Karnataka High Court
The State Of Karnataka vs Kempanna on 4 July, 2024
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CRL.A No.1825/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO. 1825/2018 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE INSPECTOR
KUNIGAL POLICE STATION
TUMAKURU DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU ...APPELLANT
(BY SMT.SOWMYA R, HCGP)
AND:
1. KEMPANNA
S/O NANJUNDAIAH
AGED ABOUT 38 YEARS
Digitally
signed by K S R/O SOBAGANAHALLI
RENUKAMBA KOTTAGERE HOBLI
Location: KUNIGAL TALUK
High Court of
Karnataka TUMAKURU DISTRICT
2 NAGARAJU
S/O NANJAIAH
AGED ABOUT 54 YEARS
R/O SHETTIGERI VILLAGE
KOTTAGERE HOBLI
KUNIGAL TALUK
TUMKURU DISTRICT - 572 101 ... RESPONDENTS
(BY SRI.GNANESH H KEMPANNA, ADVOCATE FOR R1;
SRI.NAGENDRA A, ADVOCATE FOR R2 (AUTHORISED BY HCLSC))
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CRL.A No.1825/2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)&(3)
CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 10.04.2018, PASSED
BY THE LEARNED III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
TUMAKURU IN SPL.C.NO.508/2016, ACQUITTING THE RESPONDENT-
ACCUSED OF THE OFFENCES PUNISHABLE UNDER SECTIONS 376,
506 OF IPC AND SECTION 6 OF POCSO ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
"Whether the impugned judgment and order of acquittal
passed by the Trial Court for the offences punishable under
Sections 376, 506 IPC and Section 6 of the Protection of
Children from Sexual Offences Act, 2012 ('the POCSO Act' for
short) suffers patent illegality or perversity?" is the question
involved in this case.
2. The respondent was tried in Spl.Case.No.508/2016
on the file of III-Additional District and Sessions Judge,
Tumakuru for the aforesaid offences on the basis of the charge
sheet filed by Kunigal Police in Crime No.341/2016 of their
police station. Crime No.341/2016 was registered against the
respondent on the basis of the complaint Ex.P1 filed by PW.1.
3. PWs.1 and 4 are the father and mother, PW.3 is the
paternal grandmother of PW.2, PW.5 is her uncle, PWs.6 to 8
are neighbours of PW.2. For the purpose of convenience, the
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parties are referred to henceforth according to their ranks
before the Trial Court.
4. The case of the prosecution in brief is as follows:
Accused owned two tractors and one Santro Car.
Accused developed friendship with PW.1 as he was ploughing
the land of PW.1 with his tractor bearing registration No.K.A-
06-T.B-3446. The accused was parking his car and tractor near
the house of PW.1. As on 12.07.2016, victim/PW.2 was aged
16 years. Accused in the guise of dropping her to the college,
between 12.07.2016 and 20.08.2016 took her in his Santro Car
bearing registration No.K.A-03-M.A-5044 six times to the
eucalyptus grove on the way and committed aggravated sexual
assault on her. When she raised resistance, the accused
intimidated her at the point of knife and threatened her not to
reveal the incident to others.
5. The Trial Court on hearing the parties framed the
charges against the accused for the offences punishable under
Sections 376, 506 IPC and Section 6 of the POCSO Act. Since
the accused denied the charges and claimed trial, trial was
conducted. In support of the case of the prosecution, PWs.1 to
19 were examined, Exs.P1 to P21 and MOs.1 to 8 were marked.
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After his examination under Section 313 Cr.P.C the accused did
not lead any defence evidence. But on his behalf by way of
confrontation, Ex.D1 was marked.
6. The Trial Court on hearing the parties by the
impugned judgment and order acquitted the accused holding
that the victim being child within the meaning of Section
2(1)(d) of the POCSO Act and the charges of sexual assault
were not proved beyond reasonable doubt. Challenging the said
findings, the State has preferred the above appeal.
7. Smt. Sowmya R, learned HCGP for the State and
Sri. Nagendra A, learned Counsel for respondent No.2
reiterating the grounds of the appeal submit that victim-PW.2,
her parents, grandmother supported the prosecution case,
circumstantial witnesses PWs.6 to 8 corroborated the evidence
of PW.2 and medical evidence was also corroborative. Age of
the victim was proved by the evidence of PW.17 and school
certificate Ex.P10. The Trial Court fell in error in disbelieving
the evidence of prosecution witnesses, blowing the minor
inconsistencies and contradictions out of proportion. Finding of
Trial Court with regard to the age of the victim is incorrect.
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Therefore, they submit that the impugned judgment and order
is illegal and liable to be set aside.
