Karnataka High Court

B C Ravi vs State Of Karnataka on 4 March, 2024

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                                                                 NC: 2024:KHC:9075
                                                             CRL.A No. 27 of 2014




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 4TH DAY OF MARCH, 2024

                                                BEFORE
                             THE HON'BLE MR JUSTICE VENKATESH NAIK T
                                   CRIMINAL APPEAL NO.27 OF 2014
                      BETWEEN:

                          B.C. RAVI
                          S/O. B.S. CHAND RAJU
                          AGED ABOUT 39 YEARS
                          OCC: METER READER, MESCOM
                          MUDIGERE
                          RESIDENT OF NO.A-79, BASAVESHWARA ROAD
                          SOMAVARPETE, KODAGU DISTRICT.
                                                                       ...APPELLANT
                          (BY SRI HITESH GOWDA B.J., ADVOCATE, FOR
                              SRI S. NAGENDRA DIKSHIT)

                      AND:

                          STATE OF KARNATAKA
                          BY MUDIGERE POLICE STATION
                          CHIKKAMAGALUR DISTRICT
                          REPRESENTED BY THE PUBLIC PROSECUTOR
                          HIGH COURT BUILDING
Digitally signed by       BENGALURU.
MOUNESHWARAPPA
NAGARATHNA                                                           ...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA                 (BY SRI VINAY MAHADEVAIAH, H.C.G.P.)

                                                  ***

                            THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
                      CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 3-12-2013
                      PASSED BY THE PRINCIPAL SESSIONS AND SPECIAL JUDGE,
                      CHIKMAGALUR, IN SPECIAL CASE (IPC AND PCSO) NO.3 OF 2013,
                      CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
                      PUNISHABLE UNDER SECTION 354 OF IPC AND SECTION 12 OF
                      POCSO ACT.

                            THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING,
                      THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                                   NC: 2024:KHC:9075
                                                CRL.A No. 27 of 2014




                         JUDGMENT

This appeal is filed by the appellant/accused under

Section 374(2) of the Code of Criminal Procedure, 1973,

(for short, 'Cr.P.C.') to set aside the judgment of

conviction and order on sentence dated 3-12-2013 passed

by the Principal Sessions and Special Judge at

Chikmagalur, in Special Case (IPC & PCSO) No.3 of 2013

for the offences punishable under Section 354 of the

Indian Penal Code, 1860 (for short, 'IPC') and Section 12

of the Protection of Children from Sexual Offences Act,

2012 (for short, 'POCSO Act').

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial Court. The

appellant is the sole accused and the respondent-State is

the complainant.

3. The brief facts of the prosecution case is that, on

16-1-2013 at about 2:45 p.m., the accused entered the

house of PW2, the victim girl, aged about 11 years, on the

pretext of issuing electrical bill, took her near the house of

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PW5/CW6-Venkatesh situated at Kellur Village in Mudigere

Taluk, sexually harassed her and used criminal force by

unbuttoning her blouse, hugged her, intending to outrage

her modesty, committed the offences alleged. PWs.3 and

4-neighbours, seeing the incident, raised hue and cry, and

thus the accused escaped from the spot. The victim,

PWs.3 and 4 informed the said incident to PW1, foster

mother of the victim. Hence, PW1 lodged the complaint as

per Ex.P1. On the basis of the complaint, the Police

registered a case which led to registration of FIR and

Investigation. Later, the Investigating Officer visited the

scene of offence, recorded the statements of the witnesses

and filed the charge-sheet against the accused for the

offences punishable under Section 354 of IPC and Section

12 of POCSO Act.

4. After receipt of the charge-sheet, the trial Court

took cognizance of the offences against the accused under

Section 190(1)(b) of Cr.P.C., secured the presence of the

accused, framed the charges against the accused for the

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aforesaid offences. He pleaded not guilty and claimed to

be tried.

5. The prosecution in order to prove its case

examined in all fourteen witnesses as PWs.1 to 14, got

marked seventeen documents as per Exs.P.1 to P.17 and

closed its side of evidence. At the conclusion of the trial,

the statement of the accused was recorded under Section

313 of the Cr.P.C. by explaining the incriminating material

available in the prosecution case and the case of the

accused was of total denial.

