Karnataka High Court
The State Of Karnataka vs Shambu @ Shambulinga on 27 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No. 152 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.152 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
THROUGH CHANNAPATNA
TOWN POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 004.
...APPELLANT
(BY SMT. RASHMI JADHAV, H.C.G.P.)
AND:
SHAMBU @ SHAMBULINGA
S/O. MANTELINASWAMY
AGED ABOUT 27 YEARS
RESIDENT OF KARALAPURA, KASABA HOBLI
NANJANAGUDU TALUK - 571 301.
Digitally signed by ...RESPONDENT
LAKSHMINARAYANA
MURTHY RAJASHRI (BY SRI N.S. SAMPANGIRAMAIAH, AMICUS CURIAE)
Location: HIGH
COURT OF
KARNATAKA ***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 17-7-2017 PASSED BY THE I ADDITIONAL DISTRICT
AND SPECIAL JUDGE, RAMANAGARA, IN SPL.S.C. NO.81 OF 2013
AQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 342 AND 376 OF THE IPC, SECTIONS
3(1)(11), 3(1)(12) AND 3(2)(5) OF THE SC/ST ACT AND SECTION
5(j)(II) OF THE POCSO ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY, DR. H. B. PRABHAKARA SASTRY, J., DELIVERED THE
FOLLOWING:
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CRL.A No. 152 of 2018
JUDGMENT
The appellant-State has filed this appeal under
Section 378 (1) and (3) of the Code of Criminal Procedure,
1973 (hereinafter for brevity referred to as "the Cr.P.C.")
challenging the judgment of acquittal dated 17-7-2017
passed by the learned I Additional District and Sessions
Judge/Special Judge, Ramanagara (hereinafter for brevity
referred to as the "Special Court") in Special Sessions
Case No.81 of 2013 acquitting the accused of the offences
punishable under Sections 342 and 376 of the Indian Penal
Code, 1860 (hereinafter for brevity referred to as "the
IPC"), Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter for brevity referred to as
"the SC/ST Act") and Section 5(j)(ii) of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter for
brevity referred to as "the POCSO Act").
2. Summary of the case of the prosecution is that on
30-1-2013 at about 10:00 a.m., the accused met the
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victim girl, who was said to be belonging to SC/ST
community and CW3-Archana and CW4-Anitha, which girls
were all aged about 14 years, in Mysuru Bus Stand. The
accused, who was belonging to Uppara Caste, took them
to Bengaluru and once again to Mysuru and from there to
Nanjanagudu. In the meanwhile, CW3-Archana escaped
from them. Later, the accused took both the victim girl
and CW4 to Nanjanagudu and wrongfully confined CW2-
victim girl in the house of CW12-Raju of Karalapura
Village, knowing fully well that CW2-victim girl was a
minor and a child under POCSO Act and was also
belonging to SC/ST community, he committed sexual
assault and rape on the minor victim girl, i.e. CW2. The
said act was against the will and consent of the said victim
girl and thus, committed the offences punishable under
Sections 342 and 376 of the IPC, Sections 3(1)(xi),
3(1)(xii) and 3(2)(v) of the SC/ST Act and Section 5(j)(ii)
of the POCSO Act.
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3. After perusing the material placed before it and
hearing both side, the Special Court framed a charge as
against the respondent/accused for the offences
punishable under Sections 342 and 376 of the IPC,
Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the SC/ST Act
and Section 5(j)(ii) of the POCSO Act. Since the accused
pleaded not guilty and claimed to be tried, the trial was
held, wherein, in order to prove the alleged guilt against
the accused, the prosecution got examined in all three
witnesses from PW1 to PW3, got produced and marked
documents from Exs.P1 to P4. From the accused's side,
neither any witness was examined nor any documents
were got marked as exhibits.
4. After hearing both side, the learned Special Court,
by its judgment dated 17-7-2017, acquitted the accused of
the offences punishable under Sections 342 and 376 of the
IPC, Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the SC/ST
Act and Section 5(j)(ii) of the POCSO Act. Challenging
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the same, the appellant-State has preferred the present
appeal.
5. The appellant-State is being represented by the
learned High Court Government Pleader. Respondent was
being represented by his learned counsel, Sri Akki Mahesh
Gowda, however, since the said learned counsel did not
appear and address his arguments even after granting him
a reasonable opportunity, the Court proceeded to appoint
learned counsel, Sri N.S. Sampangiramaiah as Amicus
Curiae for the respondent.
