Karnataka High Court
State Of Karnataka vs Laxmi @ Anjana W/O. Rajappa on 25 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 100467 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100467 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
VIDYAGIRI POLICE STATION,
DHARWAD, DIST: DHARWAD,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
AND:
Digitally signed
by GIRIJA A 1. LAXMI @ ANJANA
BYAHATTI
Location: HIGH W/O. RAJAPPA LAGAMESHWAR ALIAS RAJAPUT,
COURT OF
KARNATAKA AGE: 35 YEARS, OCC: HOME MAKER,
R/O: HEBBALLI, TQ: DHARWAD,
DIST: DHARWAD, NOW AT GUTAGUDDI,
TQ: HUKKERI, DIST: BELAGAVI-591313.
2. RAJAPPA S/O. RAMAPPA LAGAMESHWAR,
AGE: 30 YEARS, OCC: SECURITY GUARD,
R/O: GUTAGUDDI, TQ: HUKKERI,
DIST: BELAGAVI-591313.
... RESPONDENTS
(SRI. SRINIVAS B. NAIK, ADVOCATE FOR R1 AND R2;
SRI. S.S. DODDALINGANNAVAR, ADVOCATE FOR PW.1)
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CRL.A No. 100467 of 2019
THIS CRIMINAL FIRST APPEAL FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE AND GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 17.06.2019 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE
DHARWAD IN SPL.S.C.19/2018 AND CONVICT THE RESPONDENTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 366A,
341, 376 R/W SECTION 34 OF IPC AND UNDER SECTION 4 AND 6 OF
POCSO ACT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.06.2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, the State has challenged the
judgment dated 17.06.2019 in Special S.C.No.19/2018
passed by the II Additional District and Sessions and
Special Judge, Dharwad ('the Trial Court' in brevity), in
acquitting the accused of the offences punishable under
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Sections 366A, 341, 376 read with Section 34 of IPC and
Sections 4 and 6 of the POCSO Act.
2. Appellant/State was the complainant and
respondents were accused before the Trial Court. For the
sake of convenience, the parties shall be referred as per
their status before the Trial Court.
3. In brief, the case of the prosecution is, the
accused Nos.1 and 2 are husband and wife. The victim is
relative of accused No.1. The victim is a minor and she
was studying in a College at Dharwad. On 02.01.2018 at
10.00 a.m., the victim came down to Dharwad from her
village, alighted near the Head Post Office and while she
was going to the College by walk along with her friends
(CW-19/Suchitra and PW-16/Nethra) accused No.1 met
her and invited her to go to Hotel for tea. When the victim
refused to accompany her, she forcibly took her to a Hotel
located near Tahsildar office and provided her breakfast.
When victim came out of hotel, she felt dizziness, at that
time, accused No.2 came in a motorcycle and both
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accused Nos.1 and 2 forcibly took her in the motorcycle on
the pretext of going to their village.
3(a) On the way, the victim realized that the
accused are not taking her to their village, but they are
taking her somewhere else. She questioned the accused
why they are taking her elsewhere. She was convinced
that they are going to Saundatti Yellamma Temple and
after pooja, they will go to their village. At about 1.00
p.m., both the accused took the victim to Saundatti
Yellamma Temple where she resisted and screamed that
she wants to go back to her village. Accused No.1
promised her to drop in her village. Instead of dropping to
her village, at 3.00 p.m., the accused took her to a house
situated in a field at Paschapur village and reached there
at 6.30 p.m. Accused No.1 offered dinner to the victim;
when she refused, she was induced to take dinner and
thereafter she prepared bed in their kitchen and asked her
to sleep as she will be taken back to their village in the
morning.
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3(b) At about 11.30 p.m., accused No.2 came inside
the house; accused No.1 went out by locking the door
from outside. Thereafter, accused No.2 touched the victim
and forcibly removed her clothes and committed forcible
sexual intercourse about three times. On the next day
morning at 9.00 a.m., accused No.1 came to the house
and told the victim that she should not disclose this to
anybody and offered her gold and money. Thereafter both
the accused took the victim from Paschapur to
Hirebagewadi at about 11.00 a.m., gave money and asked
her to reach home. After reaching home, the victim kept
quiet due to shock. Four days thereafter she informed
the incident to her parents, who after discussion lodged a
complaint to the Police, thereupon the case was registered
setting the law into motion.