6. After hearing the prosecution and the defence, the

trial Court convicted the accused for the offences

punishable under Section 354 of IPC and Section 12 of

POCSO Act considering the oral testimonies of PW6-Asha,

Head Mistress, who issued Ex.P10-Date of Birth Certificate,

PW7-Dr. P.Y. Kumar, who examined the victim girl, PW12-

Manjunatha Gowda, Head Constable, who registered the

case, PW13-Anantha Padmanabha, Sub-Inspector of

Police, and PW14-Padma Prasad, Civil Judge and J.M.F.C.,

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Mudigere, who recorded the statement of the accused

under Section 313 of Cr.P.C. Further, the trial Court

sentenced the accused to various terms of the sentence

and imprisonment as per the table below:

Sl. Convicted Sentence Fine in Default No. for the Rs. Sentence Offence

1. 354 of IPC RI for 3 500/- Imprisonment months for 10 days

2. 12 of POCSO RI for 3 5,000/- Imprisonment Act years for 3 months

7. Aggrieved by the judgment of conviction and order

on sentence passed by the trial Court, the accused has

preferred this appeal.

8. Heard the submission of the learned counsel for

the appellant/accused and the learned High Court

Government Pleader for the respondent-State.

9. Sri Hitesh Gowda B. J., learned counsel for the

appellant/accused, has contended that none of the

material witnesses has supported the case of the

prosecution. PW1-foster mother of the victim has denied

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the contents of Ex.P1-complaint and has even deposed

that her foster daughter-PW2 never stated anything about

the incident against the accused. She has even denied the

Police conducting Ex.P2-spot mahazar in her presence.

The victim has denied the prosecution case and she has

stated that the accused did nothing to her. The

eyewitnesses to the incident, PW3-Jaya and PW4-Prema,

have denied the incident and also stated that they have

not given statements before the Police as per Exs.P7 and

P8. The evidence of PWs.5 and 9 are hearsay and they

have denied the case of the prosecution. The witnesses to

spot mahazar-Ex.P2, i.e PWs.10 and 11 also denied to

have conducted spot mahazar in their presence. Under

such circumstances, the trial Court ought to have

acquitted the accused, but has convicted the accused on

the basis of oral evidence of PW14-Judicial Magistrate,

who recorded the statement of the victim under Section

164 of Cr.P.C. It is contended that the statement of the

witness under Section 164 of Cr.P.C. cannot be treated as

substantive evidence and no conviction can be based upon

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the strength of such statement. Victim's statement

recorded under Section 164 of Cr.P.C. can only be used to

corroborate the statement of a witness, or to contradict

her statement. The trial Court relied upon the evidence of

PW12-Manjunatha Gowda, Head Constable, who received

the complaint and registered the case. In fact, this

reliance placed by the trial Court is erroneous with the

factual statement which finds place in the FIR-Ex.P15 as

the same is not deposed by PW1 in her evidence or any

other eyewitnesses, especially, PWs.3, 4 and neighbouring

witnesses, PWs.5 and 9. Hence, the evidence of PW12-

Head Constable and PW14-Magistrate cannot be

corroborated with the evidence of PW2, the victim,

eyewitnesses and other circumstantial witnesses. The trial

Court, in the absence of material particulars, drew

presumption under Section 29 of POCSO Act. In fact,

presumption for Section 12 of POCSO Act cannot be drawn

under Section 29 of POCSO Act. But the trial Court drew

presumption under the aforesaid provisions and convicted

the accused in the absence of incriminating material

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against him. Hence, the conviction and sentence passed

against the accused is perverse. On all these grounds, he

prayed to allow the appeal.

10. Sri Vinay Mahadevaiah, learned High Court

Government Pleader, has contended that the accused has

committed the offence against PW2, a minor. The victim

has clearly stated before the Magistrate regarding the

manner of sexual assault and outraging modesty of the

victim made by the accused while giving her statement

under Section 164 of Cr.P.C., and PW14-Magistrate has

also categorically stated that the victim stated about the

act done by the accused. But, the accused has not placed

any contra-evidence to disbelieve the prosecution version.