6. Learned High Court Government Pleader for the
appellant-State and the learned Amicus Curiae for the
respondent/accused are physically appearing in the Court.
7. The Special Court records were called for and the
same are placed before this Court.
8. Heard the arguments from both side. Perused
the material placed before this Court, including the
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memorandum of appeal, impugned judgment and the
Special Court records.
9. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
learned Special Court.
10. Learned High Court Government Pleader
appearing for the appellant-State, in her brief arguments,
contended that the prosecution was not given appropriate
opportunity to further cross-examine PW2 and to cross-
examine other charge-sheet witnesses. She also stated
that even though PW2-victim girl has not initially
supported but later turned hostile to the prosecution,
however, her evidence in examination-in-chief cannot be
ignored. The said evidence given by her in examination-in-
chief fully supports the case of the prosecution and proves
the alleged guilt against the accused. She further
contended that mahazars at Exs.P2 and P3 and evidence
of PW1 also supports the case of the prosecution. With
these, she prays to allow the appeal.
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11. Per contra, learned Amicus Curiae appointed for
the respondent/accused, in his brief arguments, contended
that though the prosecution has arraigned as many as
twenty-nine witnesses in charge-sheet, however, it ended
in examining only three witnesses. Among the three
witnesses, except PW1, the other two witnesses, i.e.
PWs.2 and 3 have not at all supported the case of the
prosecution. Even though PW2, the alleged victim girl,
initially shown to have supported the case of the
prosecution, however, in her cross-examination, she has
taken a U-turn and herself demolished the case of the
prosecution. The sole evidence of PW1 in no way takes
the case of the prosecution to any desired end. Under
such circumstance, the prosecution has utterly failed to
prove the alleged guilt against the accused, as such, the
impugned judgment does not warrant any interference at
the hands of this Court.
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12. After hearing the learned counsel from both side,
the points that arise for our consideration in this appeal
are:
i. Whether the prosecution has proved beyond
reasonable doubt that on the date 31-1-2013,
the accused wrongfully confined CW2-victim
girl in the house of CW12-Raju at Nanjanagudu
and thereby, has committed the offence
punishable under Section 342 of the IPC?
ii. Whether the prosecution has proved beyond
reasonable doubt that the accused knowing
fully well that CW2-victim girl was belonging to
SC/ST community has committed rape upon
her in the house of CW12-Raju at Nanjanagudu
on the intervening night of 30/31-1-2013 and
thereby, has committed the offence punishable
under Section 376 of the IPC?
iii. Whether the prosecution has proved beyond
reasonable doubt that the accused on the date,
time and place mentioned above knowing fully
well that CW2-victim girl belonging to
Scheduled Tribe community has used criminal
force upon her and outraged her modesty and
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thereby, has committed the offence under
Section 3(1)(xi) of the SC/ST Act?
iv. Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned above that the accused
knowing fully well that CW2-victim girl
belonging to Scheduled Tribe community and
he belonging to Uppara community and as
such, was capable of dominating her will,
exploited her sexually and raped her and
thereby, has committed the offence punishable
under Section 3(1)(xii) of the SC/ST Act?
v. Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned above that the accused
knowing fully well that CW2-victim girl was
belonging to Scheduled Tribe community and
he belonging to Uppara community has
subjected CW2, an offence of rape which is
punishable with imprisonment of ten years and
above, and thereby, has committed the offence
punishable under Section 3(2)(v) of the SC/ST
Act?
vi. Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
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place mentioned above, the accused knowing
fully well that CW2 was a minor in her age, as
such, a child under POCSO Act has committed
an act of penetrative sexual assault upon CW2-
victim girl in the house of CW12-Raju at
Nanjanagudu and thereby, has committed the
offence punishable under Section 5(j)(ii) of the
POCSO Act?
vii. Whether the impugned judgment of acquittal
warrants any interference at the hands of this
Court?
13. Before proceeding further in analysing the
evidence led in the matter, it is to be borne in mind that it
is an appeal against the judgment of acquittal of the
accused for the offences punishable under Sections 342
and 376 of the IPC, Sections 3(1)(xi), 3(1)(xii) and
3(2)(v) of the SC/ST Act and Section 5(j)(ii) of the POCSO
Act. Therefore, the accused has primarily the double
benefit. Firstly, the presumption under law is that, unless
his guilt is proved, the accused has to be treated as an
innocent person in the alleged crime. Secondly, the
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accused has already been enjoying the benefit of
judgment of acquittal passed under the impugned
judgment. As such, bearing the same in mind, the
evidence placed by the prosecution in the matter is
required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the
case of Chandrappa and others -vs- State of Karnataka
reported in (2007) 4 Supreme Court Cases 415, while
laying down the general principles regarding powers of the
Appellate Court while dealing in an appeal against an order
of acquittal, was pleased to observe at paragraph 42(4)
and paragraph 42(5) as below:
"42(4) An appellate Court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent Court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
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reinforced, reaffirmed and strengthened by the trial
Court.
