Karnataka High Court
The State Of Karnataka vs Gangadhara on 13 February, 2024
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CRL.A No.1038 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.1038 OF 2018
BETWEEN:
1. THE STATE OF KARNATAKA
THROUGH MYSORE SOUTH
POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01.
...APPELLANT
Digitally signed
(BY SMT. K.P. YASHODHA, HCGP)
by RUPA V
AND:
Location: HIGH
COURT OF 1. GANGADHARA
KARNATAKA
S/O SIDDALINGACHARI
AGED ABOUT 28 YEARS
R/O AYARAHALLI VILLAGE
VARUNA HOBLI
MYSURU TALUK AND DISTRICT-570001.
2. SMT. USHA
W/O LOKESH
AGED ABOUT 30 YEARS
DADADHAHALLI VILLAGE
MYSURU TALUK.
[AMENDMENT CARRIED OUT
AS PER THE ORDERD DTD:18.11.2023]
...RESPONDENTS
(BY SMT. K.M. ARCHANA, ADV., APPOINTED AS
AMICUS CURIAE FOR R1,
SRI. SHREYAS, ADV., FOR
SRI. AMRUTH S. CHOWDHARY, ADV., FOR R2)
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CRL.A No.1038 of 2018
THIS CRIMINAL APPEAL IS FILED U/S.378(1)(3) OF
CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 08.12.2017, PASSED BY THE
VI ADDITIONAL DISTRICT AND SPECIAL JUDGE AT MYSORE IN
S.C.NO.294/2016, ACQUITTING THE ACCUSED/RESPONDENT,
FOR THE OFFENCE P/U/S 376(2)(f) AND (i) OF IPC AND ALSO
UNDER SECTION 5(m) AND (n) R/W 6 OF POCSO ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State questioning the
correctness of the judgment of acquittal dated 08.12.2017
passed by the VI Addl. District and Special Judge, Mysuru
in S.C.No.294/2016.
2. Facts in brief leading to filing of this appeal are
that the accused is a resident of Ayarahalli village, he was
working with PW-5 and CW-3 Lokesh as a Carpenter at
Mysuru. On 11.06.2016, accused came to the house of PW-
1, CW-3 Lokesh and PW-5. PW-5 invited the accused to his
house and he was allowed to stay in the house overnight.
Taking advantage of the fact that PW-1, CW-3 Lokesh and
PW-5 went outside, accused took PW-2, minor daughter of
PW-1 & CW-3, to a room and committed rape on her. After
some time, PW-1 and PW-5 returned home. The door
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was locked from inside. They knocked at the door but the
accused did not open. At that time PW-2 victim girl, her
brother and accused were inside. The door was broken
open. Son of PW-1 was found sleeping in the hall, and the
accused & PW-2 in the room. Accused was on underwear
and PW-2 was naked and her thighs appeared red. It is the
further case of prosecution that PW-2 victim informed PW-1
that she was unable to pass the urine. There was
inflammation on her private part. PW-1 informed the said
incident to the police on next day and the police registered
the FIR, took up the investigation, sent PW-2 to the hospital
for examination.
3. On completion of investigation, the charge sheet
was filed against the accused for the offences punishable
under Section 376(2)(f) & (i) of IPC and also under Sections
5(m) & (n), 6, 9(m) & (n) and 10 of the Protection of Children
from Sexual Offences Act, 2012 [for short, hereinafter
referred to as 'the POCSO Act']. The prosecution examined 8
witnesses as PWs-1 to PW-8 and got marked 11 documents
as Exs.P-1 to P-11. The trial Court, on appreciation of
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evidence adduced by the prosecution, came to the
conclusion that the prosecution has failed to prove the case
beyond reasonable doubt. To come to this conclusion, the
Trial Court has observed that there are a number of
inconsistencies and contradictions in the evidence of PWs-1,
2 & 5, which would create doubt in the mind of the Court
with regard to the incident. It has also observed that PW-2,
minor victim, has not stated anything before the doctor with
regard to the incident and it is PW-1, her mother, who
explained the incident to the doctor. The trial Court held
that the evidence of PW-2 is contrary to the evidence of PW-
1, mother of PW-2, and there is no clarity with regard to the
alleged incident. The trial Court has come to the conclusion
that PW-3 doctor has admitted in the cross examination that
redness of skin may also occur even in case if any force is
used on the said part of the skin; hence, there may be any
other reason for genital assault on PW-2, in as much as
Ex.P-3 medical certificate of the victim also does not indicate
any injuries on the private part of the victim.