The accused has pleaded that a false complaint has been

lodged against him due to animosity, but in the

prosecution case, such rivalry is not forthcoming by the

defence. It is contended that the trial Court, based upon

the oral testimonies of PW14-Magistrate, PW12-

Manjunatha Gowda, Head Constable, PW13-Investigating

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Officer, evidence of PW6-Head Mistress, who issued Date

of Birth Certificate as per Ex.P10 and PW7-

Dr. P. Y. Kumar, who examined the victim and issued

Wound Certificate as per Ex.P11, has convicted the

accused. Therefore, the trial Court has rightly drawn

presumption under Section 29 of POCSO Act and convicted

the accused for the aforesaid offences. Hence, he prayed

to dismiss the appeal.

11. I have given my anxious consideration to the

arguments advanced by the learned counsel for the

appellant/accused and the learned High Court Government

Pleader for the respondent-State and perused the entire

material including the original records.

12. In view of the rival contentions urged by the

learned counsel for the parties, the points that would arise

for consideration of the Court is:

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i. Whether the prosecution has proved its case beyond reasonable doubt that on 16-1-2013 at 2:45 p.m., near the house of PW5-Venkatesh situate at Kellur Village, Mudigere Taluk, the accused committed sexual harassment on the victim-PW2 and used criminal force by unbuttoning the blouse and by hugging her, intending thereby to outrage the modesty and thereby, committed offences punishable under Section 354 of IPC and Section 12 of POCSO Act?

ii. Whether the appellant/accused has made out a case to interfere with the impugned judgment passed by the trial Court in convicting the accused for the offences under Section 354 of IPC and Section 12 of POCSO Act?

13. Point No.1: The sum and substance of the

prosecution case is that on 16-1-2013 at about 2:45 p.m.

near the house of PW5, the accused sexually assaulted

and outraged the modesty of PW2-victim girl knowing that

she was a minor, aged about 11 years. In order to

establish its case, the prosecution examined PW1-Rathna,

foster mother of the victim. In her evidence, she has

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stated that the victim-PW2 is her foster daughter and she

brought the victim-PW2 since her childhood. The victim

was aged about 11 years and was studying in 8th Standard

at MHPS School, Mudigere. It was her evidence that,

during the year 2013, one day, she had been to coolie and

returned at 2:45 p.m., at that time, the victim was in her

house, the accused came to her house for issue of

electricity bill. As there was issue of electricity bill, she

lodged a complaint to the Police. The Police came to her

house and took her signature on Exs.P1 and P2, however,

she denied the contents of Exs.P1 and 2. Hence, PW1 was

treated to be hostile to the case of the prosecution. In the

cross-examination, she denied to have lodged the

complaint as per Ex.P1 and affixing her signature on

Ex.P2-spot mahazar.

14. PW2-victim has stated that during the year 2013,

she was studying in 8th standard at MHPS School,

Mudigere. The accused did not come to her house and has

not done anything to her and she did not tell anything to

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PW1 and her neighbours. However, she has stated that,

she has given statement to the Magistrate as per Ex.P5.

Hence, she turned hostile to the case of the prosecution.

In the cross-examination, she denied her statement said

to have given before the Magistrate stating that

"on 16-1-2013, she went to School at about 8:00 a.m. and

came to her house at 2:30 p.m. When she came back from

the School, she was changing her dress by closing the

door, at that time, somebody knocked the door. When

she opened the door, the accused was present and the

accused asked her as to anybody present in the house

apart from her. When she told that nobody was there, in

the guise of giving electricity bill, the accused took her by

holding hands near the house of PW9-Vijaya, made her to

sit on katte and put his hand on her, unbuttoned her shirt,

hugged her in spite of her resistance and was putting her

hand all over her person. The accused escaped from the

spot by seeing PWs.3 and 4 who came there by making

hue and cry. Immediately, PWs.1 and 9 came there.

Hence, she narrated the entire incident to them."

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15. PW3-Jaya and PW4-Prema are neighbours of

PWs.1 and 2 and they are eyewitnesses to the incident.

They have turned hostile to the case of the prosecution.

16. PW5-Venkatesh and PW9-Vijaya (wife of PW5)

are the neighbours of the victim, who came to the spot

immediately after the incident. They have turned hostile to

the case of the prosecution.

17. PW6-Asha, Head Mistress of MHPS, who

furnished the Date of Birth Certificate of the victim girl as

per Ex.P10. As per Ex.P10, the date of birth of the victim

is 10-5-2001.

18. PW7-Dr. P.Y. Kumar, Medical Officer, who

examined the victim and issued Wound Certificate as per

Ex.P11. In his evidence, he has stated that he examined

the victim and no injuries were found on the person of the

victim.

