Assistant Sub Inspector
of Police who registered the first information report states that
on next day of filing the complaint which means i.e. on
05.03.2016, PW.1 gave further statement implicating the
accused and PW.2 appeared in the police station on 11.03.2016
along with her mother. She further states that on 14.03.2016
the staff deputed by her apprehended the accused, produced
him before her and she arrested him. PW.9 the Constable who
apprehended the accused says that on the basis of the credible
information he apprehended the accused on 14.03.2016 in
Banashankari bus stand and produced him before PW.11.
26. The above facts and circumstances go to show that
the genesis of the case is suppressed and the story of
kidnapping, child sexual abuse is concocted on deliberations.
The facts and circumstances of the case probabilised the
defence that a romantic relationship of PW.2 and the accused is
converted to a POCSO case. The Trial Court on judicious
appreciation of the evidence on record and on assigning sound
reasons has acquitted the accused. Therefore the impugned
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judgment and order of acquittal does not warrant interference
of this Court. Hence, the following:
ORDER
The appeal is dismissed.
The Court places on record its appreciation for the able
assistance rendered by Sri N.S.Sampangi Ramaiah, learned
Amicus Curiae.
Registry in terms of the letter of the Registrar General,
High Court of Karnataka bearing No.HCLC 25/2014 dated
04.01.2021 shall release to him remuneration of Rs.15,000/-.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