8. Per contra, Sri Gnanesh H. Kempanna, learned
Counsel for respondent No.1/accused submits that there was
inordinate delay in filing complaint, the age of the victim was
not proved by legally acceptable evidence and there are major
contradictions in the evidence of prosecutrix herself, therefore,
she cannot be called as witness of sterling quality. Hence, her
evidence needed corroboration. The Trial Court on judicious
appreciation of the evidence has acquitted the accused. The
said judgment does not suffer any legal infirmity warranting the
interference of this Court. In support of his submission, he
relied on the judgment of the Hon'ble Supreme Court in
Santosh Prasad alias Santosh Kumar Vs. State of Bihar1
Analysis:
9. The case of the prosecution is that the accused in
the guise of dropping the victim to her college in his Santro Car
bearing registration No.K.A-03-M.A-5044 took her from her
house in Shettigere village, on the way to the college near
Ranganatha Swamy Temple, he took her to eucalyptus grove
AIR 2020 SC 985
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and under the criminal intimidation committed penetrative
sexual assault on her six times. It is further the case of the
prosecution that accused had threatened the victim not to
reveal the incident to others. On 23.08.2016 when he was
harassing the victim demanding to accompany him, PW.3 the
grandmother enquired the victim and the accused went away.
Thereafter, the victim revealed the incident to her. Then PW.1
filed complaint/Ex.P1 on 05.09.2016. Based on which, FIR
Ex.P11 was registered and investigation was conducted. During
the course of investigation, victim said to have given statement
as per Ex.P5 before the Magistrate under Section 164 Cr.P.C
and was also subjected to medical examination. In proof of
victim's age, Ex.P10 school certificate was collected. The Trial
Court holding that, the victim being child was not proved and
the allegations of sexual assault were not proved beyond
reasonable doubt, has acquitted the accused.
10. The Hon'ble Supreme Court in Prem Singh v. State
of Haryana2 held that the scope of interference of the appellate
Court in an appeal against acquittal is limited and the appellate
Court cannot interfere with the judgment of acquittal, unless
(2013) 14 SCC 88
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the judgment suffers patent illegality or perversity and merely
on the ground that on assessment of the evidence two views
are possible. In such case the view which is favourable to the
accused has to be considered and shall be given benefit of
doubt.
11. This Court has to examine this matter in the light of
the aforesaid principles. To prove the charges, the prosecution
was required to prove the following facts:
(i) PW.2 was a child aged below 18 years;
(ii) That the accused committed aggravated sexual
assault on her.
12. To prove the age of the victim, prosecution relied
on the evidence of PW.17, Teacher of Government High School,
Shettigere village and Ex.P10 Study Certificate issued by the
said school. PW.17 deposed that on the requisition of
Investigating Officer, Ex.P10 Study Certificate was issued and
as per the said record, PW.2 is born on 26.06.2000. Therefore,
prosecution claims that as on the date of incident, she was
aged 16 years. Ex.P10 is purportedly issued by the Head
Master of the Shettigere High School. As per the said record,
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PW.2 was admitted into their school for 8th Standard. PW.17
says that the said date of birth was entered in their school
record based on Transfer Certificate issued by her Primary
School which was her first studied school. He says that, he
does not know on what basis in the said transfer certificate, the
date of birth was mentioned as 26.06.2000. He admits that
when the victim was being admitted into school, he was not the
Headmaster of the school and he does not know what records
were furnished at the time of admission into the High School
about her date of birth. Therefore, to substantiate Ex.P10, the
evidence of PW.17 was of no use.
13. The Hon'ble Supreme Court in Mahadeo v. State of
Maharashtra and Another3 has held that the yardstick
applicable for the assessment of the age of juvenile in conflict
with law under Rule 12(3) of Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter referred to as
JJ Rules) is applicable to the juvenile victim also. In this case
the incident took place in July-August of 2016. Therefore, the
parties were governed by the JJ Rules, 2007. The Hon'ble
(2013) 14 SCC 637
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Supreme Court in Para 12 of the above said judgment referring
to Rule 12(3) held as follows:
"12. We can also in this connection make reference to a
statutory provision contained in the Juvenile Justice
(Care and Protection of Children) Rules, 2007, where
under Rule 12, the procedure to be followed in
determining the age of a juvenile has been set out. We
can usefully refer to the said provision in this context,
inasmuch as under Rule 12(3) of the said Rules, it is
stated that:
"12. (3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by
the court or the Board or, as the case may be,
by the Committee by seeking evidence by
obtaining--
(a)(i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and
in the absence whereof;
(iii) the birth certificate given by a corporation
or a municipal authority or a Panchayat;"
Under Rule 12(3)(b), it is specifically provided that only
in the absence of alternative methods described under
Rules 12(3)(a)(i) to (iii), the medical opinion can be
sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile, in
our considered opinion, the same yardstick can be
rightly followed by the courts for the purpose of
ascertaining the age of a victim as well."
(Emphasis supplied)
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The reading of the above judgment goes to show that, to prove
the age of the juvenile victim, the prosecution has to first
produce matriculation or equivalent Certificate, if available.
