Karnataka High Court
The State Of Karnataka vs Vinod Kumar on 2 August, 2024
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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CRL.A No. 200228 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.200228 OF 2023 (378)
BETWEEN:
THE STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR
OF POLICE, WEST CIRCLE,
DISTRICT: RAICHUR.
...APPELLANT
(BY SRI SIDDALING P. PATIL, ADDL. SPP)
AND:
VINOD KUMAR
S/O VENKATAREDDY,
Digitally signed AGE: 23 YEARS,
by SUMITRA OCC: STUDENT,
SHERIGAR
Location: HIGH R/O H.NO.9-18-110/1,
COURT OF NEAR WATER TANK,
KARNATAKA
MADDIPET,
TQ. & DIST. RAICHUR.
...RESPONDENT
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(1) & (3) OF
THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 02.07.2022 PASSED BY
THE SPECIAL COURT FOR THE CASES UNDER THE POCSO AND
1ST ADDL. SESSIONS JUDGE, RAICHUR, IN SPL. CASE (POCSO)
NO.13/2015 THEREBY ACQUITTING THE ACCUSED/
RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER
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CRL.A No. 200228 of 2023
SECTIONS 366 AND 376 OF IPC AND SECTION 4 OF POCSO
ACT, 2012 AND TO CONVICT AND SENTECE THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 366 AND 376 OF IPC AND SECTION 4 OF
POCSO ACT, 2012.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)
The State of Karnataka through its Inspector of
Police, West Circle, Raichur District, has preferred this
appeal, challenging the judgment of acquittal of the
respondent-accused in Spl. Case (POCSO) No.13/2015
dated 02.07.2022 by the Special Court for the cases under
the POCSO, and the I Additional Sessions Judge, Raichur.
2. Facts of the case are that:
a) The respondent-accused was charge-sheeted by
the appellant for the offences punishable under Sections
366, 376 of IPC and Section 4 of the POCSO Act, 2012,
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alleging that on 20.09.2014 at 11.00 a.m., complainant -
Gopal Reddy lodged a written complaint, stating, that the
victim girl aged 16 years is his second daughter, amongst
his three daughters; she was studying in II PUC at the
relevant time and used to attend her College in between
8:30 a.m. and 2:30 p.m. It is stated that, as usual on
18.09.2014 at 8:30 a.m., the victim girl went to her
College, but did not return in the afternoon. The
complainant and his family members thought that she
must have gone with her friends. On the same day itself
at 3:00 p.m., when himself and his brother-Pandu went to
the College and inquired about the victim girl, they came
to know that though his daughter has come to the College,
but went away from the College on the ground of her
stomach ache. They enquired with the friends and
relatives, but could not trace her. At about 4:30 p.m.,
when they were in house, victim girl called him through
mobile No.8951559983 and stated that she is in Car and
she will come back to home, then the call was
disconnected. When they ascertained about the said
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mobile number, it revealed that, the said mobile sim-card
belonged to the accused. It is alleged in the complaint
that, the accused in between 9:00 and 10.00 a.m., on
18.09.2014, had kidnapped his daughter with in intention
to marry her. The complaint was registered in Crime
No.98/2014 for the offence punishable under Section 366A
of IPC. The Investigating Officer conducted the Spot
Panchnama. The CPI, West Circle, examined as PW17, on
taking up the investigation arrested the accused, brought
back the victim and handed over to her parents. After
completion of investigation, he filed charge-sheet against
the accused for the aforesaid offences.
b) Before the learned trial Court, to prove the case
against the accused, prosecution in all has examined 17
witnesses and got marked Exs.P1 to P23 with respective
signatures thereon. During the course of cross-
examination Exs.D1 to D4 were marked. The prosecution
closed the evidence.
c) The learned trial Court on hearing the
arguments and on evaluation of the evidence, raised four
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points for consideration. Amongst the four points, it
answered point No.1 in favour of the prosecution holding
that the victim girl was a child as defined under Section
2(d) of POCSO Act, 2012. Being aggrieved by the same,
either the victim girl or the accused has not challenged the
said finding. Therefore, the said finding has attained
finality. Insofar as point Nos.2 to 4 are concerned, the
trial Judge answered them in the negative and ultimately
passed an order of acquittal of the accused-respondent for
the offences punishable under Sections 366 and 376 of IPC
and also under Section 4 of the POCSO Act, 2012. This is
how, now the appellant-State is before this Court
challenging the said judgment of acquittal.
