Karnataka High Court
The State Of Karnataka vs Ramappa Urf. Ramanna on 12 November, 2024
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CRL.A No. 100360 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100360 OF 2021 (A)
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY
THE POLICE SUB-INSPECTOR,
BETAGERI POLICE STATION,
DISTRICT: GADAG,
THROUGH THE ADDL.STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
- APPELLANT
(BY SRI. M.B.GUNDAWADE, ADDL. SPP.)
AND:
RAMAPPA URF. RAMANNA,
S/O. YALLAPPA MAYANNAVAR
Digitally signed by
CHANDRASHEKAR
LAXMAN
URF. TIRAKANAGOUDAR,
KATTIMANI
Location: HIGH
COURT OF
AGE: 55 YEARS, OCC: WATCHMAN,
KARNATAKA
Date: 2024.11.13 R/O. HARLAPUR, TQ: GADAG,
12:09:31 +0530
DIST: GADAG-582115.
- RESPONDENT
(BY SRI N.M.PATIL, ADV. FOR SRI J.S. SHETTY, ADV.)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1) AND
(3) OF THE CPC., PRAYING TO, GRANT LEAVE TO APPEAL AND SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
08.01.2020 PASSED BY THE ADDL. DISTRICT AND SESSIONS
JUDGE, GADAG IN S.C.NO.45/2016 (POCSO) AND CONVICT AND
SENTENCE THE RESPONDENT / ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 376 (2) (I) OF IPC AND SECTION 4
AND 6 OF POCSO ACT 2012, IN THE INTEREST OF JUSTICE AND
EQUITY.
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CRL.A No. 100360 of 2021
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.10.2024 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, the State has challenged the acquittal
judgment dated 08.01.2020 in S.C.No.45/2016 (POCSO) on
the file of the Addl. District and Sessions Judge, Gadag. The
accused faced trial for the offences punishable under Section
376(2)(i) of IPC and Section 4 and 5 of POCSO Act, 2012.
2. Briefly stated the prosecution case is, PW1 is the
mother and PW2 is the father of the victim. The victim was
aged 3 and ½ years female child baby. PWs.1 and 2 were
labours, working in an under construction building as
watchmen at Harlapura Extension Bovipal of Gadag and
stayed nearby the building itself. The accused was also
working nearby as a watchman in another building under
construction belonging to PW10-Praveen.
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2.1 On 12.05.2016, PW18-WPSI of Betageri
Extension Police Station of Gadag on receipt of intimation
from the District Hospital, Gadag, visited the Hopsital and
recorded the statement of PW1 as per Ex.P1 and registered
the case in Crime No.84/2016 and submitted the FIR to the
jurisdictional Court as per Ex.P11.
2.2 On perusal of Ex.P1, it is pertinent to note that,
the accused while working as a watchman in the building
belonging to PW10 carried away the victim child at about
7.30 a.m., offering to provide her snacks. At about 10.00
a.m., the bar benders i.e. PWs.6 and 9 rushed to PWs.1 and
2 informing that at about 9.00 p.m., the accused had
committed sexual assault on the victim child and they
rescued her and requested them to take care of victim child.
PWs.1 and 2 rushed to the said building, where they saw
victim was weeping, blood was dropping from her thighs,
they saw the bloodstains on the spot. They made an enquiry
with the child, who informed that the accused had committed
sexual assault on her. PW1 checked the genital of the child
and found bleeding in the genital. After confirming that the
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accused had committed alleged sexual assault, the child was
brought to the Government Hospital. On arrival of the police
in the hospital, statement under Ex.P1 was given to the
police. PW24-Investigating Officer took up the matter, the
investigation led to filing of the charge sheet against the
accused. During investigation, the accused was arrested and
subjected to judicial custody. During trial, the prosecution
examined 23 witnesses and got marked 40 documents as
Exs.P1 to P40. M.Os.1 to 13 were the material objects
marked by the prosecution. The accused did not lead any
defence evidence.
3. On appreciation of the evidence, the Trial Court
recorded acquittal giving reasons that the injury/bleeding
noticed by PW1 was not noticed by the doctor who treated
the victim. It is not possible to believe that the accused had
worn the same cloth from 12.05.2016 to 14.05.2016. PWs.1,
6 and 9 had not stated about the clothes worn by the
accused at the time of incident. They also did not identify the
said clothes. It is not coming in the evidence that at the time
of arrest, the accused was wearing the same clothes which
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were worn at the time of incident. The prosecution failed to
establish sexual assault on the victim beyond reasonable
doubt. Two versions were possible, one which was in favour
of the accused and accordingly benefit of doubt was
extended to the accused.
