Karnataka High Court
Mallappa @ Malleshappa S/O Siddappa ... vs State Of Karnataka on 10 January, 2024
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CRL.A No. 100207 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10th DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100207 OF 2020
BETWEEN:
MALLAPPA @ MALLESHAPPA S/O. SIDDAPPA
SHIRASANGI,
AGE: 35 YEARS, OCC: COOLIE,
R/O: KAUDIKALLAPUR,
TQ: AND DIST: HAVERI.
...APPELLANT
(BY SRI. A.M. GUNDAWADE, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD
THROUGH HAVERI RURAL POLICE STATION.
Digitally signed
by ...RESPONDENT
SHIVAKUMAR
HIREMATH
Date:
2024.01.11 (BY SRI. PRAVEENA Y. DEVAREDDIYAVAR, HCGP;
10:45:05 +0530
SMT. ANURADHA DESHAPANDE AMICUS CURIAE FOR PW1
(VICTIM))
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 07.05.2020, PASSED AGAINST THE APPELLANT/ACCUSED
NO.1 IN SPL.S.C.CASE.NO.182/2017, BY ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND SPECIAL JUDGE, AT HAVERI, FOR
THE OFFENCES UNDER SECTION U/SEC.448, 450, 376(2)(I) AND
(N) OF INDIAN PENAL CODE AND U/SEC. 4, 6, 8 AND 12 OF
POCSO ACT.
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CRL.A No. 100207 of 2020
THIS APPEAL, COMING ON FOR HEARING HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI
K, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed by the convicted accused directed
against the Judgment and order of sentence passed in Spl.
S.C. Case No.182/2017 dated 07.05.2020 passed by the I
Additional District and Sessions Judge and Special Judge,
Haveri, wherein, the learned Sessions Judge has convicted
the accused No.1/appellant for the offences punishable
under Sections 448, 450, 376 (2) (i) & (n) of IPC and
Sections 4, 6, 8 and 12 of Protection of Children from
Sexual Offences Act, 2012 (for short 'POCSO Act') and
sentenced him to undergo imprisonment for 10 years and
to pay a fine of Rs.5,000/- and in default of payment of
fine he shall undergo simple imprisonment for 01 month
for the offence punishable under Section 450 of IPC,
sentenced to imprisonment for life and to pay fine of
Rs.10,000/- and in default of payment of fine he shall
undergo simple imprisonment for a period of 06 months
for the offences punishable under Section 6 of POCSO Act
and also under Section 376 (2)(i) and 2(n) of IPC and
Section 4 of POCSO Act together with Section 6 of POCSO
Act. The appellant is also sentenced to undergo
imprisonment for a period of 05 years and to pay fine of
Rs.2,000/- and in default of payment of fine he is
subjected to undergo simple imprisonment for a period of
10 days for the offence punishable under Section 8 of
POCSO Act and further he is also sentenced to undergo
imprisonment for a period of 03 years and to pay fine of
Rs.2,000/- and in default of payment of fine he shall
undergo simple imprisonment for a period of 10 days for
the offence punishable under Section 12 of POCSO Act.
Learned sessions judge also has order that all the
sentences shall run concurrently with the life sentence.
2. The apothegm addressed by the prosecution
are that, the victim (P.W.1) in this case being a minor and
resident of Kaudikallapur village, was staying in Girls' Pre-
Metric Hostel situated in Haveri and used to visit her
house frequently. It is in this background, the
appellant/accused No.1 used to visit her house oftenly and
was talking to her on the pretext that, he had vowed to
marry her and on that context he used to behave with her
cordially and further, it is the case of the prosecution that,
accused No.2, in criminal conspiracy with the accused
No.1, involved the victim to indulge in a telephonic
conversation with the accused No.1 through her cell phone
in the absence of her family members at her house and on
20.11.2016 at about 12.00 p.m., when the victim was
alone in her house, the appellant/accused No.1 deceitfully
barged into her house with an intention to commit offence.