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4. We have heard Smt.K.P.Yashoda, learned High
Court Government Pleader for the appellant-State,
Smt.K.M.Archana, learned counsel appointed as amicus-
curiae for respondent No.1-accused and Sri.Shreyas, learned
counsel for Sri.Amruth S.Chowdhary, for respondent No.2-
defacto complainant.
5. Smt.K.P.Yashoda, the learned High Court
Government Pleader submits that the trial Court has
committed grave error in appreciating the evidence available
on record. It is submitted that PW-2 who is the victim of the
incident is consistent in her evidence with regard to sexual
assault by the accused in her examination-in-chief as well
as in the statement recorded by the learned Magistrate
under Section 164 of Cr.P.C. It is further submitted that
PW-1, the mother of victim, has narrated the incident which
took place on 11.06.2016, no doubt there are some
variations in her statement but that itself cannot be a
ground to acquit the accused of the charged offences. It is
also submitted that PW-3, the doctor who examined PW-2,
has clearly deposed that the victim was brought to her for
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examination on 12.06.2016 and she noticed redness of labia
majora and minora with tenderness in the private part of
PW-2, which clearly indicates that PW-2 had been sexually
assaulted by the accused. If the evidence of PW-2, PW-1 and
PW-3 are read together, it gives a clear indication that the
accused, who was present in the house of PW-1 on the night
of 11.06.2016, taking advantage that nobody was in the
house, committed sexual assault on PW-2. The trial Court,
without appreciating the evidence of the prosecution in
proper perspective, proceeded to acquit the accused from the
charged offences. Learned HCGP fairly submits that the trial
Court has framed the charges against the accused for the
offence punishable under Section 376(2)(f) & (i) of IPC and
Section 5(m) & (n), read with Section 6 of the POCSO Act.
However, on perusal of the evidence available on record, the
prosecution might have failed to prove the case against the
accused for the charged offences, but the evidence indicates
that the accused committed offence punishable under
Section 9(m) & (n) of the POCSO Act and the trial Court
ought to have convicted the accused for the said offence.
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Hence, she seeks to reverse the judgment of acquittal by
convicting the accused for the offence punishable under
Section 9(m) & (n) of the POCSO Act by imposing
appropriate sentence.
6. Sri.Shreyas, learned counsel for Sri.Amruth
S.Chowdhary, for respondent No.2-defacto complainant
adopts the arguments of learned HCGP.
7. Per contra, Smt.K.M.Archana, learned counsel
appointed as amicus-curiae for respondent No.1-accused,
supports the impugned judgment of acquittal and submits
that there are a number of contradictions in the evidence of
PW-1. PW-1 has stated that on 11.06.2016 immediately after
the alleged sexual assault on PW-2, they telephoned the
police and informed about the incident. PW-1 has further
stated that on the next day, they went to Cheluvamba
Hospital, Mysuru where the doctors examined PW-2 and
informed that nothing had happened to PW-2 and directed
them to go home. PW-1 has also stated that on the same
day, immediately after the incident, police came and took
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the accused to police station, however, the case of
prosecution is quite contrary. Hence, the trial Court has
rightly disbelieved the evidence of PW-1. Learned amicus-
curiae further submits that PW-2 is not clear in her evidence
with regard to sexual assault by the accused, hence, the
trial Court has rightly come to the conclusion that there are
inconsistencies in the evidence of PWs-1 & 2. She submits
that PW-3, the doctor who examined PW-2, in her cross-
examination, admitted that redness of skin will also occur
even in case if any force is used on the said part of the skin.
