Karnataka High Court
State Of Karnataka vs Sri. B.K. Devaraj @ Chikkanni on 6 June, 2024
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CRL.A No.353/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.353/2017 (A)
BETWEEN:
STATE OF KARNATAKA
BY K.B.CROSS POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ...APPELLANT
(BY SRI RAJATH SUBRAMANYA, HCGP)
AND:
1. SRI B.K. DEVARAJ @ CHIKKANNI
S/O KRISHNAPPA
AGED ABOUT 30 YEARS
Digitally
signed by K S R/AT N.RAMPURA GATE
RENUKAMBA NITTUR HOBLI, GUBBI TALUK
Location: NOW C/O MADHUKUMAR
High Court of
Karnataka KIBBANHALLI HOBLI
TIPTUR TALUK - 572 201
2. NARASIMHAIAH
S/O LATE SANNA UGRAIAH
AGED ABOUT 70 YEARS
RAJATHADRIPURA
TIPTUR TALUK, TUMKUR DISTRICT ...RESPONDENTS
(BY SMT.K.M.ARCHANA, AMICUS CURIAE FOR R1;
SRI JAVEED S, ADVOCATE - HCLSC FOR R2)
THIS CRIMINAL APPEAL IS FLIED UNDER SECTION 378(1) &
(3) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
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CRL.A No.353/2017
OF ACQUITTAL DATED 22.07.2016 PASSED BY III ADDITIONAL
SESSIONS JUDGE, TUMAKURU AND SPECIAL COURT FOR TRIAL OF
CASES UNDER SCHEDULED CASTES/SCHEDULED TRIBES
(PREVENTION OF ATROCITIES) ACT AND SPL. COURT FOR TRIAL
OF CASES UNDER PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT IN SPL.C.NO.151/2013 ACQUITTING THE ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 344, 366A AND
376 OF IPC AND SECTION 6 OF PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT, 2012 ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the judgment and order of acquittal passed
by III Additional Sessions Judge and Special Court for trial of
cases under the Protection of Children from Sexual Offences
Act, 2012 ('the Act' for short) in Special Case No.151/2013,
the State has preferred this appeal.
2. Respondent No.1 was the accused and
respondent No.2 was PW.3 in Spl.C.No.151/2013 before the
trial Court. For the purpose of convenience the parties are
referred to henceforth according to their ranks before the trial
Court.
3. The accused was tried in Spl.C.No.151/2013 for
the charges for the offences punishable under Sections 366A,
344 of IPC and Section 6 of the POCSO Act and in the
alternative for the offence under Section 376 of IPC on the
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basis of the charge sheet filed by Kibbanahalli Cross Police in
Crime No.17/2013 of their police station.
4. The case of the prosecution in brief is as follows:
That on 08.02.2013 the victim PW.1 was aged 15 years
5 months 20 days. Her date of birth is 19.09.1997. PWs.3
and 4 are the mother and father of PW.1. PW.1 was married
to PW.6 subsequent to the incident. On 08.02.2013 at 5.00
p.m. the accused luring PW.1 of marriage kidnapped her from
Kibbanahalli cross circle, took her to Bangalore. He confined
her in the house of PW.5 where she was living as tenant
under PW.14. On 09.02.2013 the accused took PW.1 to
temple, tied mangalya to her neck and on the same night, he
committed penetrative sexual assault on her. Thereafter he
committed penetrative sexual assault on her several times.
5. PW.3 filed missing complaint as per Ex.P4 before
PW.15 based on which he registered first information report
as per Ex.P11 and took up investigation. He deputed staff to
trace the victim and they traced and produced the victim
before him. He got subjected PW.1 to medical examination.
Based on her statement he included Section 376 of IPC in the
case against the accused. After partly investigating the case,
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he handed over further investigation to PW.13. After
completing the investigation, the accused was charge sheeted
for the offences punishable under Sections 342, 366A, 376 of
IPC and Section 6 of the POCSO Act.
