Karnataka High Court

The State Of Karnataka vs Ramanji on 9 February, 2024

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                              1
                                             Crl.A.No.795/2018




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 9TH DAY OF FEBRUARY 2024

                          PRESENT

 THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

                              AND

        THE HON'BLE MR JUSTICE UMESH M ADIGA

            CRIMINAL APPEAL No. 795 OF 2018

BETWEEN:

The State of Karnataka
By Mahila Police
Tumakuru
Represented by
State Public Prosecutor
High Court Building
Bengaluru.                                    ... Appellant

(By Shri. B.N. Jagadeesha, Additional SPP)

AND:

1.     Sri. Ramanji
       S/o. Rajanna
       Aged about 27 Years,
       R/o Maraluru
       Tumakuru District.

2.     Sri. R. Chandrashekharaiah
       S/o. Rangappa
       Aged about 46 years
       Naik

       Presently R/at C/o. Thimmappa
       Near Srirama Temple
       Grama Devatha Bheedhi
                               2
                                               Crl.A.No.795/2018




     Maraluru, Tumakuru
     Tumakuru District.                        ... Respondents

(By Smt. K.M. Archana, Advocate / Amicus Curiae for R1
    Shri. S. Javeed, Advocate / Amicus Curiae for R2)

       This Criminal Appeal filed under Section 378(1) and (3)
of Cr.P.C. praying to grant leave to file an appeal against the
Judgment and order of acquittal passed by the III Additional
District and Sessions Judge, Tu makuru in Spl.C.No.380/2017
dated 12.09.2017 thereby acquitting the respondent/accused
for the offence punishable under section 376 of IPC and
Sections 4 and 6 of POCSO Act.

      This Criminal Appeal coming on for Further arguments
having been heard through physical hearing/video Conference
and reserved for Judgment on 20.12.2023, coming on for
pronouncement, this day, Umesh M Adiga J., delivered the
following:
                        JUDGMENT

This is State 's appeal challenging the judgment

dated 12.09.2017 passed by the learned III Additional

District and Sessions Judge, Tumakuru,(for short 'Trial

Court') in Special case No.380/2017. The accused has

been charge sheeted for the offence punishable under

Section 376 of IPC and Section 4 and 6 of Protection of

Children from Sexual Offences (for short 'POCSO Act').

2. We refer to the parties as their rank before

the Trial Court.

3. It is the case of the prosecution that victim

girl - PW-8 is the daughter of PW-1. It appears wife of

PW-1 died in an accident, thereafter, PW-1 - Sri. R.

Chandrashekariah has been residing with his son and

daughter in Maraluru of Tumakuru. PW-1 had been

serving as a teacher in Primary School at Kodihatti

Village of Gubbi Taluk. Everyday he was travelling from

Maraluru to his place of work. Victim girl, during 2017,

was studying in IX Standard in Empress School at

Tumakuru. She use to go to school in bus.

4. On 20.03.2017, PW-1 received phone call

from Child Welfare Committee (hereinafter for short

'CWC') of Tumakuru District, asking him to visit Child

Care Centre, Sadashivanagara, Tumakuru. Accordingly,

he had been to Child Care Centre. It was told to him

that, victim girl was pregnant and she did not disclose

proper information about the person, who was

responsible for her pregnancy. Accordingly, PW-1 was

asked to ascertain the facts from PW-8. On enquiry by

PW-1, PW-8 informed that, accused of this case was

responsible for her pregnancy. Thereafter, PW-1 has filed

complaint to Women Police Station, Tumakuru as per

Ex.P1. On the basis of the said complaint, Police

registered a case in Crime No.22/2017 for the offences

punishable under Section 376 of IPC and Sections 4 and

6 of POCSO Act as per Ex.P15.

5. PW-9 - Smt. Nirmala (PSI), Women Police

Station and PW-10 - Smt. Parvathamma S (PI), Women

Police Station, investigated the case. On conclusion of

the investigation, submitted the charge sheet against the

accused for the offences punishable under Section 376 of

IPC and Sections 4 and 6 of POCSO Act, before Special

Court (for short herein after referred to as 'Trial Court').

The learned Session Judge took cognizance of the offence

and registered Special case.No.380/2017 and secured

the presence of the accused. Accused was in judicial

custody. The learned Session Judge supplied copy of

charge sheet and enclosures to the accused. The learned

Sessions Judge heard the accused and framed the

charges for the aforesaid offences. The accused pleaded

not guilty and claimed to be tried.