3. The learned Additional SPP Sri Siddaling P. Patil,
with all force, in addition to the facts of the case submits
that, PW2 being the victim girl has spoken in her evidence
about kidnapping her by the accused in between 9:00 a.m.
and 10:00 a.m. on 18.09.2014. He further submits that
the other circumstances brought on record by the
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prosecution through other witnesses has proved the
offence against the accused. The trial Court has
committed a grave error in appreciating the evidence
placed on record by the prosecution. It has committed
error in appreciating the evidence with regard to the
presumption as stated under Section 29 of the POCSO Act,
as the PW2 - victim girl has categorically deposed with
regard to the offence by the accused, but her evidence
was not believed by the trial Court. He submits that, the
trial Court has misunderstood the provisions of IPC as well
as the POCSO Act and has wrongly acquitted the accused.
Therefore, he prays to allow the appeal and set aside the
impugned judgment and order.
4. Refuting this submission, the learned counsel
for the respondent accused - Sri Liyaqat Fareed Ustad, by
relying upon the clear admissions of PW2 and other
evidence of the prosecution witnesses so examined
submits that, when the victim girl herself has not
supported the case of the prosecution, then nothing
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remains in the appeal to be decided to find the guilt of the
respondent-accused. He submits that, except PW2 the
other witnesses are not eyewitnesses or any connecting
witnesses so as to prove the guilt of the accused. He
submits that on proper evaluation of the evidence placed
on record by the prosecution, the trial Court by applying
the provisions of law and also principles laid down in
various judgments has rightly acquitted the accused. As
this appeal is filed challenging acquittal, he submits that
the appellate Court must be very slow in interfering with
the acquittal judgment. The innocence of accused is duly
proved in accordance with law and such finding of the trial
Court shall not be interfered with. In support of his
submission, he relied upon the various evidence placed on
record by the prosecution and prayed to dismiss the
appeal.
5. The learned Addl. SPP made available the
copies of the deposition and documents for immediate
reference.
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6. We have given our anxious consideration to the
arguments advanced by both the sides and perused the
records.
7. In view of the rival submissions of both the
side, the point that arises for our consideration is as
under:
"Whether the trial Court has committed factual and
legal error in acquitting the accused and therefore, it
requires interference by this Court?"
8. It is the specific allegation of the prosecution
that the accused has committed kidnap of the victim girl
PW2, who was a child as per the provisions of law of
Juvenile Justice as well as POCSO Act. He kidnapped her
on 18.09.2014 at 8:30 a.m., and took her to various
places like Vijayawada in Andhra Pradesh and committed
rape on her without her consent and against her will and
also committed penetrative sexual assault on her. To
ascertain about the offence against the accused, one has
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to read the oral and documentary evidence led by the
prosecution.
9. The prosecution relied upon various documents
to prove the offence alleged to have been committed by
the accused. Amongst them, the important documents
are Ex.P1 - Complaint, Ex.P2 - Statement of PW2 under
Section 164 of Cr.P.C., Exs.P6 and 7 - Spot Panchnama,
Ex.P13 - Medical Provisional Opinion on victim, Ex.P14 -
Medical Final Opinion and other documents. As stated
supra, as per the original Birth Certificate of the victim and
also her SSLC Marks Card, she was born on 13.03.1998
and as on the date of incident she was 16 years 6 months
old. To that effect, the trial Court has given finding on
point No.1 holding that she was child as defined under the
provisions of Juvenile Justice Act (Care and Protection of
Children) Act, 2015 and Protection of Children from Sexual
Offences Act, 2012 and this finding has attained finality.