Hence, the trial Court has observed that there may be any
other reason for reddening of the private part of PW-2 and
disbelieved the evidence of PWs-2 & 3. She further submits
that the accused has taken specific defence before the trial
Court that the accused is a co-worker with PW-5 & CW-3
Lokesh and because of non-payment of his wages, he came
to the house of PW-1 and requested for payment of arrears
of wages and to avoid the payment of wages, PW-1, CW-3
Lokesh & PW-5 have falsely implicated the accused in the
case. She submits that a number of suggestions were put to
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PW-1 & PW-5 during the cross-examination. Though they
have denied the said suggestions, the prosecution has failed
to establish the guilt of the accused by producing
independent witnesses. She also submits that PW-1 has
stated that one Mr.Ravi & others were present on the said
day of incident, however, for the reasons best known to
prosecution, it did not examine Ravi. The prosecution has
not examined CW-3 Lokesh, he was given up. She further
argues that PW-1 has stated that the accused had bitten the
lips of PW-2, caused bleeding injury and similarly PW-2 also
deposed that accused had bitten her cheek. However, PW-3,
the doctor who examined PW-2, has not stated anything
with regard to said injury in her evidence or in medical
certificate at Ex.P-3. Hence, the trial Court has rightly
disbelieved the evidence of prosecution. She further submits
that if the appellate Court while considering the appeal
against the judgment of acquittal and on appreciating the
evidence on record, is of the opinion that two views are
possible, the view taken by the trial Court should be adopted
unless the appellate Court comes to a definite conclusion
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that only one view is possible which leads to conviction of
the accused. In the instant case, there are a number of
discrepancies & contradictions in the evidence adduced by
the prosecution, hence, she seeks to dismiss the appeal by
confirming the judgment of acquittal.
8. We have heard learned HCGP for the appellant-
State, learned counsel for defacto complainant, learned
amicus curiae for the accused and perused the impugned
judgment, grounds of appeal & the entire evidence available
on record.
9. The prosecution has examined 8 witnesses as
PWs-1 to 8. PW-1 is the mother of the victim, PW-2 is the
victim girl and PW-3 is the doctor who examined PW-2, PW-
4 is Anganvadi worker, PW-5 is the grand father of the
victim; these witnesses are the prominent witnesses who
have spoken with regard to the incident. PWs-6 to 8 are the
police witnesses.
10. PW-1, the mother of the victim, filed complaint at
Ex.P-1 and based on the said information, crime was
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registered and investigation was carried out. PW-1 has
stated that PW-2 is her daughter, CW-3 Lokesh is her
husband and PW-5 is her father and they are residing
together along with her son Akash. She stated that she
knows the accused, who is the son of sister of PW-5. She
stated that around one year ago accused came to their
house as he was working with PW-5 and her husband. She
further stated she gave food to PW-5 and accused, thereafter
she went to her relative's house nearby to attend a function.
During that time, PW-5, accused and her children were at
the house. When she came back after 15 minutes, she
observed that public had gathered and PW-5 was also
outside the house and the door was locked from inside. She
along with PW-5 and her husband knocked the door.