4. Accused Nos.1 and 2 were arrested; both
accused and the victim were subjected to medical
examination and on completion of the investigation,
charge sheet came to be filed. Before the Sessions Court,
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accused stood for trial. Accused pleaded not guilty of
charges under Sections 366A, 341, 376 read with Section
34 of IPC and Sections 4 and 6 of the POCSO Act.
5. Prosecution in order to bring home the guilt of
the accused has chosen to examine 27 witnesses as PWs-1
to 27, marked 34 documents as per Exs.P1 to P34 and 6
Material Objects as per M.Os.1 to 6. The accused were
questioned under Section 313 of Cr.P.C. The accused
denied the version of the prosecution. After hearing both
sides, the Trial Court by the impugned judgment acquitted
both accused of the charged offences. Assailing the order
of acquittal, the State has filed this appeal on various
grounds.
6. We have heard the arguments of
Sri.M.B.Gundawade, Additional SPP for the State and
Sri.Srinivas B.Naik, learned counsel for the accused and
Sri.S.S.Doddalingannavar, learned counsel for the victim.
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7. It is contended by the learned Additional SPP
that, PW-1/victim has specifically given evidence narrating
the events that have taken place near Taluka Office,
Dharwad, where accused No.1 took her to the hotel, in the
motorcycle of accused No.2, their visit to the Saundatti
Yallamma Temple, taking her to the farmhouse where the
accused No.1 confined her inside the house, allowed
accused No.2 inside, locked the house from outside
facilitating accused No.2 to commit rape. Sole testimony
of the victim is sufficient to convict the accused persons.
The evidence of the witnesses is reliable but the Trial
Court did not take into consideration the testimony of the
victim. The Trial Court has observed that the delay in
filing the complaint is fatal but when there is valid
explanation for the delay, the Court has to accept the
same. Soon after the incident, the victim was under
shock, she could not be able to inform her parents, only
after self consoling herself, she detailed the alleged
incident to the parents and immediately the complaint was
filed. The Trial Court has not appreciated the medical
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evidence, without any contradiction and omission
extended the benefit of doubt in favour of accused. The
evidence placed before the Trial Court is sufficient to
explain the ingredients of the offence and sought for
reversal of the impugned judgment.
8. Learned counsel appearing for the victim
supported the arguments of the learned Addl. SPP that
sufficient evidence is available on record to explain the
incident and also the ingredients of the offence and
therefore, the impugned judgment is erroneous and it
requires modification.
9. Per contra, learned counsel for the accused has
contended that though the prosecution has examined as
many as 27 witnesses, there are no eyewitnesses to the
incident except the self serving testimony of the victim.
The evidence of the victim is not inspiring the confidence
of the Court, the entire narration of the evidence clearly
shows several lacunas. The medical evidence is not in
support of the prosecution. There is no evidence to show
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that the accused have kidnapped the victim or accused
No.2 committed sexual assault on the victim. The age of
the victim is more than 18 years and her age is not proved
by examining the concerned authorities of the school. PW-
17 is the President of the school who has no authority to
deal with the school records and his evidence cannot be
relied. When the victim was sent for medical examination,
she was subjected dental and radiological examination,
which speak that on the date of alleged incident, the
victim was aged more than 18 years. Even if the
testimony of PW-1 is accepted that she went along with
the accused on her own, there is no evidence in proof of
alleged sexual assault. Hence, the Trial Court has rightly
appreciated the defence holding that the prosecution has
failed to bring home the guilt of the accused, extended the
benefit of doubt and supported the impugned judgment.
10. We gave our anxious consideration to the
arguments addressed on behalf of both the parties and
also perused the material on record.
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11. The accused are charged with the offence
punishable under the provisions of the POCSO Act. Firstly,
the prosecution has failed to prove the age of the victim as
less than 18 years. Apart from the testimony of victim
and her parents who are examined as PW-2 and PW-13,
the prosecution relied upon the evidence of PW-17 the
President of the school where the victim was studying
whose evidence point out that the victim was a student of
her college and in the school records, her date of birth is
mentioned as 13.03.2001 and to this extent, she has
issued admission extract and study certificate as per
Exs.P-21 and P-22. If the evidence of PW-17 is to be
appreciated, then age of the victim on the date of incident
will be less than 18 years.