10. So far as the offence of kidnapping and other
offences, the prosecution relies upon the evidence of PW1-
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complainant, father of the victim girl, who reiterates the
contents of complaint alleging kidnapping of his daughter
by the accused by filing complaint on 20.09.2014 as per
Ex.P1. It is his evidence that, on 27.09.2014, the Police
had brought the accused and his daughter from Belagavi.
On inquiry, his daughter revealed that initially accused
took her to Manthralaya, thereafter went to Vijayawada
and in Vijayawada he took her to Chaya Lodge Room
No.108 and against her will and without her consent he
had a penetrative sexual assault on her. It is further
stated that, thereafter the victim girl was taken to Chennai
forcibly and also to Trivendrum and Goa, thereafter to
Belagavi. Thus, it was alleged by him that accused
committed rape on his daughter.
11. PW1 is thoroughly cross-examined by the
defence. But he is a hearsay witness to the incident and
came to know about the incident only through his
daughter. Therefore much value cannot be attached to
the evidence of this PW1. His evidence consists of so
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many contradictions, omissions as rightly observed by the
trial Court. Even he has deposed ignorance about so
many facts. Therefore, unless his evidence is corroborated
by the evidence of other witnesses, his evidence would not
help the case of the prosecution.
12. PW2 is none else then the victim girl in this
case. She reiterates her statement before the Police in
her examination-in-chief. She states that, on 18.09.2014
as she was suffering from stomachache, she was returning
home. On the way she met the accused. Accused took
her to the KSRTC bus-stand in an auto rickshaw and took
her to Manthralaya. There he tied a turmeric thread to her
neck by saying that, he is giving surprise to her and it was
10.00 a.m., at that time. Thereafter, he took her to
Vijayawada in a bus and they reached Vijayawada at 5:00
a.m. He took her to Chaya lodge Room No.108 and
against her will he had sexual intercourse with her.
Thereafter, he took her to Kanyakumari in a train on
21.09.2014, there they stayed for 02 days and in
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Kanyakumar also he committed rape on her. Thereafter,
he took her to Chennai and also to Goa. Even at Goa also
he committed rape on her. When they reached Belagavi
at 1:00 a.m., in night, the Police enquired them and
accused told the Police that, they are married. On enquiry
it was revealed that, accused has brought her, therefore,
the Belagavi Police brought her to Raichur Police Station.
Thereafter, she had given statement before the Magistrate
as per Ex.P2. She speaks with regard to the medical
examination.
13. She has been cross-examined by the defence
counsel. According to defence, she has not stated in her
statement that, accused told her to marry her. It is her
evidence that, accused called her through mobile phone
and told that he wants to speak five minutes with her. He
also told that, if she fails to meet him, she will not get him
again. It is her evidence that, she has not stated so in her
evidence. She was cross-examined in length and for every
suggestion she has denied all the suggestions directed to
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her. Even she has deposed ignorance to the statement as
per Ex.P2. She admits that, her father had lodged
complaint against the accused. She was again recalled
and was cross-examined at length on 25.02.2021. In the
cross-examination so directed to her, she states that her
marriage has taken place on 17.04.2017 and she has
delivered a male child. She admits that, accused is none
else than her mother-in-law's son. She admits that
accused never forced her to love him. He used to talk
with her as a family member. She admits that, her
marriage was scheduled with one Prasanna and there was
talk about the same in the family. She states that,
accused has not told her to speak with him. It was she
who called the accused on telephone. She further admits
that, to visit various places like Manthralaya and other
places she made financial arrangements. Accused has not
tied the turmeric thread to her neck. According to her,
she herself took accused to Manthralaya, Vijayawada,
Chennai, Kanyakumari, Trivendrum, Goa and Belagavi. In
unequivocal terms, she told that, in those places accused
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had no sexual intercourse with her and there was no
intention for him to have sexual intercourse with her. She
further states that, when they were in Belagavi, they came
to know that, the elderly family members have lodged
missing complaint to the Police and the Market Yard Police,
Belagavi have brought her to Raichur.
