Karnataka High Court

Krishna Dasharath Nitturkar vs The State Of Karnataka on 10 January, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

                                                       -1-
                                                              NC: 2024:KHC-D:684
                                                             CRL.A No. 100149 of 2015




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                  DATED THIS THE 10TH DAY OF JANUARY, 2024

                                                    BEFORE
                              THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
                                   CRIMINAL APPEAL NO. 100149 OF 2015 (C)
                          BETWEEN:

                          KRISHNA DASHARATH NITTURKAR
                          AGE: 27 YEARS, OCC: COOLIE,
                          R/O. NANDIHALLI ROAD,
                          DESUR, TQ AND DIST: BELAGAVI
                                                                          ...APPELLANT
                          (BY SRI LAXMAN T. MANTAGANI, ADVOCATE)

                          AND:

                          THE STATE OF KARNATAKA
                          BY BELAGAVI RURAL POLICE STATION,
                          R/BY SPP HIGH COURT OF PREMISES,
                          DHARWAD.
                                                                        ...RESPONDENT
                          (BY SRI RANGASWAMY R., HCGP)

                                 THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.
            Digitally
VIJAYALAXMI signed by
M BHAT      VIJAYALAXMI
            M BHAT
                          SEEKING TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT
                          OF CONVICTION OF SENTENCE DATED 03.08.2015 PASSED BY
                          COURT OF THE III ADDL. SESSIONS JUDGE, BELAGAVI IN
                          S.C.NO.292/2013 OFFENCES PUNISHABLE UNDER SECTION 363,
                          366, 366A, 376 OF IPC AND SEC 4 OF POCSO ACT 2012 AND
                          ALLOW THE ABOVE CRIMINAL APPEAL.


                                 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
                          COURT DELIVERED THE FOLLOWING:
                               -2-
                                      NC: 2024:KHC-D:684
                                    CRL.A No. 100149 of 2015




                          JUDGMENT

1. This criminal appeal under Section 374(2) of the

Code of Criminal Procedure, 1973 is filed with a prayer to set

aside the Judgment and order of conviction and sentence

passed by the Court of III Additional Session Judge, Belagavi

dated 03.08.2015 in SC No.292/2013.

2. Heard the learned counsel for the parties.

3. Facts leading to filing of this appeal as revealed

from the records narrated briefly are, on 26.06.2013, at about

4.00 pm, the appellant herein allegedly kidnapped the daughter

of the complainant CW2, who was aged about 17 years 10

months. The appellant after making false assurance of

marrying minor victim girl had kept her in his custody and had

sexual intercourse with her, in a hotel room for the period from

28.06.2013 to 05.07.2013. Based on the complaint of the

victim's mother, FIR in Crime No.182/2013 was registered and

during the course of investigation the appellant was arrested.

Investigation in the case was completed and charge sheet was

filed for the offences punishable under Section 363, 366, 366A

and 376 of IPC and Section 4 of POCSO Act, 2012. The charge

NC: 2024:KHC-D:684

framed by the trial Court was read over and explained to the

appellant, who pleaded not guilty and claimed to be tried. The

matter was therefore posted for recording the evidence of the

parties.

4. Before the Trial Court, the prosecution to prove its

case had examined 18 witnesses as P.W.1 to P.W.18 and got

marked 19 documents as Ex.P.1 to Ex.P.19. The prosecution

also got marked 11 material objects as M.O-1 to M.O-11. After

completion of recording of prosecution evidence, the statement

of accused under Section 313 of Cr.P.C. was recorded.

However, the appellant did not choose to lead any defence

evidence nor he had got marked any documents in support of

his defence. The Trial Court after hearing the arguments

addressed by both sides, vide the impugned Judgment and

order, convicted the appellant for the offences punishable

under Sections 363, 366, 376(2)(n) of IPC and Sections 4 and

6 of POCSO Act 2012 and had sentenced him to undergo

imprisonment for 10 years for the offence punishable under

Section 6 of the POCSO Act. For the offences punishable under

Section 376(2)(n) of IPC and for the offence punishable under

Section 4 of POCSO Act, the appellant was sentenced to

NC: 2024:KHC-D:684

undergo simple imprisonment of 7 years, for the offences

punishable under Sections 363 and 366 of IPC he was

sentenced to undergo simple imprisonment for a period of 3

years. All sentences were directed to run concurrently.

