Karnataka High Court
Naveen S/O Sheshappa Garampalli vs The State Through on 10 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200026 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200026 OF 2019 (374)
BETWEEN:
NAVEEN S/O SHESHAPPA GARAMPALLI,
AGE:19 YEARS, OCC:COOLIE,
R/O AINOLI VILLAGE,
TQ.CHINCHOLI,
DIST.KALABURAGI - 585 307.
...APPELLANT
(BY SRI. AVINASH A.UPLOANKAR, ADVOCATE)
Digitally
AND:
signed by
SHILPA R
TENIHALLI THE STATE THROUGH
Location: CHINCHOLLI POLICE STATION,
HIGH
COURT OF DIST.KALABURAGI,
KARNATAKA
NOW REPRESENTED by ADDL SPP.,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585107.
...RESPONDENT
(BY SMT.ANITA M.REDDY, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C
PRAYING to SET ASIDE THE JUDGMENT OF CONVICTION &
Order of SENTENCE DATED 11.01.2019 PASSED BY THE II
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CRL.A No. 200026 of 2019
ADDL. SESSIONS JUDGE, KALABURAGI IN SPL.CASE
(POCSO) NO.25/2018 CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCES P/U/S 354(1)(A)(i)(ii),
354-D, 504, 506 OF IPC AND U/SEC.8 AND 12 POCSO
ACT, 2012.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 374(2) of Cr.P.C is filed
with a prayer to set-aside the judgment of conviction and
order of sentence passed by the Court of the II Additional
Sessions Judge, Kalaburagi in Special Case (POCSO)
No.25/2018 dated 11.01.2019 wherein the appellant has
been convicted for the offences punishable under
Sections 354(1)(A)(i)(ii), 354-D, 504 and 506 of IPC and
Sections 8 and 12 of Protection of Children from Sexual
Offences Act, 2012.
2. Heard the learned counsel for the parties.
3. It is the case of the prosecution that on
20.02.2018, when the victim girl/PW.1 who had gone to
her collage to collect her examination hall ticket was on
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her way back to her home, she was waiting for a bus in
Chincholi Bus Stand, the appellant herein who came there
pestered her to love him and marry him and when she
refused on the ground that was is a minor, he caught hold
of her hands, dragged her and kiss her lips, when she
raised a hue and cry, the appellant allegedly abused her in
filthy language and after threatening her with dire
consequences to her life, the appellant went away from
the spot.
4. FIR in Crime No.39/2018 was registered in
respect of the alleged incident that had taken place on
20.02.2018 on the basis of the first information received
from the victim-girl on 20.02.2018 at about 19.00 hours
against the appellant herein for the aforesaid offences. The
police after investigation had filed charge-sheet against
the appellant for the aforesaid offences and after the
charges were framed by the Trial Court the same were
read over and explained to the appellant. Since the
appellant denied the charges and claimed to be tried, the
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prosecution in order to prove its case against the appellant
examined eight witnesses as PW.1 to P.W.8 before the
Trial Court and got marked seven documents as Ex.P.1 to
Ex.P.7. On behalf of the accused, no defence evidence was
led. The Trial Court thereafter heard the arguments
addressed on both sides and convicted the appellant for
the offences punishable under Sections 354(1)(A)(i)(ii),
354-D, 504 and 506 of IPC and Sections 8 and 12 of the
Protection of Children from Sexual Offences Act 2012.
5. For the offence punishable under
Section 354(A)(1)(i)(ii) of IPC appellant was sentenced to
undergo simple imprisonment for a period of three years
and to pay a fine of `25,000/- and in default to pay fine,
he shall undergo simple imprisonment for a period of 18
months. For the offence punishable under Section 354-D
of IPC the appellant was sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine
of `25,000/- and in default to pay fine, he shall undergo
simple imprisonment for a period of 18 months. For the
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offence punishable under Section 504 of IPC the appellant
was sentenced to undergo rigorous imprisonment for a
period of two years and to pay a fine of `10,000/- and in
default to pay fine, he shall undergo simple imprisonment
for a period of six months. For the offence punishable
under Section 506 of IPC the appellant was sentenced to
undergo rigorous imprisonment for a period of two years
and to pay a fine of `10,000/- and in default to pay fine,
he shall undergo simple imprisonment for a period of six
months. For the offence punishable under Section 8 of
POCSO Act, 2012 the appellant was sentenced to undergo
rigorous imprisonment for a period of five years and to
pay a fine of `25,000/- and in default to pay fine, he shall
undergo simple imprisonment for a period of 15 months.
For the offence punishable under Section 12 of POCSO Act,
2012 the appellant was sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine
of `25,000/- and in default to pay fine, he shall undergo
simple imprisonment for a period of 18 months.
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6. Being aggrieved by the aforesaid judgment of
conviction and order of sentence dated 11.01.2019 passed
by the court of II Additional Sessions Judge, Kalaburagi in
Special Case (POCSO) No.25/2018, the appellant/accused
is before this Court.
7. Learned counsel for the appellant having
reiterated the grounds urged in the appeal memorandum
submits that the prosecution has failed to examine any
independent witnesses in support of its case. On the basis
of the evidence of the victim-girl which is not corroborated
by any other witnesses the Trial Court could not have
convicted the appellant for the aforesaid offences. He
submits that the evidence of the victim girl is full of
inconsistency and in her statement recorded under
Section 164 of Cr.P.C she has not made any serious
allegations against the appellant.