Further with the knowledge that, the victim was a minor,
accused No.1/appellant committed sexual assault on the
victim. Subsequently, it was also the case of the
prosecution that the appellant used to go to the house of
victim by knowing about the fact that victim's being alone
in the house, from the accused No.2. He was committing
frequent sexual assaults on the victim and thereafter used
to threaten her with dire consequences as to she
informing the same to any person. On the date of last
alleged incident i.e., on 17.03.2017 at about 2.30 p.m.,
when the victim was alone in her house, the accused came
to her house and committed forceful coitus as against the
will of the victim. With the above background, a complaint
at Ex.P.1 came to be lodged by the victim-girl before the
respondent-police on 03.05.2017. Based on the said
complaint, PW.8, the then PSI of the respondent-police,
registered the FIR against the accused for the aforesaid
offences as per Ex.P.19. Subsequently, P.W.9 the CPI who
conducted the investigation by drawing spot mahazar and
also recorded the statement of the victim-girl under
Section 164 of Cr.P.C and thereafter, he arrested the
accused and based on the voluntary statement of the
accused, recovery is said to have been done at the
instance of the accused and after obtaining necessary
documents from the concerned authorities, P.W.10 laid
the charge-sheet against the accused No.1 and 2 for the
aforesaid offences. Pursuantly, the learned Special Judge
framed charges against the accused for the aforesaid
offences and read over the same to the accused and the
accused denied the guilt and claimed to be tried.
3. In order to prove the charges leveled against
the accused, the prosecution in total examined 10
witnesses before the Sessions Court as P.W.1 to P.W.10
and got marked 20 documents as Ex.P.1 to Ex.P.20 and
16 Material Objects as MO1 to MO16. After completion of
the prosecution evidence, the learned Special Judge read
over the incriminating evidence of the material witnesses
to the accused as contemplated under the provisions of
Section 313 of Cr.P.C. However, the accused denied the
charges and did not choose to examine any witness on
their behalf and also has not got marked any documents.
During the course of cross-examination of P.W.1, the
defence got marked 06 documents as per Ex.D1 to D6.
4. After assessment of the oral and documentary
evidence adduced by the prosecution, the learned Special
Judge was pleased to convict the accused No.1/Appellant
for the charges leveled against him except for the offence
punishable under Section 506 of IPC and acquitted the
Accused No.2 for the offence punishable under Sections
109 and 120B of IPC in the impugned Judgment and
sentenced the Accused No.1/Appellant as stated above.
The righteousness of which is challenged under this
appeal.
5. This appeal was heard by the Co-ordinate
Bench of this Court on 07.06.2022 and by invoking the
powers under Section 391 of Cr.P.C., this Court, directed
the prosecution to lead evidence regarding the proof of
age of the victim-girl, with reference to the documents
produced before this Court and accordingly, remanded the
matter back to the Special Court, with a direction to
record evidence adverting to the documents produced
before this Court and also other original records with the
liberty to examine concerned witnesses regarding the said
documents within a time bound period of two months from
the date of receipt of the copy of the said order.
Thereafter, before the learned Sessions Court, the
prosecution led evidence of P.W.11 i.e., Assistant Teacher
of Government Primary School, Devihosur, in order to
prove the age of the victim in respect of Ex.P.15 . Further,
the prosecution also examined the Tahasildar of Haveri
Taluk and he, in his evidence, deposed in respect of non-
availability of the Birth Certificate of the victim-girl as per
Ex.P.21. Though the prosecution examined P.W.11 and
produced SSLC marks card of the victim-girl, the said
document remained unmarked as an Exhibit. Accordingly,
after complying the directions of the Co-ordinate Bench of
this Court, the file was sent back to this Court.
6. We have heard the learned counsel Sri.
A.M.Gundawade, appearing for the appellant/accused
No.1, Sri. Praveena Y. Devareddiyavar, learned HCGP for
the State and Smt. Anuradha Deshpande, learned Amicus
Curiae for victim i.e., P.W.1.