42(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal
recorded by the trial Court."
(b) In the case of Sudershan Kumar -vs- State of
Himachal Pradesh reported in (2014) 15 Supreme Court
Cases 666, while referring to Chandrappa's case (supra),
the Hon'ble Apex Court at Paragraph 31 of its judgment
was pleased to hold that, it is the cardinal principle in
criminal jurisprudence that presumption of innocence of
the accused is reinforced by an order of acquittal. The
Appellate Court, in such a case, would interfere only for
very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State
of Kerala reported in (2022) 8 Supreme Court Cases 440,
at Paragraph 25 of its judgment, the Hon'ble Apex Court
was pleased to observe as below:
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"25. While dealing with an appeal against acquittal
by invoking Section 378 Cr.P.C, the appellate Court
has to consider whether the trial Court's view can be
termed as a possible one, particularly when evidence
on record has been analysed. The reason is that an
order of acquittal adds up to the presumption of
innocence in favour of the accused. Thus, the
appellate Court has to be relatively slow in reversing
the order of the trial Court rendering acquittal.
Therefore, the presumption in favour of the accused
does not get weakened but only strengthened. Such
a double presumption that enures in favour of the
accused has to be disturbed only by thorough
scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous
case was reaffirmed by the Hon'ble Apex Court in the case
of Ravi Sharma -vs- State (Government of NCT of Delhi)
and another reported in (2022) 8 Supreme Court Cases
536 and also in the case of Roopwanti -vs- State of
Haryana and others reported in 2023 SCC OnLine SC
179.
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It is keeping in mind the above principles laid down
by the Hon'ble Apex Court, we proceed to analyse the
evidence placed by the prosecution in this matter.
14. The prosecution though has shown twenty-nine
witnesses as charge-sheet witnesses, however, ended up
in examining only three witnesses from its side, i.e. CW1,
CW2 and CW4. It is considering these aspects, the
learned High Court Government Pleader, in fact,
vehemently contended that the prosecution was not given
sufficient opportunity to lead evidence from its charge-
sheet witnesses, as such, the prosecution was deprived of
leading evidence in its completeness.
15. Learned Amicus Curiae attempted to show with
the help of order-sheet that the prosecution was given
ample opportunity to examine its witnesses, however, the
prosecution on its own fault did not examine other
witnesses, since the material witnesses had not supported
it, as such, the prosecution now cannot contend that it
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was not given a proper opportunity before the Special
Court.
16. A perusal of the order-sheet maintained by the
Special Court in the matter would go to show that as long
as back as on 6-6-2016, recording of evidence of CW4
(PW3) was completed. Recording of evidence of PWs.1
and 2 had taken place much earlier to that in the year
2015 itself. Even after the date 6-6-2016, the Special
Court had granted sufficient opportunity to the
prosecution to examine any of its other charge-sheet
witnesses, however, the prosecution did not make use of
the same. In that direction, the witnesses summons were
also issued to CWs.3 and 6, however, for the reasons best
known to it, the prosecution did not keep those witnesses
present and proceeded to examine them. It is only when the
prosecution failed to make use of the opportunities given
to it to examine further witnesses, the Special Court
was constrained to proceed further in the matter in
recording of the statement of the accused under Section
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313 of the Cr.P.C.
A perusal of the order-sheet would further go to show
that when the matter was slated for judgment, the
prosecution came up with an application on 20-2-2017
under Section 311 of the Cr.P.C. seeking to recall PW2 for
the purpose of further cross-examination by the
prosecution. After hearing both side, the Special Court by
its reasoned order dated 28-3-2017 rejected the said
application. However, admittedly, even after rejection of
the said application, the prosecution did not take
appropriate steps to challenge the said order, however,
proceeded to address its arguments on the main matter
which by virtue of impugned judgment dated 17-7-2017,
resulted in the Special Court pronouncing the judgment of
acquittal against the accused from the alleged offences.