Only in the absence of that, date of birth certificate from the
school first attended has to be produced. In the absence of the
above two, the birth certificate given by the Corporation or
Municipal authority or Panchayath has to be produced. Only in
the absence of the first three documents, ossification test has
to be resorted.
14. In the present case, the victim and her family
members stated that, at the time of incident, the victim was
studying in Jnana Sampada Pre-University College in Kunigal.
That makes it clear that she had passed matriculation and her
matriculation certificate was available. But Investigating Officer
did not secure the same or produce it and there was no
explanation for that. Ex.P10 was not the certificate issued by
the first attended school of the victim. The victim was not
subjected to ossification test. Therefore, to prove the age, none
of the criteria laid down in the judgment of Mahadeo's case
referred to supra were followed. Suppression of best available
evidence i.e., matriculation certificate leads to the inference
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that, if produced that would have gone against prosecution.
Therefore, the Trial Court was justified in holding that the
victim being child, was not proved.
15. Once the victim being child is not proved, provisions
of POCSO Act are not attracted and charge under Section 6 of
the POCSO Act does not sustain. Therefore, the prosecution
loses the benefit of presumption prescribed under Sections 29
and 30 of the POCSO Act. Then what has to be seen is, whether
the charges under Section 376 IPC and 506 IPC were proved
beyond reasonable doubt.
16. It is no doubt true that, PW.2 the victim supported
the prosecution version. It is also true that the victim of rape,
stands on par with an injured witness and her evidence has to
be valued. But that comes with a caveat that her evidence
should be of a sterling quality and inspire the confidence of the
Court.
17. In this regard, the Hon'ble Supreme Court in
Santosh Prasad alias Santosh Kumar's case referred to supra
referring to its earlier judgment in Raju and others Vs. State of
Madhya Pradesh (2008) 15 SCC 133 and Rai Sandeep alias
Deepu Vs State (NCT of Delhi) (2012) 8 SCC 21 held that to
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rely on sole testimony of prosecutrix, she should be of a
witness of sterling quality and her evidence should inspire
confidence of the Court. If her evidence creates doubt, then
such evidence needs corroboration and charge has to be proved
beyond reasonable doubt.
18. In the present case, the incident said to have taken
place between 12.07.2016 and 20.08.2016. But for all those
days, the victim had not whispered anything to anybody about
the incident, though she was the student of PUC and had the
worldly knowledge. Further as per Ex.P1 she allegedly revealed
the incident to her grandmother on 23.08.2016 at 5.30 p.m.
But complaint Ex.P1 was filed on 05.09.2016 at 12 noon.
Except bald statement that complaint was filed after enquiring
in the house, no acceptable reasons were assigned to explain
the delay in filing the complaint. The details with whom they
enquired, what was that enquiry etc., were also not stated.
Though FIR was said to be registered on 05.09.2016 at 12
noon, the same was delivered to the Magistrate on 05.09.2016
at 8.30 p.m., even that delay was not explained. The victim
was subjected to examination under Section 164 Cr.P.C on
09.09.2016, though the complaint was registered on
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05.09.2016. This four days delay in subjecting the victim for
examination through the Magistrate was not explained.
19. Though the complaint Ex.P1 says that the victim
was subjected to sexual abuse six times, in her statement
Ex.P5 under Section 164 Cr.P.C, the victim says that the
accused subjected her to sexual abuse only once. In her chief
examination, she did not whisper anything as to how many
times she was subjected to sexual abuse by the accused.
Whereas during her medical examination, she said to have
revealed that she was subjected to sexual assault 5-6 times
within a period of one and half months. There were lot of
inconsistencies and improvements in the evidence of
prosecutrix herself about the number of times of commission of
offence and manner of the same.
20. Further medical evidence indicates that there was
no evidence of recent sexual intercourse. The contention of the
accused was that PW.1 had borrowed money from him and
when repayment was demanded, he was falsely implicated in
the case. PWs.1 and 3 to 5 were all close relatives of PW.2 and
PWs.6 to 8 are the neighbours. There is inordinate delay in
victim revealing the incident to her parents and even after she
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revealing the incident there is delay in filing complaint, delay in
subjecting her to medical examination, as well as examination
under Section 164 Cr.P.C. That probabilises the defence of the
accused that the witnesses systematically deliberated and
implicated him in the case.
21. Under the circumstances, the Trial Court was
justified in holding that PW.2 is not the witness of sterling
quality and other evidence was insufficient to hold that charges
are proved. No patent illegality or perversity is found in the
impugned judgment of the Trial Court, warranting interference
of this Court. Hence the following:
ORDER
The appeal is dismissed.
Court places on record its appreciation for the able
assistance rendered by Sri. Nagendra.A, learned Standing
Counsel for the High Court Legal Services Committee.
Sd/-
JUDGE
Sd/-
JUDGE