7. Learned counsel for the appellant would
vehemently contend that, the Judgment under appeal
totally suffers from perversity and illegality, the learned
Sessions Judge failed to appreciate the evidences available
on record, more particularly, the cross-examination of the
victim-girl and her father P.W.2, wherein, they
categorically admitted that the accused and the victim
were in love and alleged act was a revel in furtherance of
the same. It is further contended that the prosecution has
also totally failed to prove the age of the victim, that she
was a minor at the time of the alleged incident. In such
circumstance, it is the contention urged that the
prosecution failed to prove the charges leveled against the
accused for the offences punishable under Section 376 of
IPC r/w the provisions of POCSO Act. He would further
contend that, the learned Sessions Judge convicted the
accused only based on the surmises and conjectures and
suppositions and speculations by only relying on the
denuded allegations made by the victim and her father.
Learned counsel for the appellant urge that, except
Ex.P.15 the certificate issued by P.W.11, Assistant Teacher
who was examined after the directions issued by the Co-
ordinate Bench of this Court, however, the said witness
has failed to produce any Birth Certificate of the victim-girl
which is vital to prove the prosecution case. As such, he
would contend that there is absolutely no basis for
issuance of Ex.P.15 by P.W.11, as the said document
cannot be relied to prove the age of the victim, as per the
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settled principles of Hon'ble Apex Court. He would further
contend that, the Tahasildar who examined in this case
has categorically admitted about the non-availability of the
birth certificate in the Revenue Department. To that
effect, he issued Ex.P.21-report. In such circumstances,
there is no authentic document to prove the age of the
victim-girl. Learned counsel also contend that, though the
prosecution has relied on the evidence of the Doctor i.e.
P.W.5 who examined the victim, in her opinion, based on
the dental age, she opined that, the age of the victim-girl
is between 14 to 16 years, wherein, in the evidence of
P.W.1 and P.W.2, they deposed that, the victim was aged
about 15 years at the time of the incident. Hence, there is
a total contradiction in respect of the age of the victim-
girl. Hence, he would contend that the learned Sessions
Judge has completely failed to appreciate the said aspect.
Learned counsel also contends that, during the course of
cross-examination of P.W.1, 06 documents were marked
as per Ex.D1 to Ex.D6. Those documents are the letters
written by the victim-girl to the accused. Those letters
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clearly depicts that the accused No.1 and the victim-girl
were in love with each other. Nevertheless, P.W.1 in her
cross-examination has categorically admitted that, she has
herself scripted those letters addressing it to the accused
No.1/appellant. In such circumstances, the prosecution
has totally failed to prove that the accused has committed
forceful coitus on the victim. He also contends that, since,
the prosecution has failed to prove the age of the victim,
she being the consenting party, the offence under the
provision of 376 of IPC and offences under the provision of
POCSO Act, does not attract against the accused.
Accordingly, he prays to allow the appeal by setting aside
the impugned Judgment.
8. On the other hand, learned HCGP would
vehemently contend that, the Judgment under the appeal
does not suffer from any perversity or illegality. He
submits that, learned Sessions Judge after meticulously
examining the evidence on record, passed the well
reasoned Judgment. As such, absolutely there seems no
reason to interfere with the findings recorded in the
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impugned Judgment. He would further contend that, on
careful perusal of the evidence of P.W.1, the victim-girl
and P.W.2 - father of the victim girl coupled with evidence
of the Doctor i.e. P.W.5, the prosecution categorically
proved that the accused has committed sexual assault on
the victim by knowing-fully well that she was a minor.
Hence, on these grounds he contends that the learned
Sessions Judge has rightly convicted the accused for the
aforesaid offences. He would also further contend that, the
evidence of P.W.4 and P.W.11 further clarifies that, the
victim was aged about 15 years at the time of alleged
incident. Learned HCGP emphasized his arguments by
relying Ex.P.15, the certificate issued by the School
Authority. Hence, according to him, on the conjoint
reading of Ex.P.11 and Ex.P.15, it can be easily concluded
that, the victim was a minor at the time of the alleged
incident. According to the learned HCGP, once the
prosecution is able to prove that the victim was a minor at
the time of the incident, then her consent cannot be
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termed as a legal consent. Hence, he prays to dismiss the
appeal.