However, the door was not opened. Hence, they broke open
the door and entered the house. She also stated that when
they went inside, she saw PW-2 sleeping in the hall, accused
was sleeping on the cot and her three year old son was also
sleeping in the hall. Accused was on underwear only in the
same room where PW-2 was present in naked state. PW-2's
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thighs were red and PW-2 informed that she was unable to
pass urine and feeling discomfort. She stated that as the
accused was brought out of the room, the neighbours
assaulted the accused, thereafter called the police and police
took the accused. She further deposed that on the night of
the incident, PW-2 did not disclose anything as she was
scared. On the next day she stated that the accused took
her to room and removed her clothes and bit her cheeks and
slept on her. Thereafter, herself, CW-3 Lokesh and her
mother, took PW-2 to K.R.Hospital, Mysuru. She also stated
that as PW-2 informed her of discomfort at the time of
passing urine, her aunt's son called the police and gave
information. The police informed them to bring PW-2 to
police station and accordingly they went to police station
and informed about the incident. The said complaint is at
Ex.P-1. Thereafter, police sent PW-2 to K.R.Hosptial. The
doctors examined PW-2. PW-2 could not tell anything to the
doctors with regard to the incident and it is PW-1 who
explained the incident to the doctor. PW-1 has further
deposed that before going to police station, they went to
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Cheluvamba Hospital, Mysuru and showed PW-2 to the
doctor at Cheluvamba Hospital and they informed that
nothing had happened to PW-2 and gave some tablets and
sent them home. She stated that police came to their house
after three days and conducted the mahazar as per Ex.P-2.
Police also took PW-2 to Mysuru Court where she gave
statement before the learned Magistrate and at that time she
was also present.
11. PW-2 is the victim girl aged about 5 years at the
time of incident. She stated that she knew the accused; he
had come to her house on that day and removed her
underwear, and he slept on her and bit her cheek. She
denied the suggestion that she had deposed falsely at the
instigation of PW-1.
12. PW-3 is the doctor who stated that she examined
PW-2 on 12.06.2016 at around 04.45 p.m. She observed
redness of labia majora and minora with tenderness in the
private part of PW-2. She stated that hymen of PW-2 was in-
tact and there was minimal white discharge. She also stated
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that there were no signs of vaginal penetration to PW-2 and
she is of the opinion that there was a genital assault. She
issued medical certificate as per Ex.P-3.
13. PW-5 is the father of PW-1. He stated that that he
knows the accused, he is a distant relative. He stated that
the accused came around 09.00 a.m. and informed him that
he left the house and did not eat anything for two days and
requested to provide food. Accordingly, he informed the
accused to come to his house to have food. Thereafter, he
and CW-3 Lokesh went to their work. He stated that he
came back home around 07.00 p.m. and around 08.30 p.m.
on the same day, CW-3 Lokesh came along with the
accused. At that time CW-3 Lokesh and accused were
drunk. He also stated that PW-1 informed him that there
was no bus facility to send the accused and requested him
to stay in their house that night. Accordingly, the accused
stayed in their house. He further stated that PW-1 and CW-3
Lokesh went to relative's house to attend the function. While
going, PW-1 & CW-3 Lokesh took their son along with them
and PW-2 was sleeping in the hall. Accused was sleeping on
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the cot in the hall. He stated that after sometime he went
outside to attend the nature call and returned after 15
minutes and found that the door was locked from inside. He
asked the accused to open the door, but he did not open. On
hearing his screaming voice, one Shivraj, PW-1 and CW-3
Lokesh came. All of them broke open the door. When they
went inside, they saw that accused was in the room and PW-
2 was sleeping on the mat in the said room. Accused was
wearing only underwear and the PW-2 was without
underwear, however she was wearing shirt. Accused was
brought out of the room, gathered public thrashed him. He
also stated that CW-3 Lokesh assaulted him for bringing the
accused home. He further stated that PW-2 had informed
him that accused was sleeping on her by closing her mouth.
14. The prosecution has examined PW-4 who is an
Anganawadi worker. She has stated that PW-2 was admitted
in Anganawadi on 28.05.2016 and at that time they
registered the date of birth of PW-2 as 24.02.2012.
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15. PWs-6 to 8 are the police witnesses who stated
with regard to registration of FIR, drawing of mahazar,
taking victim to the hospital, taking victim to the Magistrate
for recording statement under Section 164 Cr.P.C and the
manner of conducting investigation.