6. The trial Court on hearing the parties, framed the
charges against the accused for the offences punishable
under Sections 344, 366A, 376 of IPC and Section 6 of the
POCSO Act as aforesaid. The accused denied the charges and
claimed trial. Therefore the trial was conducted. In support of
the case of the prosecution, PWs.1 to 16 were examined and
Exs.P1 to 11 were marked. After examination of the accused
under Section 313 of Cr.P.C. he did not adduce any defence
evidence.
7. The trial Court on hearing the parties by the
impugned judgment and order held that the facts of the
victim being minor, the accused kidnapping her and
committing aggravated sexual assault on her were not proved
beyond reasonable doubt. Hence, acquitted him.
8. Sri Rajath Subramanya, learned HCGP and
Sri S.Javeed, learned Standing Counsel for High Court Legal
Services Committee reiterating the grounds of appeal submit
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that the evidence of PW.8 the teacher and Ex.P8 clearly show
that the victim was aged 15 plus years. The evidence of PW.1
victim coupled with the medical evidence of PW.2 shows that
the victim was subjected to penetrative sexual assault. Their
evidence was further corroborated by the evidence of PW.14.
The trial Court had no reason to disbelieve the evidence of
the aforesaid witnesses. They further submit that the trial
Court has committed grave error in appreciating the evidence
and passing acquittal order. Therefore they seek reversal of
the judgment of the trial Court.
9. Smt.Archana K.M., learned Amicus Curiae
representing the accused submits that this being an appeal
against the order of acquittal, unless there is patent illegality
or perversity in the judgment of the trial Court, the judgment
cannot be reversed. She further submits that basically the
victim being minor itself was not proved. She further submits
that there was inordinate delay in filing the complaint, only
the interested witnesses supported the prosecution version.
PW.5 in whose house the victim was allegedly lodged did not
support the prosecution version. PW.14 was examined as
landlady. The name of PW.14 as landlady did not appear in
Ex.P10. Ex.P8 the record of date of birth of the victim was not
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proved in accordance with law. Except the interested
witnesses and the official witnesses, the other witnesses have
not supported the prosecution version. The trial Court on
judicious appreciation of the evidence has acquitted the
accused. The same does not warrant interference of this
Court. In support of her submissions, she relies on the
judgment of the Hon'ble Supreme Court in Alamelu v. State1.
10. On considering the submissions of both sides and
on examining the materials on record, the question that
arises for determination of this Court is "Whether the
impugned judgment and order of acquittal suffers patent
illegality or perversity"?
Analysis
11. According to the prosecution, the victim PW.1 at
the time of the incident i.e. on 08.02.2013 was aged 15 years
5 months 20 days. On that day, the accused kidnapped her
luring her of marriage from Kibbanahalli cross and lodged her
in the house of PW.5. It is further alleged that on 09.02.2013
he tied mangalya in her neck in temple and committed
(2011) 2 SCC 385
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aggravated penetrative sexual assault on her in the house of
PW.5 from 09.02.2013 till she was rescued on 17.02.2013.
12. The trial Court on conducting the trial and
appreciating the evidence on record has acquitted the
accused holding that the charges were not proved beyond
reasonable doubt. The trial Court further held that the
prosecution failed to discharge its initial burden of proof.
13. The Hon'ble Supreme Court in the judgment in
Prem Singh v. State of Haryana 2 has held that in an appeal
against the order of acquittal, the scope of interference is
limited. Unless it is shown that the impugned judgment and
order of acquittal suffers patent illegality or perversity, the
Appellate Court cannot interfere with such judgment. It is
further held that merely because two views are possible the
acquittal judgment cannot be reversed, in such case the
view favorable to the accused has to be considered. By the
order of acquittal, the accused has double benefit namely the
initial presumption of innocence which is available to the
accused in the trial, secondly which is reinforced by the order
of acquittal. Therefore this Court has to examine this matter
(2013) 14 SCC 88
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in the light of the aforesaid judgment of the Hon'ble Supreme
Court.
14. Since the prosecution invoked the provision of
Section 6 of the POCSO Act, the prosecution had the burden
of establishing the following factors:
(i) PW.1 victim was aged below 18 years;
(ii) PW.1 was kidnapped and confined in the house of
PW.5 ; and
(iii) PW.1 was subjected to aggravated sexual assault.