Under the above circumstance, when the Special Court
had granted sufficient opportunity to the prosecution not
just to cross-examine PW2, but also to examine other
witnesses, but it is the prosecution which did not make
use of the opportunities given to it, as such, the
contention of the learned High Court Government
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Pleader that the prosecution was not granted with ample
opportunity in the Special Court is not acceptable.
17. Among three witnesses examined by the
prosecution, PW1/CW1-Vedamba was the Warden of the
Government Hostel, Channapatna, at the relevant point of
time. She has stated that at the relevant point of time, in
the year 2013, CW2-victim girl and CW4-Anitha were
staying in the hostel. Among them, CW2-victim girl was
belonging to Scheduled Tribe community and CW4 was
belonging to Other Backward Classes community. The
witness has further stated that on the date 30-1-2013,
both CWs.2 and 4 had break fast in the hostel and had
left the hostel, however, they did not return back to the
hostel till evening. Immediately, she intimated the
parents of the girls to come to the hostel, who came to
the hostel only on the next day. Thus, on the next day,
she contacted her superior, who did visit the hostel and as
per their directions, she lodged a complaint with the
Police about the missing girl. Stating so, the witness has
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identified the complaint at Ex.P1.
She further stated that on the next day at about
10:00 a.m., the victim girls came to the hostel. Stating
so, the witness has identified the scene of offence
panchanama shown to be drawn by the complainant-
Police in this regard at Ex.P2.
In her cross-examination, nothing could be elicited
so as to disbelieve her version. The witness denied that
CWs.2 and 4 were not inmates of her hostel. However,
the evidence of PW1 even if is taken as true and
believable, still at the best only go to show that CWs.2
and 4 were residing in the hostel, where PW1 was the
Warden and on the date 30-1-2013, they found missing.
In that regard, she has lodged a complaint with the Police
as per Ex.P1. The said evidence of PW1 would be in no
way helpful to the prosecution in proving the alleged guilt
for which the accused was charged in the matter.
18. The important and material witness upon whom
the prosecution had a lot of expectations was CW2-victim
girl. In her examination-in-chief, she has stated that her
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Date of Birth is 1-1-1997. During the year 2013, she was
studying in 8th standard at High School and was staying in
the hostel. Her friend, Anitha (CW4) was a student of 9th
standard in the same School and was also a hostel mate
with her. They had one more common friend, by name,
Archana. All the three of them were meeting quite often
and were discussing about the harassment given to them
in their respective houses. Witness has further stated
that on 30th day in a month of the year 2013, they met in
Railway Station at Ramanagar to go to Mysuru.
Accordingly, by leaving Channapatna around at 12 o'clock
in the afternoon, they proceeded to Mysuru. In Mysuru,
they went to Suburban Bus Stand and stayed there till
night. It was in the said Bus Stand, they met the accused,
whom the witness has identified in the Court. The accused
got himself introduced to them and on the same night,
the accused took all three of them to Bengaluru in a bus,
they reached Bengaluru in the early morning hours on the
next day. After getting down from the said bus, once
again, they boarded another bus to go to Nanjanagudu as
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directed by the accused. In the afternoon at about
12 o'clock, they reached Mysuru and from there, they
proceeded to Nanjanagudu to the house of the accused.
CW2 has further stated in her examination-in-chief that
after reaching Nanjanagudu, CW4-Anitha left for her
house which was also situated at Nanjanagudu. In the
afternoon during the midday, the accused returned to the
place, at which time, she was at Nanjanagudu Bus Stand.
The accused took the victim girl on his two-wheeler to his
house. When they reached home, it was dark in the night.
They stayed in the said house in the night. The accused
had sexual intercourse with her on that night though she
opposed the act of the accused and stated to him that the
family members would not approve his act, however, the
accused did not bother to her refusal and opposition, but
proceeded in subjecting her to sexual intercourse. After
committing the said act, he left her in the same house,
but after locking the door from outside, he left the place.
After some time, the accused once again returned to the
said house and once again had sexual intercourse with
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her. The next day morning, he took her on his motorcycle
to Mysuru Bus Stand and asked her to wait till he brings
some money, however, he did not turn up, though she
was waiting. Then as she was told to go to Channapatna,
she came back to Channapatna Bus Stand, there she met
one Sri Gopi, then the Police took her to Police Station
and recorded her statement. The witness has further
stated that the Police had also taken her to the house at
Nanjanagudu where she was kept by the accused and
drew panchanama which the witness has identified as
Ex.P3.