6. In an attempt to prove its case, prosecution

has examined PWs-1 to 10; it got marked Exs.P1 to P17

and closed its evidence. The accused was examined

under Section 313 of Cr.P.C. and his answers were

recorded. Accused did not lead defence evidence.

7. The learned Trial Judge heard the arguments

of both side and framed one point for determination. On

appreciation of the evidence on record, the learned Trial

Judge answered the said point in the 'Negative' and

acquitted the accused of the charges levelled against him

by the impugned judgment dated 12.09.2017, same is

challenged in the present appeal.

8. We have heard the arguments.

The learned Additional State Public Prosecutor on

behalf of the State vehemently contended that PW-1 in

his evidence has stated about the incident. PW-8, who is

a victim of the incident, though turned hostile before the

Court, has stated about the incident before the Police as

well as before the Magistrate while recording her

statement under Section 164 (5) of Cr.P.C. In Ex.P1, as

per information of PW-8, PW-1 has given the complaint

alleging that accused had committed offences.

Investigating Officer, collected blood sample of child of

PW-8 and accused and sent for DNA Test. The Scientific

Officer after examining the materials sent to him, gave

certificate stating that accused is the biological father of

the child born to PW-8. The said report is conclusive

proof to hold that accused had committed crime against

the minor, who was aged about 14 years at the time of

incident.

9. The learned Additional State Public Prosecutor

has further submitted that the Investigating Officer

secured Ex.P6 from the School, wherein the victim had

studied. To prove the said certificate, prosecution

examined PW-5, who was in charge Head Master of

Empress High School on the date of issue of Ex.P6. It

proves the date of birth of victim as 22.02.2001. The

said certificate is not seriously challenged. As per

Section 94 of Juvenile Justice Act, 2015 (hereinafter for

short 'JJ Act, 2015'), the said document is acceptable to

prove age of the victim as minor. PWs-9 and 10 are the

investigating officer, who have stated about the

investigation done by them. There are no reasons to

disbelieve their evidence. Other witnesses are not

material witnesses. Victim girl as well as PW-1 for the

reasons best known to them did not support case of the

prosecution. That is not the reason for acquittal of the

accused. Scientific evidence produced by the prosecution

conclusively proved that the accused had committed the

said crime. The learned Trial Judge did not consider the

evidence on record properly. Without proper application

of mind, the learned Trial Judge acquitted the accused.

Therefore, prayed to interfere with the said finding and

reverse the judgment.

10. The learned Amicus Curiae for

accused/respondent No.1 submits that all the witnesses

including victim have turned hostile to the case of

prosecution. There is no sufficient evidence to prove that

blood sample of the daughter of the victim as well as of

accused taken in accordance with law. The Scientific

Officer, who has issued Ex.P17, is not examined and it

was marked through Investigating Officer. Therefore,

Ex.P17 is not proved. Mere production of Ex.P17 is not

sufficient. The victim/ PW-8 did not give any evidence

against the accused to believe that accused was

responsible for her pregnancy or accused had forceful

sexual intercourse with her. In view of these reasons,

mere production of Ex.P17 is not sufficient to convict the

accused for such a serious offence. Therefore, prayed to

acquit the accused.

11. Following points emerge for our

determination:

i. Whether prosecution proved beyond reasonable doubt that about an year prior to 19.04.2017 at Maraluru in Tumakuru District, the accused persuaded minor victim girl and had repeated forceful sexual intercourse with her against her wish and due to the same she became pregnant and delivered female baby on 19.04.2017 at 10.20 a.m. in District Hospital, Tumakuru and thereby accused has committed an offence punishable under Section 376 of IPC?

ii. Whether prosecution proved beyond reasonable doubt that about an year prior to 19.04.2017 at Maraluru in Tumakuru District, the accused knowing that the victim girl was a very innocent minor and unaware about sexual acts, persuaded her when she was alone at home and had aggravated repeated forceful sexual intercourse with her against her wish and due to the same she became pregnant and delivered female baby on 19.04.2017 at 10.20 a.m. in District Hospital, Tumakuru and thereby accused has committed an offence punishable under Sections 6 of the POCSO Act?

iii. Whether the findings of the learned Trial Judge is perverse, arbitrary and against the law and interference by this court is required?

iv. What order

12. In this case, PW-1 is the father of the PW-

8/victim girl. In his evidence, he has stated that his

daughter aged about 14 years was studying in Empress

School at Tumakuru. On 20.03.2017, he received a call

from CWC, Tumakuru, intimating him that he has to visit

said Committee Office since his daughter was in the

custody of the Committee. He went to the Committee

and on enquiry, he got information from the Committee

that his daughter was pregnant and accused was

responsible for her pregnancy. Thereafter, he lodged the

complaint as per Ex.P1. Police came to his house and

draw mahazar as per Ex.P2 in the presence of one

Thimmappa and Babu. He has stated that his daughter

was born on 22.02.2001.