9. Having heard the learned counsel for the
appellant/accused No.1, so also learned HCGP and on
careful perusal of the evidence and documents available
on record including the trial Court records, the points that
would arise for our consideration are:
(i) Whether the Judgment under this appeal
suffers from perversity or illegality?
(ii) Whether the learned Sessions Judge is
justified in convicting the appellant/accused No.1 for the
offences punishable under Sections 448, 450, 376
(2)(a)(i) and (n) of IPC and Sections 4, 6, 8 and 12 of the
POCSO Act.?
10. Point Nos.1 and 2 are interlinked with each
other. Hence, they are taken up together for common
discussion in order to avoid repetition of facts.
11. On a cursory glance of the evidence deposed by
the witnesses before the trial Court, P.W.1 the victim who
lodged the complaint as per Ex.P.1, reiterated the version
of Ex.P.1-complaint and deposed that the accused on the
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pretext of marrying her, had committed forceful coitus on
her several times and on several occasions and as such,
she has lodged the complaint against him as per Ex.P.1.
P.W.2 the father of the victim-girl deposed that, his
daughter informed her about the forceful sexual act
committed by the accused on her. Posteriorly, he took her
to the jurisdictional police station and lodged the
complaint.
Further, P.W.3 was a witness for the spot mahazar
drawn on 06.05.2017 as per Ex.P.2 and he has identified
the signature on Ex.P.2.
P.W.4 is the Assistant Teacher of the Government
Primary School, Haveri and has deposed that, P.W.1
informed her that the accused was shadowing her and as
such she informed the said aspect to the Warden of the
Hostel, where the victim-girl was staying.
P.W.5 - Doctor who examined the victim and issued
her preliminary medical report as per Ex.P.9 and also
identified the FSL report as per Ex.P.10 and based on
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Ex.P.10, she has also proffered her final opinion as per
Ex.P.11. Wherein, in the final opinion rendered, she
opined that "evidence of sign of recent sexual intercourse
is absent".
P.W.6 is an independent witness who is residing in
the same village where P.W.2 is residing and deposed
that, P.W.2 informed him about the love affair of accused
and the victim and also requested him to perform the
marriage of the accused with the victim-girl.
P.W.7 the then Woman Police Sub-Inspector at
Haveri Police recorded the statement of victim at the
Government Hospital. P.W.8, is the then Police Sub-
Inspector of Haveri Police Station, who received the
complaint from P.W.1 and registered the FIR in Crime
No.66/2017 against the appellant and another. P.W.9 is
the then Circle Police Inspector of the Haveri Rural Circle
conducted the further investigation and arrested the
appellant and recorded his voluntary statement and also
drawn the spot mahazar and seizure mahazar. P.W.10 is
the then in-charge CPI of Haveri who conducted further
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investigation and after obtaining FSL report, also has laid
the charge-sheet against the accused.
12. On careful perusal of the above evidences
available on record, in order to prove the charges leveled
against the accused, the prosecution mainly relied on the
evidence of P.W.1 - victim girl and P.W.2 her father. It is
the case of the prosecution that, at the time of the alleged
incident, the victim-girl was aged about 15 years. In order
to prove the age of the victim, the prosecution has relied
on Ex.P.15 i.e., School Certificate issued by the Head
Master.
13. The prosecution examined P.W.11 i.e., Author
of Ex.P.15, pursuant to the direction issued by the Co-
ordinate Bench of this Court. However, on perusal of the
evidence of P.W.11, he has stated that, he had issued
Ex.P.15 based on the School Register. Hence, it could be
gathered that, Ex.P.15 was not issued based on the Birth
Certificate of the victim-girl. Even otherwise, the
prosecution has failed to produce the Birth Certificate of
the victim girl, issued by the Competent Authority.