19. PW8-Chandrashekar, Project Co-ordinator,

Prasanna Technology, Mangaluru, has stated that the

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accused was employed as a Meter Reader in the Village on

behalf of MESCOM. Accordingly, he issued his report as

per Ex.P13.

20. PW10-Anand and PW11-Avinash are witnesses to

spot mahazar-Ex.P2. They turned hostile to the case of the

prosecution.

21. PW12-Manjunatha Gowda, Head Constable, has

stated that on 17-1-2013 at about 1:30 p.m., he received

the complaint as per Ex.P1 and registered an FIR as per

Ex.P15 and on the same day, he sent the victim girl along

with CW13 for medical examination.

22. PW13-Anantha Padmanabha, Sub-Inspector of

Police, who investigated the matter and filed the charge-

sheet against the accused.

23. PW14-Padma Prasad, Civil Judge and J.M.F.C.,

Mudigere, has stated that on 18-1-2013, he recorded the

statement of the victim under Section 164 of Cr.P.C. as

per Ex.P5. He withstood the test of cross-examination.

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Except few suggestions, nothing was suggested to him as

to why he recorded Ex.P5-statement of the victim.

24. On perusal of the prosecution case, it appears

that victim was a minor girl, during the year 2013. In

order to substantiate the same, the prosecution got

examined PW6, Head Mistress, who issued Ex.P10-Date of

Birth Certificate. As per Ex.P10, the date of birth of PW2 is

10-5-2001. Hence, as on the date of alleged incident, the

victim was aged about eleven years and seven months.

The accused has not disputed the contents of Ex.P10. The

Date of Birth Certificate is issued by the competent

authority based on the School Admission Register and in

performance of the public duty. The accused has not

disputed the correctness of Ex.P10. Hence, it is proved

that the date of birth of the victim is 10-5-2001. Under

such circumstances, the learned High Court Government

Pleader vehemently argued and submitted that

Investigating Officer and PW14-Civil Judge and J.M.F.C.,

who recorded the statement of the victim, have supported

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the case of the prosecution and the fact that the victim

was minor then and therefore, the trial Court has rightly

drawn the presumption available under Section 29 of

POCSO Act.

25. A perusal of the finding recorded by the trial

Court, it would show that the trial Court has accorded

importance to the evidence of hostile witnesses. On re-

appreciation of their evidence, I am satisfied that their

evidence is neither reliable nor sufficient to prove the

incident of outraging the modesty and sexually harassing

the victim. It is to be noted that their statements recorded

by the Police during the course of investigation under

Section 161 of Cr.P.C. could only be used for the purpose

of finding omissions and contradictions. Similarly, the

statement of the victim recorded under Section 164 of

Cr.P.C. by the Magistrate cannot be used as substantive

evidence and that statement could be used for the purpose

of contradiction and corroboration. The question of making

use of that statement for the purpose of corroboration

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would be out of question, inasmuch as the victim has

turned hostile to the prosecution. It is to be noted that in a

criminal trial, the prosecution has to prove the guilt of the

accused beyond all reasonable doubt. If there is a doubt in

the case of the prosecution with regard to the involvement

of the accused, in the commission of crime, then benefit

must go to the accused. It seems that the trial Court in

the absence of material on record ought to have raised

suspicion about the involvement of the accused in the

commission of the crime. It is a settled legal position that

the suspicion, however, strong it may be, cannot be

substituted for the proof. The accused cannot be convicted

on the basis of mere suspicion. In the facts and

circumstances, in my opinion in this case, the prosecution

has failed to prove the guilt of the accused. A star witness,

PW2, has turned hostile to the case of the prosecution. It

is to be noted that her statement recorded under Section

164 of the Cr.P.C. cannot be used as a substantive piece

of evidence as she did not support the case of the

prosecution. In the facts and circumstances, I am of the

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view that in the teeth of the available evidence, the

conviction and sentence awarded to the accused cannot be

sustained. The prosecution has failed to bring home the

guilt against the appellant beyond all reasonable doubt.

26. Further, the accused has denied all the

allegations made against him with regard to the alleged

act of outraging modesty of PW2-victim and sexually

harassing a child as contended by the prosecution.