13. In his cross-examination, PW-1 has stated

that birth of his daughter was informed to the concerned

officer maintaining Birth Register at Mallasandra. He has

not given the copy of the Birth Certificate to the Police.

His daughter has not complained to him that accused

raped her. On the basis of information given by CWC, he

reported to Police that accused was responsible for

pregnancy of his daughter.

14. PW-1 in his evidence does not support the

case of the prosecution. He has not stated that his

daughter told him that accused had raped her

repeatedly, when she was alone at home. It is pertinent

to note that victim girl was aged 14 years at the time of

the incident. It is difficult to believe that he had any idea

that his daughter was pregnant of eight months, when

the complaint was lodged. It is also pertinent to note

that PW-8 did not inform PW-1 about any symptoms of

pregnancy to him; on the contrary, she informed to CWC

that some on committed sexual acts with her. It is also

worth to note that the concerned police did not produce

the accused before CWC in the presence of victim and

got identified that he was responsible for the incident. It

appears that PW-1 has not revealed full details before

the Court. The prosecution did not treat PW-1 as hostile

witness and cross-examined him to bring out the truth

from him. Therefore, the evidence of PW-1 does not help

the prosecution to prove the guilt of accused.

15. The material and star witness in this case is

PW-8 i.e. Victim girl. In her evidence, she has

completely turned hostile to the case of prosecution.

Even she has stated that she does not know as to who

was responsible for her pregnancy and she did not know,

who had sexual intercourse with her. She has stated

that someone might have had sexual intercourse with her

without her knowledge. The prosecution treated her as a

hostile witness and cross-examined her. In the entire

cross-examination, nothing was brought out to show that

accused was responsible for the incident.

16. According to the case of prosecution, i.e. her

statement recorded by the Magistrate, she was unaware

about the good and bad touch. Prior to approaching the

helpline phone Number, even she had no idea about the

sex. On one day, in the month of February, a program

was held in Siddaganga College and she attended the

said program, wherein an awareness was created

regarding sexual abuse of a minor children. During the

said awareness program, she came to know about the

sexual abuse of a child. After attending programme she

believed that she was also victim of sexual abuse. She

called helpline Number 1098 and intimated about sexual

abuse on her. Thereafter members of CWC contacted her

and took her to the government hospital, wherein it was

ascertained that she was pregnant. On going through

the said statement, it appears that the victim was very

innocent and even she had no idea about the sexual

abuse. Under these circumstances, it cannot be held that

PW-8 was deposing falsely before the Court that she was

unaware as to who had committed sexual acts with her.

Of course, in her cross-examination by the prosecution,

she had denied the said facts of giving statement before

the Magistrate as per Ex.P13. Evidence of PW-8 is also

not helpful to the prosecution to prove guilt of accused.

17. PWs-2, 3, 4 are circumstantial witnesses, who

have seen accused and PW-8 wandering together.

However, during the evidence, they have turned hostile

and not supported the case of prosecution.

18. PW-5 was incharge Head Master of Empress

School, who had issued Certificate containing the date of

birth of victim as 22.02.2001. In his cross-examination,

he has stated that he has no idea as to which document

was given at the time of entering the date of birth of

victim in the School Register. It is pertinent to note that

the concerned register or relevant page of the such

produced to corroborate the Ex.P6. Ex.P6 is not a copy

of any records. PW-5 in his evidence has not stated that

where the said particulars were entered. He has stated

that Police sent a requisition letter calling upon him to

give the certificate, accordingly, he gave the certificate

as per Ex.P6. It indicates that it is not an authenticated

record.

19. PW-1 in his evidence has stated that

information of birth of his daughter was intimated to

concerned officer, who maintains registration of birth and

death records. However, he did not give the copy of the

same to the Police. It appears that even Police did not

obtain certificate from the concerned authority to prove

the age of the victim girl. Even the prosecution did not

secure Register maintained in the School to prove Ex.P6.