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Further, as per the directions of this Court, the Tahasildar
of the concerned Taluk was examined in order to ascertain
the age of the victim-girl. However, he has categorically
deposed in respect of non-availability of the Birth
Certificate of the victim, he issued report to that effect as
per Ex.P.21. In such situation, the prosecution failed to
produce authenticated document to prove the age of the
victim girl. Hence, we are of the considered opinion that,
Ex.P.15 issued by P.W.11 is only based on the oral say of
the parents of the victim-girl. Further, the prosecution has
relied upon the evidence tendered by P.W.5 - Doctor and
her report at Ex.P.11, wherein, the Doctor has also opined
that, the victim's age is between 14 to 16 years by
examining her dental age. Hence, there is a contradiction
in respect of the age of the victim girl on the Medical
Evidence and the School Certificate. The Hon'ble Apex
Court interpreting the provisions of Section 94 of Juvenile
Justice (Care and Protection of Children) Act, 2015, in
the case of P. Yuvaprakash v. State, reported in 2023
SCC OnLine SC 846 held that,
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"14. Section 94(2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the concerned
examination board has to be firstly preferred in the
absence of which the birth certificate issued by the
Corporation or Municipal Authority or Panchayat and it
is only thereafter in the absence of these such
documents the age is to be determined through "an
ossification test" or "any other latest medical age
determination test" conducted on the orders of the
concerned authority, i.e. Committee or Board or
Court........"
(Emphasis supplied by us)
Admittedly, in the case on hand, the prosecution has
failed to produce the Birth Certificate of the victim-girl and
original Transfer Certificate or the SSLC Marks Card. The
prosecution has also failed to conduct ossification test of
the victim-girl to determine her age.
14. Further, the Hon'ble Apex Court in the case of
Vinod Katara Vs. State of Uttar Pradesh, reported in
2022 SCC Online SC 1204 at paragraph Nos.57 to 60
has held as under:
"57. The bone ossification test (hereinafter
"ossification test") is a test that determines age
based on the "degree of fusion of bone" by taking
the x-ray of a few bones. In simple words, the
ossification test or osteogenesis is the process of the
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bone formation based on the fusion of joints between
the birth and age of twenty-five years in an
individual. Bone age is an indicator of the skeletal
and biological maturity of an Individual which assists
in the determination of age. The most common
method used for the calculation of the bone age is
radiography of the hand and wrist until the age of 18
years beyond which the medial age of clavicle is
used for bone age calculation till the age of 22 years
as the hand and wrist bone radiographs cannot be
computed beyond 18 years of age as the elongation
of the bone is complete after adolescence. However,
it must be noted that the ossification test varies
slightly based on individual characteristics, therefore
the ossification test though is relevant however it
cannot be called solely conclusive.
58. The 2015 Act under Section 94(2)(iii)
read with Rule 12(3) of the 2007 Rules provides the
legislative sanction for the conduct of ossification
test or other medical age determination test
available in the absence of other documentary proof
of age i.e. matriculation certificate or birth
certificate, which has to be given within 15 days
from the date of such order. The test is to be
conducted by the Child Welfare Committee (CWC).
The provision mentioned herein is the basis for
determining the age of a child under the 2000 Act
which even includes a child who is a victim of crime
in addition to a child in conflict with the law.
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59. In Vishnu v. State of Maharashtra,
(2006) 1 SCC 283, this Court clarified that the
ossification test by the medical officer is to assist the
court which falls under the ambit of medical expert
opinion i.e., advisory in nature and not binding.
However, such an opinion cannot override ocular or
documentary evidence, which has been proved to be
true and admissible as they constitute "statement of
facts". This Court in Vishnu (supra) placed reliance
on Madan Gopal Kakkad v. Naval Dubey, (1992) 3
SCC 204, to hold that a medical witness is not a
witness of fact therefore the opinion rendered by
such a medical expert is merely advisory until
accepted by the Court, however, once accepted, they
become the opinion of the Court.