11(a) The prosecution has also examined PW-26, the
Medical Officer. We have perused his testimony, who has
deposed about the examination of victim on 15.01.2018
and issuing of report under Ex.P-33 that victim has been
examined by the gynecologist, dentist, radiologist and
physiatrist and the opinion of the dental surgeon indicates
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the age of the victim is 16 to 18 years and the radiologist
gave opinion that victim is aged 18 to 20 years.
11(b) According to the prosecution, the age of the
victim on the date of the incident was 17 years. The
medical report at Ex.P-33 indicates the age range of the
victim is between 16 to 20 years. PW-17 the President of
Niduvani PU College issued Exs.P-21 and P-22 at the
request of Vidyanagar Police. Her cross-examination goes
to show that Ex.P-21 is not the document belonging to her
College as it was issued by Kamalabai Narayanarao Kabbur
Girls' High School, Dharwad. Mere production of Ex.P-21
through PW-17 will not suffice to prove the contents of
Ex.P-21. Ex.P-21 was issued after completion of 10th
standard by the victim. Ex.P-22 is based on Ex.P-21. The
concerned Head Master or Teacher who handled Exs.P-21
and P-22 are not examined before the Court. The
President of the College has no knowledge about the
admission of the children to the school. In what way she
is having knowledge about the college records, is not
explained. On the basis of such evidence of PW-17, it is
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very difficult to accept that the prosecution is able to
prove the age of the victim was 17 years as on the date of
incident.
12. The prosecution examined PW-16-classmate of
the victim in order to explain that the victim was
kidnapped by the accused on the alleged date of incident.
13. We have perused the testimony of PW-16, the
friend of the victim. Her evidence shows that on
02.01.2018 at 10.00 a.m., when she and the victim were
going near Head Post Office, accused No.1 met the victim
and took her to have breakfast along with her. Though he
was told that the victim will come to college after the
breakfast but she did not come to the College. PW-16
went home under the impression that the victim might
have accompanied accused No.1. Two days after the
incident, she was informed about these aspects to the
police. Her cross-examination points out that the accused
No.1 has not taken the victim forcibly but victim herself
had gone with the accused. The victim introduced accused
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No.1 as her aunt. This explains that victim had voluntarily
accompanied accused No.1 to the hotel and after breakfast
she went on her own.
14. PW-1 is the star witness to the case and author
of Ex.P-1, complaint. We have perused the averments
made in the complaint. It narrates that on 02.01.2018 the
victim left the house and went to the college, alighted near
the Head Post Office along with PW-16. On that day,
accused No.1 being a distant relative was present near the
Head Post Office. She approached the victim to join her for
breakfast and tea. Though the victim refused, accused
No.1 forced her holding her hands. Hence, she
accompanied her to the hotel near Tahasildar Office and
had breakfast along with accused No.1. When they came
out of the hotel, accused No.2 came in his splendor
motorcycle and though she was not interested, she was
forced to accompany them in the motorcycle. At about
1.00 p.m., she was taken to Saundatti Yallamma Temple,
where she resisted but she was forced to take the Darshan
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in the temple and thereafter, she was taken in the
motorcycle to the house of accused. They reached his
house in the evening and she was forced to stay in the
house. At 9 O' clock, accused No.1 arranged a bed for her
in the kitchen, asked her to sleep telling that she will be
sent home in the morning. At 11.30 p.m., accused No.2
came inside the kitchen, accused No.1 went out by locking
the door from outside. Accused No.2 misbehaved with
her, disrobed her and committed sexual assault 3 times.
On 03.01.2018 at 9.00 a.m. the victim was offered with
gold and money and informed that she should not inform
the incident to anybody. At about 11.00 a.m., she was
dropped at Hirebagewadi asking her to go home. She
returned home with shock, was silent for about 4 days.
Thereafter, she revealed the incident to her parents, she
was taken to the police station to file complaint and
thereafter she was taken to hospital for medical
examination.
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15. We have also perused the evidence of PW-1.
Her testimony shows that she was born on 13.03.2001
and in the year 2018 she was 17 years old. Accused No.1
is her distant relative and on 02.01.2018 when she went
near the college along with PW-16, accused No.1
approached her, took her to the hotel and after breakfast,
took her in the motorcycle of accused No.2 to Saundatti
Yallamma Temple. From there, she was taken to the
farmhouse of the accused and forced to stay in the kitchen
of said house. In the night at 11.30 p.m., accused No.2
ventured into kitchen, he forcibly touched her body,
removed her clothes and committed sexual assault 3
times. In the morning she was dropped at Hirebagewadi
by paying Rs.200/- asking her to go home. She was
warned not to disclose the incident to anybody. Hence,
she kept quiet for four days and thereafter she informed
the incident to her parents.