5. Being aggrieved by the said Judgment and order on

sentence passed by the Trial Court, the appellant has preferred

this appeal before this Court.

6. Learned counsel for the appellant having reiterated

the grounds urged in the memorandum of appeal, submits that

the trial Court has erred in convicting the appellant though the

victim and other independent material witnesses have not

supported the case of the prosecution. He submits that the

victim girl has clearly stated that she had filed a false complaint

at the instance of CW11 who is her uncle. The prosecution has

not examined CW11 before the trial Court. He also submits

that during the pendency of the case before the trial Court, the

appellant and the victim had got married and they have two

children. The parties have also filed an application under

Section 320 of Cr.P.C. before this Court with a prayer to

compound the offences. Accordingly, he prays to allow the

appeal.

NC: 2024:KHC-D:684

7. Per Contra, the learned HCGP has opposed the

prayer made in the appeal memo. He submits that the victim

was a minor as on the date of the appellant committing sexual

assault on her. PW1 to 3 had clearly supported the case of the

prosecution. It is only after the witnesses were recalled after a

considerable period of time, PW1 and PW2 have deposed

against the case of the prosecution. The said witnesses were

under compulsion. The offences for which the appellant has

been convicted are not compoundable and therefore,

application filed by the parties to compound the offences needs

to be rejected. The age of the victim has been proved by

producing her school certificate. Accordingly, he prays to

dismiss the appeal.

8. Before the Trial Court, the prosecution to prove its

case had examined 18 witnesses as P.W.1 to P.W.18. PW1 is

the complainant and the mother of the victim. PW2 is the

victim. Though PW1 had initially supported the case of the

prosecution, in her cross examination, she has stated that her

daughter had married the appellant and the said marriage was

also registered in the office of the Sub-Registrar. She has

stated that she is not aware of the fact that the appellant had

NC: 2024:KHC-D:684

taken her daughter with him prior to lodging the complaint.

She has also stated that her daughter had studied up to 12th

standard and since she had failed in a subject she had

discontinued her studies.

9. PW2 who is the victim girl has also stated that she

had studied up to II PUC. During the course of her

examination-in-chief she has stated that the appellant had

proposed to marry her and he had stated he was in love with

her. This was informed by her to her mother who had advised

her not to go along with the appellant. She has further stated

that the appellant had taken her along with him and stayed

together for four days in hotel room. In her cross examination,

she has admitted that after the death of her father, her mother

and herself were taken care of by her uncle Sadananda. Prior

to filing of the complaint, PW1 had approached the parents of

the appellant with a proposal of her marriage with the

appellant. She has admitted that she was willing to marry the

appellant. She has further admitted that her uncle Sadananda

was not willing to perform her marriage with the appellant and

therefore, at his instance, the police complaint was lodged. She

has further stated that during the course of examination-in-

NC: 2024:KHC-D:684

chief, she had deposed as per the instruction of her uncle

Sadananda. She has further stated that her marriage with the

appellant was registered in the office of Sub Registrar, Belgaum

in the month of June 2014 and eversince then, she has been

living with him and she was pregnant at the time of deposing.

Though the prosecution has argued that PW1 and PW2 were

under compulsion and therefore, they had deposed against the

case of prosecution, during the course of their cross

examination such a suggestion was not made to the witnesses

during the course of further chief examination of these

witnesses by the public prosecutor.