Margin of error principle
60. The bone ossification test is not an exact
science that can provide us with the exact age of the
person. As discussed above, the individual
characteristics such as the growth rate of bones and
skeletal structures can affect the accuracy of this
method. This Court has observed in Ram Suresh
Singh v. Prabhat Singh, (2009) 6 SCC 681: (2010) 2
SCC (Cri) 1194, and Jyoti Prakash Rai v. State of
Bihar, (2008) 15 SCC 223: (2009) 3 SCC (Cri) 796,
that the ossification test is not conclusive for age
determination because it does not reveal the exact
age of the person, but the radiological examination
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leaves a margin of two years on either side of the
age range as prescribed by the test irrespective of
whether the ossification test of multiple joints is
conducted. The courts in India have accepted the
fact that after the age of thirty years the ossification
test cannot be relied upon for age determination. It
is trite that the standard of proof for the
determination of age is the degree of probability and
not proof beyond reasonable doubt."
(Emphasis supplied by us)
The Hon'ble Apex Court in the above said Judgment
has held that, the radiological examination leaves a
margin of two years on either side of the age range as
prescribed by the test, irrespective of whether the
ossification test of multiple joints is conducted or not. In
the case on hand, on perusal of the records made
available, we find that the prosecution has failed to prove
the age of the victim, that she was minor at the time
incident, either by producing the authenticated documents
like Birth Certificate, or Transfer certificate nor by
conducting ossification test. The report issued by the
Doctor i.e., Ex.P.9 depicts that, the age of the victim-girl
was between 14 to 16 years at the time of the alleged
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incident. The same was based on the dental examination
of the Victim-girl. As per the settled principles laid down
by the Hon'ble Supreme Court supra, if the victim-girl was
considered to be of 16 years of age as per Ex.P.9, then
two years margin can be extended on either side.
15. Further, Co-ordinate Bench of this Court in the
case of Haji Kareem Vs. State of Karnataka, through
Chittapur P.S., reported in 2021 SCC Online Kar.
15914 has also opined that in the absence of any
authenticated certificate proving age of the victim-girl,
same can be determined by examining the victim girl
through a radiological or dental examination (i.e., in the
absence of birth certificate or SSLC marks card).
Admittedly, in the case on hand, the prosecution has failed
to produce the Birth Certificate or SSLC Marks Card and
the prosecution has also failed to examine the Radiologist
or Dentist.
16. Further, the Hon'ble Apex Court in the case of
K.P.Thimmappa Gowda Vs. State of Karnataka,
reported in (2011) 14 SCC 475, in paragraph Nos.4 to 6
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of the Order has held that offence under Section 376 of
Indian Penal Code cannot be called for, as the coitus with
the human above the age of 16 years with consent is not
rape. In the case on hand, while considering the evidence
of Doctor i.e. P.W.5 and the certificate at Ex.P.9, the age
of the victim is 16 years. In such circumstances, looking
into the merits of the appeal so also the circumventing
event that has lead to the alleged crime, we are of the
congruent opinion that the prosecution has failed to prove
age of the victim girl that she was minor at the time of
alleged incident.
17. As far as the evidence of the victim-girl i.e.,
P.W.1 and father of the victim-girl i.e., P.W.2 are
concerned, their evidence does not inspire confidence of
this Court, since there are material contradictions in their
evidence and the complaint lodged by P.W.1 as per
Ex.P.1. Nevertheless, on careful perusal of Ex.D.1 to
Ex.D.6 marked during the course of cross-examination of
P.W.1, clearly depicts that, the accused and the victim-girl
were in love, prior to the incident and they both used to
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exchange love letters and also they occasionally meet
each other in the absence of elders. In such
circumstances, it can be easily concluded that, the victim-
girl was acceding party and since the prosecution has
failed to prove that the victim-girl was minor at the time
of incident, the reasoning drawn by the learned Sessions
Judge to prove the charges leveled against the accused
cannot be accepted. The Hon'ble Apex Court in the
Judgment rendered in the case of Rai Sandeep alias
Deepu Vs. State (NCT of Delhi), reported in (2012) 8
SCC 21, referring to the Judgment in Krishan Kumar
Malik Vs. State of Haryana, reported in (2011) 7 SCC
130, has held that in the cases involving forceful sexual
coitus, the Court can rely on the sole witness of the
prosecutrix provided, the same can only be relied upon
when the evidence circumvents the rigors and also
inspires confidence on this Court as to its trustworthiness,
unblemished and also the same shall be of sterling quality.