14. She further states that, when she was produced
before the J.M.F.C., Raichur, because of force by her
family members she stated before the Magistrate that,
accused had sexual intercourse with her. Even she states
that because of the said force, she has stated about tying
wedlock to her by the accused. She further states that
before the Court she is speaking truth. According to her
evidence, because of force of her family members, she had
deposed against the accused. By saying so, she has given
a clear go by to the entire statement given by her before
the Magistrate recorded under Section 164 of Cr.P.C., so
also her statement before the Police. Because of her
answers given in the further cross-examination, the
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learned Special Public Prosecutor sought permission to
conduct re-examination. Even in the re-examination, she
is consistent that because of force by the elder members
of the family, she has deposed against the accused.
Because of these answers, the learned Special Public
Prosecutor sought permission of the Court to declare her
as hostile witness. Even in the cross-examination directed
by the prosecution she is consistent that, no such offence
of kidnapping, forcible rape, without her, consent and will
and also committing penetrative sexual assault by the
accused. According to her, her parents are financially
sound. Her parents used to provide money whenever she
wanted as per her demand. It is her evidence that, if any
other person is taken with her to the aforesaid places, it
will give a bad name to the family, therefore, she took
accused with her. This evidence of PW2 narrated above,
would demonstrate that, she has given a clear go by to
the case of the prosecution. According to her, no such
offences were committed by the accused as alleged by the
prosecution.
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15. The prosecution relied upon the evidence of the
Doctor - PW14. On reading the evidence of PW14 - Dr.
Prathibha Hullur being a Gynecologist, on medical
examination of victim girl, she has issued a report as per
Ex.P13. As per her report, victim girl was aged in between
16 and 18 years. She has recovered certain material
objects from her. On medical examination, according to
her, there were no signs of any recent sexual intercourse
on her. It is stated by her that, the accused was capable
of performing sexual intercourse and to that effect
Certificate has been issued. Thus, the evidence of PW14
would not help the case of prosecution in proving the
offence against the accused. On reading the evidence of
PW2 - the victim girl as well as the evidence of PW14, it
would suggest that, no offence has taken place in the
manner alleged by the prosecution.
16. PW3 - Prabhavathi Gopal Reddy is none else
than the mother of victim girl and second wife of PW1.
According to her she has not stated before the Police as
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stated in Ex.P4. She is hearsay witness. Likewise PW4 -
G. Pandu is the uncle of victim girl and brother of PW1,
who went in search of victim girl to College with the
complainant. He too is a hearsay witness. PW5 - Veeresh
is panch-witness to Ex.P6, who had put his signature as
per the say of the Police and in the cross-examination he
says that he does not know the contents of Ex.P6. PW6 -
Mallikarjun S/o. Husenappa is also a panch-witness, who
has been turned hostile to the case of prosecution. PW7-
Narasimhalu so also PW8 - Virpaxi Reddy are the panch-
witnesses, but say that, they do not know the contents of
the panchnama. PW9 Mallappa is the Police Constable
who sent Material Objects to the FSL. PW10 - Swapna is
friend of victim girl. According to her, about 3 - 4 years
back when herself and victim girl had been to the College,
victim girl came up to the College Gate but returned to the
house on account of stomachache. Her evidence would
not help the case of the prosecution. PW11 - Kashibabu is
a person from Vijayawada who was working as Room-Boy
at Chaya hotel. PW12 - Arur Prabhakar was also a Room-
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Boy at Vijayawada at Chaya Lodge, but both turned
hostile. They never say that accused and victim girl had
visited their lodge. PW13 - A. Allabax was retired
Principal of College, he issued Exs.P10 and P12 showing
date of birth of victim girl as 13.03.1998. The contents of
these documents are not disputed. PW15 - Kariyappa was
the Assistant Engineer at PWD, Raichur, at the relevant
time, who had prepared the sketch as per Ex.P17. Much
value cannot be attached to evidence of PW15 in the
absence of corroborative evidence for the offence kidnap.
PW16 - Shalama Baig, Retired PSI at Market Yard P.S.,
who went to Vijayawada and other places and prepared
the panchnama as per Exs.P7 to P9. He has deposed
ignorance about other aspects in her cross-examination.