8. Per contra, learned High Court Government
Pleader who has appeared on behalf of respondent/State
has argued in support of the impugned judgment of
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conviction and order of sentence and has prayed to
dismiss the appeal.
9. The prosecution in order to prove its case
against the appellant in all examined eight witnesses as
PW.1 to PW.8. PW.1 is the victim girl who was studying in
II year PUC as on the date of incident. Her date of birth is
stated to be 05.06.2020 and therefore as on the date of
incident she was aged about 17 years 8 months. PW.2 is
the elder sister of PW.1 who had taken PW.1 along with
her to the police station for the purpose of registering the
FIR against the appellant. PW.3 is the father of the victim
girl and PW.4 is the pancha to the spot mahazar Ex.P.3.
PW.5 is another pancha to the spot mahazar Ex.P.3 and
PW.6 is the Assistant Sub Inspector of Police who had
conducted the investigation in the case and filed the
charge-sheet against the appellant. PW.7 is the
Headmaster of the school in which the victim girl/PW.1
was studying. Ex.P.6 is the SSLC marks card of victim girl
and Ex.P.5 is the endorsement issued by the school to the
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effect that the date of birth of the victim girl was
05.06.2000.
10. The alleged incident that had taken place in
Chincholi Bus Stand at about 13.30 hours. Therefore, it is
quite natural that there could have been many other
students and passengers or travelers in the bus stand at
that point of time. Even according to the victim girl/PW.1
there were other students and villagers from her village
who were present in the bus stand at the time of incident.
However, the prosecution has not recorded the statement
of any one of them during the course of investigation.
Independent witnesses examined in the present case are
the sister and father of the victim girl. PW.4 and PW.5 are
the panch witnesses to the spot mahazar and they have
turned hostile to the prosecution case. PW.1/victim girl in
her first information has stated that on 20.02.2018 at
about 1.30 p.m. when she was in the Chincholi bus stand,
the appellant who came there, pestered her to love him
and when she refused for the same, he outraged her
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modesty by pulling her hands and also committed sexual
assault on her by kissing on her lips in front of the public.
It is further alleged that he had threatened her with dire
consequence to her life before he left the place of incident.
11. The victim girl was produced before the
jurisdictional Magistrate and her statement under Section
164 of Cr.P.C was recorded on 22.02.2018 itself. Before
the Magistrate she had not made any serious allegation as
found in the first information that was submitted by her to
the police. In her statement before the Magistrate under
Section 164 of Cr.P.C she has stated that the appellant
who had consumed alcohol had teased her and also
threatened her that he will commit the murder of her
brother. The victim girl was examined as PW.1 in the
present case. Though in the first information the victim girl
had stated that the appellant had caught hold of her hands
and after pulling her had kissed her lips, during the course
of her examination-in-chief she has stated that the
appellant had kissed her on her cheek. According to the
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first informant immediately thereafter she has returned to
home and informed about the incident to her parents, but
no steps were taken for registration of any criminal case
against the appellant. It is only after her elder sister came
from Chandrampally, she took the victim girl to the police
station and a complaint was lodged as per Ex.P.1. From a
reading of the averments made in the first information and
also deposition of PW.1 before the Court, it is seen that
she has made allegations against the appellant, but in her
statement under Section 164 of Cr.P.C she has not made
any such allegations which would attract the alleged
offence against the appellant.
12. PW.2 and PW.3 are the hearsay witnesses in
the present case. Therefore the entire case of the
prosecution is solely based on the testimony of
PW.1/victim girl. Considering the fact that the alleged
incident had taken place in a busy bus stand where 100 of
peoples would be present normally and also having regard
to the statement made by the victim girl, that there were
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several students and villagers present in the bus stand
when the alleged incident had taken place, it is required to
take note of the fact the prosecution very surprisingly has
not made any attempt to record the statement of any one
of them.
13. It is trite that in case relating to sexual assault,
outrage of modesty of a woman, conviction can be based
on the sole testimony of the victim provided the same
inspires confidence in the mind of the Court. In the case
on hand, considering the inconsistency in the statement
made by the victim girl and also having regard to the fact
that the prosecution has not examined any of the
independent witnesses who were present at the spot at
the time of the alleged incident, I am of the opinion that it
is not safe to convict the appellant for the alleged offences
solely on the basis of the sole testimony of the victim. The
victim girl was aged about 17 years 8 months and the
appellant was aged about 19 years as on the date of
incident. The Trial Court without appreciating the fact that
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even though the incident in question had taken place in a
broad day light in a public place like Chincholi bus stand,
the prosecution has not recorded the statement of any one
of the independent witnesses present in the bus stand has
proceeded to convict the appellant for the aforesaid
offence solely on the basis of the testimony of the victim
girl/PW1 which does not inspire confidence in the mind of
the Court in view of the inconsistency in her statement
recorded at various stages.
14. Under the circumstances, I am of the opinion
that the Trial Court was not justified in passing the
judgment of conviction and order of sentence against the
appellant. Accordingly, the following :
ORDER
The appeal is allowed.
The impugned judgment of conviction and the order
of sentence passed by the Court of the II Additional
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Sessions Judge, Kalaburagi in Special Case (POCSO)
No.25/2018 dated 11.01.2019 is set-aside.
The appellant is acquitted of the charge-sheeted
offences.
Bail bonds, if any of the appellant stands cancelled
and the fine amount, if any, deposited by him shall be
refunded to him.
Sd/-
JUDGE
SN