10. PW3 is the son of PW1 and brother of PW2. He also

has admitted that his sister has married the appellant. PW9-

Hanmanth is the uncle of PW2 and PW3. He is their father's

elder brother. He has completely turned hostile to the case of

the prosecution. During the course of his cross examination,

the prosecution has not elicited any material against the

appellant. PW15 who is another independent witness has also

turned hostile to the case of the prosecution. PW4 and PW5

who are the panch witnesses to the spot Mahazar Ex.P4 also

have turned hostile to the case of prosecution. PW6 and PW7

NC: 2024:KHC-D:684

who are the panch witnesses to the seizure mahazar of the

clothes also had turned hostile. PW8 who is the panch witness

to the seizure mahazar of the clothes as per Ex.P7 has also

turned hostile to the case of the prosecution. PW10 is the

police constable who has carried FIR. PW11 who is the police

constable who got the appellant examined before the Medical

officer and PW12 is the head constable who carried 14 articles

to the forensic science laboratory. PW13 is the Police Sub

Inspector who registered the complaint, drawn the mahazar

and had recorded the statement of witnesses during the course

of investigation. He had handed over the further investigation

to PW18. PW14 is the medical officer who has examined the

victim on 06.07.2022. PW17 is the High School Head Master

who has deposed that he had issued Ex.P16 -school record on

which the prosecution has placed reliance to prove the age of

the victim. PW18 is the investigation officer he has spoken

about he conducting further investigation and filing the charge

sheet.

11. The medical reports that are available on record

would go to show that the age of the victim was above 18

years. The radiologist report states that the victim was aged

NC: 2024:KHC-D:684

about 20 years. As per the school record, the victim was aged

about 17 years 10 months. It has come on record that the

victim had completed her II PUC and was staying at home since

she had failed in one subject. Therefore, a serious doubt arises

with regard to the age of the victim girl.

10. The medical records also do not conclusively proved

that the appellant had forcible sexual intercourse with the

victim girl. The material on record would go to show that the

victim girl had no injury on her body when she was medically

examined immediately after filing of the complaint. The

Forensic Science Laboratory report at Ex.P.17 would reveal that

the presence of blood stain was not detected on articles No.1 to

14 nor the presence of seminal stains was detected in the said

articles. The presence of spermatozoa was also not detected in

the vaginal and cervical smear of the victim.

11. The victim/P.W.2 has admitted during the course of

cross-examination that her uncle Sadanand was against the

proposal of performing of her marriage with the appellant. She

has also admitted that her mother was willing to perform her

marriage with the appellant and prior to filing of the complaint,

her mother had approached the parents of appellant with the

- 10 -

NC: 2024:KHC-D:684

proposal of her marriage. She has stated that since her uncle

Sadanand, who was taking care of her family after her father

had died was not in favour of performing of her marriage with

the appellant, therefore a complaint was lodged against the

appellant. Considering the admissions made by the

victim/P.W.2 during the course of cross-examination, a serious

doubt arises with regard to allegations made against the

appellant. It has come on record that during pendency of the

trial, the appellant and the victim have got married and their

marriage was also registered before the office of Sub-Registrar.

The Trial Court has proceeded to convict the appellant

particularly taking into consideration that the victim was aged

about 17 years 10 months as on the date of alleged incident in

the complaint. On the basis of material available on record, this

Court has found that there is a serious discrepancy with regard

to the age of the victim. Under the circumstances, in the

background of statement made by the victim during the course

of her cross-examination, I am of the opinion that the trial

Court was not justified in convicting the appellant for the

offences for which he was charged. From the overall

appreciation of the material on record, it is seen that the

- 11 -

NC: 2024:KHC-D:684

prosecution has failed to establish its charges against the

appellant beyond reasonable doubt. Under the circumstances,

the impugned Judgment and order of conviction and sentence

passed by the Trial Court is liable to the set aside. Accordingly,

the following :

ORDER

(i) Appeal is allowed.

(ii) The impugned Judgment and order of

conviction and sentence passed by the III Additional

Sessions Judge, Belagavi in Sessions case

No.292/2013 on 03.08.2015 is set aside.