19. Cross-examination of PW2 was deferred at the
request of the learned counsel for the accused, as such,
cross-examination was not conducted on 11-4-2016 when
her examination-in-chief came to an end. However, her
cross-examination for the first time was conducted on
2-6-2016 and thereafter, on 27-7-2016 and once again by
the prosecution on 27-9-2016.
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20. In her cross-examination from the accused's side
on the date 2-6-2016, the witness (victim girl) took a U-
turn from the evidence which she had given in
examination-in-chief. She specifically stated that she did
not have any friends in the hostel by name Anitha and
Archana. She has stated that she is seeing the accused
before the Court for the first time. She admitted as true
that the accused had neither committed rape upon her,
nor subjected her to any sexual harassment after
kidnapping her. She also stated that she has not given
any statement to the Police in that regard.
21. The witness has further contended that she
signed the panchanama in the Police Station, however,
the Police had not taken her to the place or taken to any
place, and obtained her signature on the panchanama in
the places. She further stated that on the date
30-1-2013, she was very much in the School and did not
go outside. She admitted the suggestion as true that the
accused was no way concerned with the present crime.
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22. In her further cross-examination dated
27-7-2016, the witness reiterated that for the first time,
she was seeing the accused in the Court. She admitted as
true that on 30-1-2013, she had not gone to Nanjanagudu
by a train from Channapatna. She also admitted as true a
suggestion that she was not taken by the complainant-
Police before the Judicial Magistrate First Class to record
her statement under Section 164(5) of the Cr.P.C. She
also stated that she had no friends by name Archana and
Anitha. She categorically stated that the accused had not
taken her to Nanjanagudu. The witness also contended
that no incident of forcible sexual intercourse had
happened in the house, where she was locked during
midnight and on 1-2-2013. She categorically stated that
the accused had not taken her to any places including
Mysuru Bus Stand. She also stated that she has not
identified the accused in the Police Station.
23. Since PW2, who had initially supported the case
of the prosecution to considerable extent, has retracted
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from her stand and pleaded her total ignorance both with
respect to the accused and about his alleged commission
of crime against her, in her cross-examination, the
witness was permitted to be treated as hostile and the
prosecution was permitted to cross-examine her.
Accordingly, on the date 27-9-2016, the prosecution
conducted a detailed cross-examination of PW2, the
alleged victim girl, even in her cross-examination, she
adhered to her version given in her cross-examination
about pleading total ignorance about the alleged incident
as well with respect to involvement of the accused. Even
in her cross-examination from the prosecution side, she
maintained that the accused was a person not known to
her and no alleged incident much less as alleged in the
charge-sheet has ever taken. The suggestions made to
her by the prosecution were not admitted as true by the
victim.
24. The last witness examined by the prosecution is
PW3/CW4-Anitha. According to the prosecution, this
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witness apart from the senior classmate of the victim girl
was also a hostel mate of the victim girl in the Girls Hostel,
Channapatna, and she was also the one, who had
accompanied the alleged victim girl to Bengaluru as well to
Mysuru and up to Nanjanagudu. As such, she was the one,
who had not only seen the accused, but was also taken by
the accused to different places including Bengaluru, Mysuru
and Nanjanagudu. However, this witness in her
examination-in-chief in the open sentence itself has stated
that she does not know the victim girl of this case as well
the accused, she does not know the facts of the case and
she had never been with the victim and the accused to
Mysuru. She has stated that she has not given any
statement to the Police in that regard.
Since the witness was not supporting the case of the
prosecution in clear terms in her examination-in-chief, the
prosecution was permitted to cross-examine the said
witness after the Court treating her as hostile.
Accordingly, the prosecution though subjected PW3 to a
detailed cross-examination on the very same day itself,
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however, even in her cross-examination, the prosecution
could not get any iota of support from this witness. For all
the suggestions made by the prosecution, the witness
gave the denial answer and did not admit any of the
suggestions as true that was made by the prosecution to
her. Thus, the prosecution could able to get absolutely no
support from PW3 in any manner, except that she was in
hostel at Channapatna while studying in 8th standard in
Girls High School. Thus, the evidence of PW3 in no way
helps the prosecution to prove the alleged guilt against
the accused.