On careful perusal of the evidence of P.W.1-victim girl and
her father P.W.2, it is difficult to act on their testimonies
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and to cast the vote, since, their testimony does not
inspire any confidence and is hereby for the reasons
aforesaid found to be not reliable. It is on these footings,
we are of the congruence that the evidence of P.W.1 does
not pass the test of sterling quality as propounded by the
Hon'ble Apex Court in the Judgment cited supra.
18. Ex.P.9 i.e., certificate issued by P.W.5 the
Doctor who examined P.W.1, gave a final opinion that, on
local genital examination, "evidence of sign of recent
sexual intercourse is absent". He further opined that, the
"individual is used to an act like of that sexual
intercourse". Even on perusal of the RFSL certificate
marked as per Ex.P.10 in the evidence of P.W.5, the
Doctor has stated that, "seminal stains were not detected
on the item Nos.1 to 5 and 7 to 15, skin tissue was not
detected on item Nos.6 and 16, blood stains were not
detected on item Nos.1, 2, 3 and 4". In such
circumstances, it cannot be concluded that, the contents
of Ex.P.1 i.e., complaint lodged by the P.W.1 is a gospel
truth for the reason that, according to her on 17.03.2017
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at about 2.30 p.m., the accused came to the house of the
victim-girl and committed rape on her. The Doctor
examined the victim-girl on 03.05.2017 at about 7.50
p.m. and opined that, there was no recent sexual act.
Admittedly, there are no other injuries found on the body
of the victim-girl. Even P.W.2, in his evidence has
categorically admitted that, there is a delay in lodging the
complaint and while lodging the complaint, he has invited
the media personnel to the concerned police station.
Further, it is observed in the evidence of P.W.2 also that,
there was a political rivalry between the family of the
accused and the family of the victim girl. In such
circumstances, the evidence of P.W.2 also does not inspire
confidence of this Court. Though P.W.6 is an independent
witness, he partly turned hostile to the prosecution case.
In such circumstances, the learned Sessions Judge
convicted the accused only based on the evidence of
P.W.1 and P.W.2, which does not holds good for the
aforesaid reasons.
- 27 -
19. The learned Sessions Judge also has failed to
appreciate the above material aspects and in such
circumstances, the impugned Judgment is liable to be set
aside. Accordingly, we answer point No.1 in the
affirmative and point No.2 in the negative and proceed
to pass the following:-
ORDER
(i) The appeal filed by the accused is allowed;
(ii) The impugned Judgment and order of
sentence dated 07.05.2020 passed by the
Sessions Court in Special S.C. Case
No.182/2017 for the offences punishable
under Sections 448, 450, 376(2)(i) & (n) of
IPC and Sections 4, 6, 8 and 12 of the
POCSO Act, is set aside;
(iii) The Appellant/accused No.1 is acquitted
from the charges for the offence under
Section 448, 450, 376(2)(i) & (n) of IPC
and Sections 4, 6, 8 and 12 of the POCSO
Act;
(iv) Fine amount is paid, if any, by the accused
shall be refunded to the accused;
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(v) The Jail authorities i.e., Superintendent of
Central Prison, Dharwad is directed to
release the accused forthwith, if he is not
required in any other cases.
(vi) This Court vide order dated 10.01.2023,
appointed learned counsel Smt. Anuradha
R. Deshpande, as Amicus Curia for the
alleged victim-girl/P.W.1. Hence, a sum of
Rs.25,000/- is fixed as fees for the services
rendered by the Amicus Curia. The legal
services authority is directed to pay a sum
of Rs.25,000/- as fees in favour Smt.
Anuradha R. Deshpande, Amicus Curia,
appearing for the alleged victim-girl.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