15(a) The cross-examination of PW1 has
demonstrated that accused No.1 was not very familiar and
she was not visiting the house of the victim. PW-1 did not
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tell why she accompanied accused No.1 to the hotel then
to Saundatti Yallamma Temple and then to the farm
house. During transit, she neither objected for being
carried by the accused forcefully nor she asked anybody to
help her from the clutches of the accused.
15(b) As we discussed above, the age of the victim is
under cloud. The evidence of PW-16 indicates that PW-1
went along with accused No.1 on her own.
16. Now the points that arise for our consideration
is whether the testimony of PW-1 can be the sole basis for
conviction? And Whether her testimony is reliable?
16(a) In this regard the evidence of Medical Officer is
very relevant as referred above. We have perused the
testimony of PW-26-Medical Officer. He has only
consolidated the reports of the gynecologist, dentist,
radiologist and physiatrist in issuing Ex.P-33-report.
According to him, his report is based on the opinion of
other doctors who have examined the victim. He is clear
and definite that at the time of examination there were no
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evidence indicating sexual assault on the victim. He has
not found any injuries on the person of the victim. His
opinion as per Ex.P-29 makes it clear that "there is no
evidence to suggest that there is recent sexual activity".
It is thus clear that there was no sexual assault on the
victim.
16(b) Ex.P-28 is the FSL report of the samples taken
at the time of medical examination of the victim. There
are no seminal stains and spermatozoa detected in the
said articles of the victim. In Ex.P-33, the history of the
alleged incident is that one of the relatives of the victim
called her to her house and took her to Saundatti
Yallamma Temple. On the next day, she took her to
Pashchapur and there accused No.1 forcefully locked her
in a room with a boy named Rajappa and said Rajappay
sexually assaulted her on the night of 02.01.2018.
16(c) This sole testimony of PW-1 is not sufficient to
base conviction without corroboration as her testimony
does not inspire the confidence of the Court. The evidence
of PW-26 coupled with the report in Ex.P-33 indicates that
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the hymen of the victim was normal. In the cross-
examination, PW-26 admits that if there is any sexual
assault, the hymen will tear. But according to PW-26,
when the victim was examined he found no evidence of
sexual assault on her.
17. PW-2 is the father and PW-13 is the mother.
We have also perused their evidence. The testimony of
the mother shows that on 02.01.2018 at 9.30 a.m., the
victim left home and she did not return from the college.
On the next day, she returned home at 1.00 p.m. and she
was looking tired. She enquired why she did not return
home yesterday and why she is looking tired. Victim told
her that she is not feeling well and she should not be
disturbed. Two days later, when she enquired the victim,
it was revealed that the accused took her to Saundatti
Yallamana Gudda from there to Pashchapur and made her
to stay in the home with a promise to send her next day.
On that night, accused No.2 committed sexual assault on
her and they dropped her in the morning at Hirebagewadi
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by paying Rs.200/-. PW-13 tried to take the victim to the
hospital but she did not oblige. Thereafter, they went to
Garag Police Station, but they sent them to Vidyagiri Police
Station. Vidyagiri Police sent them to Yamakanamaradi
Police Station where the victim gave the complaint
narrating the alleged incident.
17(a) The cross-examination of PW-13 points out
that they did not file any police complaint reporting that
their daughter was missing on 02.01.2018. The victim
was not taken to hospital. Only on filing of complaint on
15.01.218, she was taken to the hospital. The alleged
incident has taken place on 02.01.2018. Victim was
subjected to medical examination on 15.01.2018. In a
case of this nature, it is very difficult to collect the
evidence of sexual assault after 13 days. It is attributed
that since accused No.1 being a relative of victim, she fell
in love with accused No.2 and married him and the
parents of the victim were nursing ill-will against accused
No.1, they used the victim to take revenge.
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18. According to PW-2-father of the victim on
02.01.2018, he left home for his job at 8.30 a.m. and
returned home at 5.00 p.m. He was informed that the
victim has not returned from college. He searched for her,
on the next day morning, he went to the college and met
PW-16. She informed that the victim accompanied
accused No.1. By the time he was about to report to
police, victim returned to the house. On enquiry, she did
not tell anything as she was under depression for 4 to 5
days. Later, victim informed his wife the alleged incident.