Therefore, serious doubt arises regarding correctness of

date of birth mentioned in Ex.P6 and prosecution has not

proved beyond reasonable doubt about the age of the

victim girl.

20. As observed above, the main witness in this

case is PW-8, who is the victim of the incident. In her

evidence before the Court, she has completely turned

hostile to the case of prosecution. Her statement was

recorded by the learned Magistrate at Tumakuru. While

recording her statement under Section 164 of Cr.P.C.,

she has stated that a person by name Ramanji, who was

friend of her maternal uncle, had raped her and as a

result of which she became pregnant. She contacted

helpline phone number 1098 and members of CWC

approached her and they took her to the hospital,

wherein on clinical examination, it was found that she

was pregnant. This fact was not stated by her while

recording her evidence before this court, in the presence

of accused. Even she has denied statement given before

the Magistrate as per Ex.P13 as well as statement given

before the Police as per Ex.P14. As already discussed

above, there is nothing on record to show that she was

won over by the accused or for any reasons she was not

supporting the case of prosecution or giving false

evidence before the Court. Therefore, the only witness in

this case, who could throw light on the case of the

prosecution, has turned hostile and not supported the

case of prosecution.

21. The next important witness is PW-1, who is

father of victim. Though he has filed complaint against

accused but during the course of the evidence, he has

not stated much regarding the incident taken place so

also involvement of the accused in the case.

22. The learned Additional State Public Prosecutor

relies on DNA report produced at Ex.P17. In Ex.P17, the

expert opines that accused is biological father of

daughter of PW-8. The learned Additional State public

Prosecutor further submits that in view of the DNA

report, that accused is biological father of daughter of

PW-8. It conclusively proves that accused had committed

the said offence and due to the rape committed by the

accused the victim girl became pregnant and delivered

baby girl.

The submission of learned Additional SPP is not

acceptable. It is pertinent to note that Ex.P17 is an

expert opinion. Only on the basis of such expert opinion,

the Court cannot come to the conclusion that the accused

had committed the said crime. If PW-8 had supported the

case of prosecution and identified the accused that he

had committed rape on her repeatedly as alleged in her

previous statement as per Ex.P13 and Ex.P14, then

Ex.P17 would have helped the prosecution to prove that

the evidence of PW-8 is reliable. However, in this case

there is no evidence at all or there is no iota of evidence

to believe that accused had committed the crime against

the victim girl. When such is the case, only on the basis

of DNA report, the Court cannot jump to the conclusion

that accused had committed rape on the victim girl and

because of which she became pregnant. Therefore, Ex.P-

17 alone do not help the prosecution to prove that

accused had committed the said crime.

23. In a similar facts of the case, in the case of

Premjibhai, Bachubhai Khasiya vs. State of Gujarat

and another1, the Division Bench of Gujarat High Court

considering the 185th report of the Law Commission of

India and also relying on the judgment of Hon'ble

Supreme Court in the case of Kamti Devi & another v.

Poshi Ram2. Similarly, relying on the decision in R. v.

Watters (2000 All England Reporter 1469) it is held

that:

"28. We appreciate the action on the part of the Investigating Police Officer to opt for collection of scientific evidence in form of DNA Report. DNA Report plays an important role and its need and usefulness cannot be underestimated. It is useful to any Investigating Police Officer to assess as to whether his investigation of a crime is on right track or not. It would save people from facing unwarranted prosecutions. But, when the question of appreciation of evidence of such report arises before a criminal Court, especially when such report is positive, it shall look for other evidence, particularly when such other evidence does not fall in line with the result in the positive DNA report or when such other evidence is in direct conflict with the opinion

2009 Cr.LJ 2888

(2001) 5 SCC 311

expressed in such positive report. Such report can be used as corroborative evidence i.e. an evidence to substantiate other evidence. A positive DNA report cannot be the sole and conclusive evidence to record conviction in a criminal case. In the case on hand, considering the peculiar facts and circumstances and evidence on record, the positive DNA Report should not have been accepted by the trial Court in isolation, i.e. as sole piece of evidence to record the conviction". (emphasis is ours)

24. In this case, except the DNA report, there are

no other reliable evidence on record, to s m girl because

of which she became pregnant. Had victim girl, how that,

accused had repeatedly committed rape on victim girl

i.e., PW-8, supported the case of prosecution, things

would be otherwise. In this case, in the absence of any

other reliable evidence on record and only on the basis of

expert evidence, the Court cannot record conviction

against the accused.