27. In criminal cases, the burden of proof, proving

the prosecution case is on the prosecution. The standard

of proof required is "proof beyond reasonable doubt" and

this standard is higher than the "standard of

preponderance of probability" prescribed for every case.

The Hon'ble Supreme Court in the case of STATE OF U.P.

vs. KRISHNA GOPAL AND ANTOHER reported in

(1988) 4 SCC 302 has eloquently explained the concept

of "proof beyond reasonable doubt".

"25. xxx xxx xxx

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A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case.

xxx xxx xxx

Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over- emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and,

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ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice."

28. It is pertinent to keep in mind the statutory

presumption under Section 29 of POCSO Act while

assessing the evidence. In the realm of evidence, this

statutory presumption through rebuttable one plays a vital

role. Justice Krishna Iyer made eloquent observation in

(1973) 2 SCC 793 in the case of SHIVAJI SAHABRAO

BOBADE AND ANOTHER vs. STATE OF

MAHARASHTRA, which reads as under:

"The Judicial instrument has a public accountability. The cherished principle or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but once innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise, any practical system of justice will break down and lose credibility with the community."

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29. Further, Section 29 of POCSO Act, provides for

presumption as to certain offences under Sections 3, 5, 7

and 9 of POCSO Act, is material in the realm of

assessment of evidence as the accused is expected to

effectively rebut this presumption in case main ingredients

are established by the prosecution.

30. Section 29 of POCSO Act reads as follows:

"29.Presumption as to certain offences.-Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."

31. On perusal of the evidence of the prosecution

witnesses, the trial Court found that there is clear,

consisting and convincing evidence in the prosecution

witnesses and the trial Court convicted the accused for the

aforesaid offences by drawing presumption under Section

29 of POCSO Act, but the trial Court ought not to have

raised presumption under Section 29 of POCSO Act as

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presumption is not available for Section 11 made

punishable under Section 12 of POCSO Act.

32. Sections 11 and 12 of POCSO Act read as under:

11. Sexual harassment.-A person is said to commit sexual harassment upon a child when such person with sexual intent,--

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii) shows any object to a child in any form or media for pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of

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the body of the child or the involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification therefor.

12. Punishment for sexual harassment.- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

33. Learned counsel for the appellant further

contended that there is no corroborative evidence with

regard to the alleged act alleged to have been committed

by the accused on the relevant date, time and place. The

evidence of the victim-PW2, her foster mother-PW1,

eyewitness to the incident-PWs.3 and 4, neighbouring

witnesses-PWs.5 and 9 have not supported the case of the

prosecution. Therefore, the guilt of the accused is not fully

established by the prosecution case. In the absence of

any incriminating material against the accused, the trial

Court has wrongly drew presumption under Section 29 of

POCSO Act. On perusal of Section 29 of POCSO Act,

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whenever there is evidence of material witnesses with

regard to the offences defined under Sections 3, 5, 7 and

9 of POCSO Act, it is bound on duty of the Court to draw

presumption under Section 29 of POCSO Act. It is the

primary duty of the prosecution to prove its case, but it

cannot shift the burden on the accused. Firstly, the

prosecution must establish its case and then the burden

shifts on the accused. In the instant case, the primary

burden casted on the prosecution has not been

successfully proved by the prosecution. Therefore, the trial

Court has wrongly drawn presumption under Section 29 of

POCSO Act.

34. On the other hand, the prosecution failed to

prove its case beyond reasonable doubt and it also failed

to discharge the burden casted upon it. Therefore, looking

into any angle, the prosecution failed to prove its case

beyond reasonable doubt that the accused outraged the

modesty of the victim and sexually harassed her in the

manner stated by the prosecution.

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35. In the facts and circumstances of the case, the

prosecution has failed to prove its case beyond reasonable

doubt. Hence, the trial Court has wrongly convicted the

accused for the aforesaid offences. Hence, I answer point

No.1 in the negative.

Point No.2: In view of the foregoing discussion on

point No.1, the appeal filed by the accused deserves to be

allowed. Hence, I proceed to pass the following:

ORDER

i. The appeal filed by the appellant/accused is

allowed.

ii. The judgment of conviction and order on

sentence dated 3-12-2013 passed by the

Principal Sessions and Special Judge at

Chikmagalur, in Special Case (IPC & PCSO) No.3

of 2013, is hereby set aside.