She was taken to police station for filing complaint. In the
cross-examination he has stated that the complaint was
filed after 15 days of the incident. As deposed by PW-2,
from Dharwad to Saundatti Yallamman Temple and to
Pashchapur, several people were present and the victim
has facility of phone booth in Yallammana Gudda. From
the conduct of victim, cloud of doubt arises whether the
victim was kidnapped by accused or she voluntarily
accompanied the accused persons.
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19. The prosecution has relied on the evidence of
other witnesses such as PW-6 and PW-7 as the panch
witnesses to Exs.P-15 to P-17. PW-5 and PW-8 are panch
witnesses to seizure of M.Os.1 and 2 under Ex.P-14. PW-9
and PW-10 are the witnesses to the mahazar drawn near
Hagidal village where the alleged incident took place.
PW-11 and PW-12 are panch witnesses to Ex.P-6 where
the alleged incident took place in the kitchen and this was
shown to the police by the victim herself. PW-3 and PW-4
are panch witnesses to Ex.P-11 mahazar regarding seizure
of motorcycle in which the victim was carried away by the
accused. PW-3 and PW-4 though attested the mahazar,
they were not aware about the reasons for seizure of the
motorcycle. PW-5 and PW-11 supports the prosecution
version, however, there is no substantive evidence we
could accept from these witnesses.
20. PW-14 is the sister of accused No.2 and PW-15
is the husband of PW-14. They have been cited as panch
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witnesses, but did not support the prosecution and turned
hostile about the alleged incident.
21. We have perused the evidence of PW-21-PSI
who registered FIR on the basis of Ex.P-1 complaint
submitted by PW-1 on 15.01.2018. PW-24 is the then
Circle Inspector of Police who sent the victim to the
medical examination, visited the spot and drawn Ex.P-2
mahazar and arrested accused No.1. PW-25 is the
Investigation Officer who completed formalities of
investigation and filed charge sheet.
22. We have perused the entire prosecution
evidence. The learned Addl. SPP contended that the self
serving testimony of PW-1 is sufficient to hold the accused
guilty as the victim is a minor. At the same time, the
defence relied on medical examination report and evidence
of PW-2. We have noticed that the RFSL report Ex.P-28
did not suggest the sexual assault due to absence of
seminal stains and spermatozoa. There are no physical
injuries on the person of victim. The victim did not resist
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while she was taken by the accused, contra as deposed by
PW-16, victim herself went voluntarily with the accused.
There is no medical evidence to show that the victim was
subjected to sexual assault, hence, the self serving
testimony of the victim cannot be believed without any
corroboration to base conviction.
23. As we discussed above, age of the victim was
not proved by the prosecution on the contrary, the medical
report speaks and suggests that the victim was more than
18 years on the date of incident. The evidence of PW-16
coupled with the victim suggests that the victim
accompanied the accused on her own. Though she stayed
in the house of the accused at Hagidal and though there is
allegation of sexual assault, same is not supported by
medical evidence. When the victim herself accompanied
the accused and herself came back to the home in the
morning, she did not disclose anything to the parents and
after 14 days i.e., on 15.01.2018 complaint was lodged,
without explaining the delay. The self serving testimony
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of the victim is therefore difficult to rely upon to accept the
version of the prosecution.
24. We have carefully perused the impugned
judgment. The Trial Court has appreciated the entire
material evidence on record and observed that the victim
has voluntarily gone along with the accused. Victim was
aged more than 18 years at the time of alleged incident.
The testimony of victim is not reliable as there is no
evidence of sexual assault. Medical evidence did not stand
in support of the prosecution and thereby Trial Court
extended the benefit of doubt in favour of the accused and
recorded the acquittal. The Trial Court has exercised its
discretion based on the material evidence. In an appeal of
this nature, in order to interfere with the order of
acquittal, the prosecution is required to establish quality
evidence and show that the Trial Court has committed an
error in appreciation of evidence and there is an illegality
in the impugned judgment. As we have re-appreciated the
evidence, we find that the prosecution evidence is not
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inspiring the confidence of the Court. We do not find any
error or illegality in the impugned judgment. Hence, the
appeal is devoid of merits. In the result, the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KNM-upto para 5
Naa-para 6 to end