25. The learned trial Judge considered the

evidence on record and rightly acquitted the accused.

There are no reason to interfere in the said findings. It is

true that learned trial Judge did not appreciate the

evidence in detail, however, he came to the right

conclusion on the basis that there are no reliable

evidence on record and hence the said findings cannot be

considered as perverse or arbitrary.

26. The learned counsel for Additional State Public

Prosecutor in reply submits that in view of Section 29 of

the POCSO Act, burden is on the accused to disprove the

commission of said crime. He would submit that there is

presumption as to certain offences, as per Section 29 of

POCSO Act which reads that:

"Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of the Act, the Special Court shall presume that such person has committed an offence, unless the contrary is proved."

Prosecution by the evidence of PW-1 and report of

DNA proved that accused /respondent No.1 had

committed the offence punishable under Section 6 of

POCSO Act. However, to rebut the evidence of

prosecution accused has not lead any evidence. In the

cross-examination also nothing is brought out to

disbelieve expert opinion. Hence prosecution proved guilt

of accused beyond reasonable doubt.

27. The submission of learned Additional State

Public Prosecutor is not acceptable. In any criminal law, it

is burden on the prosecution to prove the guilt of the

accused beyond all reasonable doubt. When there is no

prima facie case against accused and when evidence is

absent, only on the basis of presumption of law, an

accused shall not be convicted. In case, if the

prosecution has made out a prima facie case and there

are sufficient materials to believe that accused had

committed the crime stated in Section 29 of the POCSO

Act, then the burden shifts on the accused to disprove

the said evidence led by the prosecution. Unfortunately,

in this case, there is no evidence against the accused to

believe or to hold that he had committed the offence

punishable under Section 6 of the POCSO Act or Section

376 of the IPC. When there is no such evidence, there is

no question of accepting the case of the prosecution or

convicting the accused for such a grave offence.

Therefore, the question of proving of innocence by the

accused does not arise. The provision of Section 29 of

the POCSO Act also does not help the prosecution to

convict the accused for the alleged offences.

28. PW-6 is Medical Officer serving in District

Hospital, Tumakuru. In her evidence, she has stated that

on 17.03.2017, at about 11.05 a.m., CWC members

brought a girl by name Pallavi and on clinical

examination of the said girl, she found that victim girl

was pregnant of 34 weeks and 4 days. The approximate

date of delivery was assessed as 24.04.2017. PW-8 has

also stated before the PW-6 that a person who used to

come to repair the cable TV had raped her and she could

not notice that she became pregnant. It is not in dispute

that the victim girl had delivered baby girl and when she

was taken to hospital by CWC, she was pregnant.

Therefore, evidence of PW-6 do not help the prosecution

to connect the accused with the guilt. Moreover, PW-8

herself did not support the case of prosecution and PW-6

on the basis of alleged information given by PW-8, had

stated that accused had committed the offence. PW-6 is

hearsay witness and her evidence do not help.

29. PW-7 is also Medical Officer of District Hospital

Tumakuru. She has stated about delivery of baby girl by

victim. This fact is not in serious dispute. Therefore,

evidence of PW-7 do not help the case of prosecution to

connect the accused with the guilt.

30. PWs-9 and 10 are investigating officers and

both of them have stated about the investigation done by

them. Since material witnesses have corroborated their

evidence, the evidence of PWs-9 and 10 looses

importance. Only on the basis of evidence of

investigating officers, the accused cannot be convicted.

For aforesaid said reasons, the evidence of PWs-6, 7, 9

and 10 do not help the case of prosecution to prove the

guilt of the accused.

31. As already stated above, the learned Trial

Judge on appreciating the evidence, has recorded his

finding that guilt of the accused was not proved by the

prosecution. The grounds of appeal are not sustainable.

On the basis of assumption and presumptions, the Court

cannot convict the accused for such a grave offence.

Prosecution has failed to prove the guilt much less

beyond reasonable doubt.

32. For above said discussions, we answer point

Nos. 1 to 3 in the 'Negative'.

33. For the above said reason, we proceed to pass

the following:

ORDER

(i) Appeal is dismissed.

(ii) Impugned judgment passed by the learned III Additional District and Sessions Judge, Tumakuru in Special case No. 380 of 2017, dated 12.09.2017, is confirmed.