16. On re-appreciation of entire evidence available on
record, it is evident that PW-1, who is a complainant and
mother of the victim, has stated that the accused committed
sexual assault on PW-2 in their house, in the absence of
other family members. However, the said witness has stated
that immediately after the incident, they called the police,
the police came to the house and took him to the police
station. The said evidence of PW-1 is quite contrary to the
case of prosecution. The accused was arrested on
13.06.2016 between 06.00 to 7.00 a.m. She stated that
before going to police station, she took PW-2 to Cheluvamba
Hospital, Mysuru, where the doctors informed her that
nothing had happened to PW-2 and requested her to take
PW-2 to home and they gave some tablets. The said evidence
of PW-1 is contrary to the evidence of Investigating Officer
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and the prosecution case. The records indicate that the
information was provided to police on 12.06.2016 at
11.30a.m. and thereafter FIR was registered and then PW-2
was sent to Hospital for examination. PW-1 in the cross-
examination has admitted that she does not know the
contents of Ex.P-1, complaint. On perusal of examination-
in-chief, cross-examination of PW-1 and Ex.P-1 complaint,
there are a number of contradictions with regard to incident
and commission of offence by the accused. PW-1 as well as
PW-5 deposed that PW-2 had suffered a bite injury on the
lips, however, PW-3 has neither stated anything with regard
to said injury nor made any reference in the medical
certificate at Ex.P-3. Therefore, the evidence of PW-1 and
PW-5 creates doubt in the mind of Court with regard to the
incident, hence, they being the interested witnesses are not
worthy to be believed.
17. On perusal of evidence of PW-2, the victim girl
who was aged about 5 years, she stated that accused took
her to room, removed her underwear and slept on her. PW-2
in similar lines has given the statement before the learned
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Magistrate under Section 164 of Cr.P.C. PW-2 has stated
that accused had bitten her cheek, however, the same is not
corroborated with the evidence of PW-3 and the medical
certificate at Ex.P-3. PW-3 the doctor who examined PW-2
has stated that she examined PW-2 and there were no signs
of vaginal penetration to PW-2, but there were signs of
genital assault. In the cross-examination, she admitted that
the redness of skin would also occur even if any force was
used on the said part of the skin. The trial Court, on
appreciation of evidence of PWs-2 & 3, came to the
conclusion that there might be some other reason for
redness of the private part of PW-2 and there was no
evidence on record to come to a definite conclusion that
accused sexually assaulted PW-2. PW-5, father of PW-1,
stated that on the said day PW-1, CW-3 Lokesh and their
minor son went to their relative's house to attend some
function. However, PW-1 deposed that on the said night,
she alone went to relative's house. Hence, there is a major
discrepancy in the evidence of PWs-1 and 5 with regard to
the presence of her minor son in the house and also
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accompany of CW-3 Lokesh with PW-1 to the neighbour's
house. Hence, the evidence of both these witnesses is not
worthy to be believed.
18. On re-appreciation of entire evidence available on
record, this Court is of the considered opinion that there are
a number of contradictions in the evidence of PWs-1, 2 & 5.
Prosecution has not examined any independent witness
other than the family members, for the reason best known to
it. The prosecution has not examined CW-3 Lokesh, the
father of victim. The material on record clearly indicates that
the prosecution has not recovered the clothes of the victim
and accused, which is fatal to the investigation. The trial
Court on analysis of entire evidence rightly came to the
conclusion that the evidence adduced by the prosecution is
not sufficient to prove the guilt of the accused and gave
benefit of doubt to the accused. This Court does not find
any error or perversity in the findings recorded by the trial
Court calling for interference in the judgment of acquittal
passed by the trial Court.
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19. For the aforementioned reasons, we do not find
any merit in this appeal. Accordingly, the same is dismissed.
20. The High Court Legal Services Committee is hereby
directed to pay Honorarium of Rs.10,000/- to
Smt.K.M.Archana, learned counsel for the service rendered
by her as Amicus Curiae for respondent No.1.
Sd/-
JUDGE
Sd/-
JUDGE
BSR