25. In the light of the above, the only evidence
available to the prosecution in order to prove its case is
the evidence of PW2, the alleged victim girl. As observed
above, the said witness who initially in her examination-
in-chief, shown her inclination to support the case of the
prosecution and stated that, she was minor as on the date
of the alleged incident and against her will and consent,
the accused has subjected her to sexual intercourse in the
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house of CW12-Raju at Nanjanagudu, however, in her
subsequent cross-examination conducted on two different
dates, has taken a diametrically opposite stand and
proceeded to say that the accused was totally a stranger
to her and the alleged incident has not at all happened.
Under such circumstance, when the witness though might
have supported the case of the prosecution in her
examination-in-chief, but later, has turned hostile to the
prosecution and did not support the contention of the
prosecution even to a smallest extent. The Court cannot
straightaway ignore her cross-examination and rely upon
her evidence in examination-in-chief and proceed to
convict the accused. Under the said circumstance, in order
to ascertain as to whether the witness has truly turned
hostile, the Court conducting the trial was expected to and
required to give opportunity to the prosecution who had
brought the witness to examine as its witness, to cross-
examine the said witness and to elicit favourable
statements supporting the case of the prosecution.
Accordingly, the Special Court in the matter had accorded
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such an opportunity to the prosecution on 27-7-2016.
Thus, at the cost of repetition it is observed that the
argument of the learned High Court Government Pleader
that the prosecution was not given a proper opportunity
to cross-examine PW2 is once again not acceptable.
26. As observed above, even though PW2, the
alleged victim girl, was subjected to cross-examine from
the prosecution side, however, it could not get any
support from the witness. It did not even succeed in
showing that the witness has turned hostile for some
reasons, as such, her evidence in examination-in-chief
cannot be totally discarded or disbelieved. The
prosecution in its attempt to cross-examine PW2 could not
able to elicit that the witness has any reasons to turn
hostile to the prosecution. On the other hand, in a
mechanical manner, the prosecution proceeded to put her
some suggestions of the statement which she had made
in examination-in-chief, however, the witness has not
admitted those suggestions as true. Consequently, the
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witness who was given an opportunity to say whether she
has given statement before the Court in her examination-in-
chief in a particular manner, herself turned that she is not
supporting the said view and her version given in her cross-
examination is her actual and true evidence.
When that being the case, since the prosecution
despite getting opportunity to cross-examine PW2 could not
elicit any favorable statement by the witness in its favour
nor could elicit any reasons or compelling circumstances
making the witness not to support the prosecution and to
turn hostile, it is not safe to solely rely upon the
examination-in-chief of PW2 and proceed further in the
matter ultimately, holding the accused as guilty of the
alleged offences. Had the prosecution elicited some reasons
in the cross-examination of PW2 or elicited some statement
by appreciating in which the Court would have come to the
opinion that the witness must have given a true account of
the incident in her examination-in-chief, but for some
compelling reasons or having won over from the other
side has retracted from her original statement, then it
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would have considered the evidence of the said witness
given in her examination-in-chief, but in the instant case,
as observed above, the prosecution did not make any
efforts in that regard to show that witness had no valid
reasons to take a U-turn from her original version. On the
other hand, the entire cross-examination of PW2, when
read with her cross-examination made by the prosecution
would go to show that no possibilities of any winning over
of the witness or exerting any pressure upon her to
retract from her previous support given to the prosecution
could be seen in her evidence. Under the said
circumstance, merely because of the fact that PW2 had
initially supported the case of the prosecution that itself is
not sufficient to accept as the true picture of the alleged
incident and proceed further in holding the accused guilty
of the alleged offences. Hence, PW2 being sole and
important witness relied upon by the prosecution in
support of its case also has proved to be not safe to
believe upon her evidence. It has to be necessarily held
that the prosecution even from the alleged fact that the
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alleged victim was minor in her age and was belonging to
Scheduled Tribe community, has failed to prove up to the
extent of the occurrence of the alleged incident which has
resulted in the alleged offences said to have committed by
the accused. Since it is appreciating the evidence of
these three witnesses in their proper perspective, the
Special Court has rightly proceeded to hold that the
prosecution has utterly failed to prove any of the alleged
guilt of which the accused was charged, we find no
reasons to interfere with it. Accordingly, we proceed to
pass the following:
ORDER
i. The appeal stands dismissed as devoid of merits.
The Court, while acknowledging the services
rendered by the learned Amicus Curiae for the
respondent-Sri N.S. Sampangiramaiah,
recommends honorarium of a sum of not less
than `5,000/- payable to him by the Registry.
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Registry to transmit a copy of this judgment
along with Special Court records to the
concerned Special Court immediately.
Sd/-
JUDGE
Sd/-
JUDGE
KVK