Reg. Age of the victim:
15. According to the prosecution, the victim was born
on 19.09.1997. As on the date of kidnap i.e. on 08.02.2013,
she was aged 15 years 5months 20 days. To prove the said
fact, the prosecution relied on the evidence of PW.8 the Head
Mistress of Government Higher Primary Model School of
Rajathadripura, Tiptur and Ex.P8 the Admission Certificate of
the victim. She states that on the requisition of the police,
she issued School Admission Certificates to the Investigating
Officer on 25.02.2013 and 02.04.2013 and Ex.P8 is the
certificate issued by her. But in the cross-examination, she
admits that at the time of admission of PW.1 she was not the
Headmistress of the school and the entries in the Admission
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Register were made by Gurulingappa the then Headmaster of
the School. She also admits that in Ex.P8 there was no
mention that at the time of admission of PW.1 her birth
certificate was produced. The Investigating Officer neither
collected the Admission Register Extract nor cited him as
charge sheet witness. No reason was forthcoming for the
same.
16. Two school certificates are marked as Exs.P8,
and P8(b). As per Ex.P8 one is dated 25.02.2013 and the
other one is dated 02.04.2013. There is no explanation why
two certificates were collected. In the certificate dated
02.04.2013, there are some corrections regarding date of
admission of PW.1 in the school, that is also not explained.
Under the circumstances, the prosecution was required to
prove the entries in the Admission Register by producing
either the original register or the certified extract of the
same. Moreover, PW.8 does not state that PW.1 was first
admitted in the first standard in their school only.
17. The Hon'ble Supreme Court in Mahadeo vs. State
of Maharashtra3 has held that the principles applicable for
(2013) 14 SCC 637
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determination of the age of juvenile in conflict with law are
applicable to the juvenile victim also. Referring to Rule 12 of
Juvenile Justice (Care and Protection of Children) Rules 2007
it was held that to consider the age of the victim first the
matriculation or equivalent certificate if available shall be
taken into consideration. If the same is not available, the
date of birth certificate from the school first attended other
than the play school shall be considered. In the absence of
any of them, birth certificate given by the Corporation or
Municipal Authority or Panchayat shall be considered. Only in
the absence of the aforesaid three records, the ossification
test shall be resorted to assess the age.
18. Though PW.1 in her deposition before the trial
Court stated that she was aged 18 years as on 03.09.2014, it
was not elicited through her or her parents or anybody that
she was drop out or she discontinued her studies. PW.8 did
not state Ex.P8 as the certificate of PW.1's first attended
school. It was not even stated on what basis the entries in
the admission register were made. The admission register
extract was also not produced.
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19. PW.1 in her deposition says that she was married
one month prior to her deposition namely 03.09.2014 with
PW.6. In that event she must be major by that time. But an
attempt was made to say that as on 08.02.2013 i.e. just one
year prior to that she was aged 15 plus. Under the
circumstances, the trial Court was justified in holding that the
victim being aged below 18 years was not proved beyond
reasonable doubt.
Reg. Sections 366A and 344 of IPC:
20. To prove that PW.1 was kidnapped from lawful
custody of her parents from Kibbanahalli cross and she was
confined in a house in Bangalore, the prosecution relied on
the evidence of PW.1, PW.6, PW.5 and PW.14. It is already
held that PW.1 being minor as on the date of the alleged
kidnap was not proved. Though it was alleged that the
accused lodged PW.1 in the house of PW.5, PW.5 did not
support the prosecution version. She denied being acquainted
with the accused or his identity. Nothing was elicited in her
cross-examination by the public prosecutor on treating her as
hostile to say that she is in any way interested in the accused
or his acquittal confers her any benefit.
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21. PW.14 claimed that she had let out her house to
PW.5 and she witnessing the accused coming to the house of
PW.5 and staying there with girl. According to her, PW.5
revealed to her that the girl who accompanied the accused
was his wife. She does not even identify the victim girl or
names her. To show that said house belonged to PW.14, the
prosecution relied on Ex.P10 tax assessment register extract.