PW17 - Vinod Muktedar, CPI is the Investigating Officer.
17. In all criminal cases panch-witnesses are the
authors of the panchnama and Police Officers are the
supervisors of the investigation. In this case, PW2 herself
has given clear go by to the case of the prosecution.
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When she has not supported the case of the prosecution,
the evidence placed on record by the prosecution through
other witnesses pale into insignificance. That means when
a comparison of evidence of PW2, with that of evidence of
PWs.1, 3 and 4 an 10, their evidence would not inspire any
confidence that, really such an offence of kidnapping and
sexual assault has been committed on the victim girl. As
per the Medical Report, there is no evidence of recent
forcible sexual intercourse as stated in Ex.P15. The
Doctor's evidence is silent to that effect. The victim girl
herself states that, it was she who took the accused with
her. Wherever they have gone there was no forcible
intercourse by the accused on her. They have traveled to
various places, but no offence has taken place in the
manner alleged by the complainant.
18. When such offence is attributed against the
accused, no doubt, as rightly observed by the trial Court
no proof is available under Section 29 of Protection of
Children from Sexual Assault, 2012. This allegation of
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sexual assault is not proved for the simple reason that
PW2 - victim girl has not stated any specific details of the
incident throughout her cross-examination. Though she
speaks something in the examination-in-chief, but she
states in her cross-examination that, because of force by
her family members, she has stated so before the
Magistrate and before the trial Court. Even her mother
also has not stated anything in her evidence against the
accused. As rightly observed by the trial Court, the entire
evidence spoken to by the witnesses shows that, the
victim girl was never subjected to sexual intercourse as
stated by the complainant. That means evidence on
record shows that, it is the case of false implication of
accused. In view of evidence of PW2, the false implication
of accused cannot be ruled out. The very kidnapping of
the victim girl by the accused is not proved. Evidence of
PW1, his brother and wife is not supported by any of the
witnesses. So the trial Court has properly appreciated the
evidence and has rightly come to the conclusion that,
there are contradictions and omissions in the evidence of
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the witnesses, especially that the PW2-victim girl. The
evidence of PW2 materially affects the case of the
prosecution.
19. The trial Court after going through the entire
material placed on record has formed an opinion that no
offence against the accused is proved in accordance with
law. When the State is challenging the acquittal of the
accused, it is settled principle of law that while revising
such judgment of acquittal, the appellate Court must be
very cautious. Initially, missing complaint was filed. It
was alleged that PW2 was subjected to sexual assault by
the accused and her evidence is quite contrary to the case
of the prosecution. Doctor's evidence is against the
contents of the complaint and statement of PW1. Thus, it
has been very well stated that, the prosecution has utterly
failed to prove the charges leveled against the accused
beyond reasonable doubt. It is settled principle of law
that, in criminal cases under criminal jurisprudence, it is
the duty of the prosecution to prove the guilt of the
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accused beyond all reasonable doubt. That means, even if
a lightest doubt arises in the case of prosecution, that
benefit of doubt has to be extended to the accused.
20. In this case, the victim girl herself has
contradicted her own statement before the Police as well
as before the Magistrate. Therefore, the other evidence
brought on record loses its importance. The trial Court
while appreciating the evidence in proper perspective and
applying the position of law as laid down by the Hon'ble
Apex Court in various judgments so cited in its judgment
has rightly acquitted the accused. We do not find any
factual or legal error in the impugned judgment of
acquitting the accused. Therefore, the point raised supra
is answered against the appellant. In view of our findings
the appeal fails and it is liable to be dismissed.
Consequently the judgment of acquittal passed by the
accused is required to be affirmed. Resultantly we pass
the following:
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ORDER
i) Appeal is dismissed.
ii) Judgment of acquittal passed in
Spl.Case(POCSO) No.13/2015 dated 02.07.2022
by the Special Court for the cases under the
POCSO and I Additional Sessions Judge, Raichur,
is hereby confirmed.
Send back the trial Court records along with copy of
this judgment forthwith.
Sd/-
(S. SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SBS
List No.: 1 Sl No.:60
CT:BN