In that the name of the owner is shown as Siddaramakka.
But name of PW.14 is Siddagangamma D/o. Ningegowda. It
is not even stated in the evidence of PW.14 that she is also
called as Siddaramakka. Therefore she being owner of the
house is also not proved. When PW.5 herself disputed about
the accused being known to her or he coming to the house
with the victim, the hearsay evidence of PW.14 that PW.5
told her that the girl found with the accused is his wife carries
no merit.
22. So far as PW.6 he says that about two years
back, one day at 6.00 p.m. he saw the accused and PW.1
together near Anjaneya Temple and they boarding KSRTC bus
from there. He says that he informed the mother of PW.1
about the same. In the complaint Ex.P4, there is no whisper
about PW.6 informing the parents of PW.1. Both PWs.3 and 4
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in their deposition before the Court did not whisper about
PW.6 informing them in that regard.
23. PW.6 in his cross-examination says that his sister
was given in marriage to the brother of PW.1 before the
incident. His cross-examination further shows that by that
time marriage talks of himself and PW.1 were going in their
families. He says that he did not talk to PW.1 when he
sighted PW.1 and the accused together which is a strange
conduct.
24. According to the evidence of PW.1 and PW.6 the
accused and PW.1 travelled in public places by public
conveyance. If the accused had forcibly taken PW.1 or
confined her in any house, there was ample opportunity for
her to seek help of public or raise alarm. The normal conduct
of any victim in such circumstance would be either to fight or
flight. But she has not done any of those things. Therefore
the trial Court was justified in holding that the charge of
kidnapping, wrongful confinement was not proved.
Reg. Section 6 of POCSO Act & 376 of IPC:
25. Since the prosecution has failed to prove the age
of the victim, the charge under Section 6 of the POCSO Act
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does not sustain. So far as the offence under Section 376 of
IPC, as already noted, the said offence took place allegedly in
the house of PW.5. But PW.5 has not supported the stay of
the accused and PW.1 in her house. According to the
prosecution, she was produced before the Investigating
Officer on 26.02.2013. The material on record shows that
from 08.02.2013 till 26.02.2013 she never made any attempt
either to escape or to seek help of any public or to inform
anybody around her.
26. It is material to note that the charge sheet was
filed for the offence under the POCSO Act. As per Sections 28
and 33 of the POCSO Act for trial of the offence under the
POCSO Act, the Special Court has to be constituted and it is
Special Court which has to take cognizance of the offences.
The records of the present case show that the Judicial
Magistrate First Class has taken cognizance of the offence
and committed the case to the Special Court. Even after such
committal, the Special Court has not taken cognizance and
directly proceeded to hear accused on the charge.
27. As per Section 164(5A) of Cr.P.C in the case
involving the offence under Section 376 of IPC, the
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Investigating Officer shall get the statement of the victim
recorded through Judicial Magistrate First Class. In this case,
not only Section 376 of IPC but also Section 6 of the POCSO
Act were invoked. In view of that, Section 164 of Cr.P.C read
with Section 25 of POCSO Act, the Investigating Officer ought
to have got recorded the statement of PW.1 through Judicial
Magistrate First Class which he has not done. There was no
explanation for the same.
28. There was delay of 6 days in filing the missing
complaint, though PW.6 claims that they were aware of the
accused kidnapping the victim. Even that delay was not
explained. The aforesaid facts and circumstances go to show
that the case of the prosecution was shrouded with suspicion
which was not dispelled by the prosecution. Considering the
aforesaid facts and circumstances, the trial Court has rightly
acquitted the accused. The appeal deserves no merits. Hence,
the following:
ORDER
The appeal is dismissed.
The Court places on record its appreciation for able
assistance rendered by Smt.K.M.Archana, learned Amicus
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Curiae and Sri Javeed.S., learned Standing Counsel for High
Court Legal Services Committee.
Registry shall disburse Rs.15,000/- as remuneration to
Smt.K.M.Archana, learned Amicus Curiae.
The High Court Legal Services Committee shall pay
admissible remuneration to Sri Javeed.S.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