4. We have heard the arguments of Sri M.B.
Gundawade, learned Addl. SPP and Sri N.M.Patil, advocate
appearing on behalf of Sri J.S.Shetty, learned counsel for
respondent/accused.
5. Learned Addl.SPP submitted that the prosecution
has placed concrete evidence through PWs.1, 6 and 9. That
the accused was assailant, the victim was last found in the
company of the accused and she was bleeding from her -
genital at that time. The medical evidence supports their
testimony. The victim is aged 3 and ½ years. The accused
being aged more than 55 years committed sexual assault on
victim child. On the nail clippings and on the cloth of the
accused, bloodstains of the child was identified as per the
FSL Report. The medical examination report of the accused
clearly pointed out the injuries on his genital. The medical
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evidence corroborates the testimonies of PWs.1, 6 and 9.
Instead of appreciating the evidence from this angle, the
Trial Court has given reasons which are not forthcoming from
the evidence and therefore there is a case for interference
with the impugned judgment.
6. Per contra, learned counsel for the accused has
contended that PWs.6 and 9 saw the child with bleeding on
her thighs, they informed the same to PW1 who carried the
child to the hospital immediately. Medical evidence clearly
point out that there was no injuries found on the body of the
child including the genital. Opinion of the Medical Officer
clearly shows that the child was very sensitive even a little
light touch bleeding is inevitable. Medical evidence is totally
against the prosecution. If really there was sexual assault
against the child, there ought to have been any physical
injury on the vulnerable part of the child. PWs.6 and 9
though claims that they are the eyewitnesses, cross-
examination demonstrate that they did not see the accused
and child in privacy. The seizure of underwear in MO1
belonging to the accused was a make believe as the arrest of
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accused was on 14.05.2016. Even if the evidence of PWs.6
and 9 is believed that the accused was caught hold at the
spot on 12.05.2016, how the Investigating Officer arrested
the accused on 14.05.2016 is not explained. The Trial Court
has rightly observed that the injury proposed by PWs.1, 6
and 9 is not at all available on the body of the child. There
are no circumstances which able to explain that the child was
subjected to sexual assault. Hence, the Trial Court has
rightly accepted that the defence is more probable, the
prosecution has not proved the alleged sexual assault on the
victim beyond reasonable doubt and extended the benefit of
doubt and he supported the impugned judgment.
7. We have perused the entire evidence. PW1 is the
complainant-mother and Ex.P1 is her statement. On perusal
of the statement of complaint, it is pertinent to note that the
averments about sexual assault were gathered from the
victim. The victim was not brought before the Court. The
victim was brought before the Magistrate for recording her
statement under Section 164 of Cr.P.C. Ex.P3 is the
statement of PW1 and also it is accompanied by the
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statement of the victim. On perusal of the 164 statement of
PW1, she states that she gathered the information from the
victim herself, but victim did not open her mouth and she
was silent before the Magistrate. For the reason of the victim
was 3 and ½ years vulnerable child, she was not examined
before the Court, but the endorsement made by the learned
Magistrate on 13.05.2016 clearly point out that the child was
silent and it was not aware of anything. This clearly point out
that the averments made in Ex.P1 are not based on the
information that was given by the victim, but it was the
information invented by PW1.
8. PW2 is the father of the victim, PW11 is the
goldsmith under whom the accused was working as
watchman. PW12-Head Constable who is working in the S.P.
Office, Gadag. Infront of the S.P. Office, PWs.1 and 2 were
working under construction building as watchmen. PW13 is
the mother of PW1. All these witnesses are hearsay
witnesses; they came to know about the said incident said to
have been committed by the accused. Their cross-
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examination clearly demonstrates nothing except they being
heard and deposed before the Court.
9. PW10 is the owner of the building with whom the
accused was working as a watchman. His evidence is of no
consequence. PWs.3 and 5 are the panch witnesses to Ex.P3
mahazar. PW4 is the panch witness to seizure of MO1-
underwear under Ex.P6-mahazar. PWs.7 and 8 are the panch
witnesses to the seizure of clothes brought from the hospital
belonging to the accused as well as the victim under Ex.P7.
PW14 is the Constable who scribed these mahazars. PW3
though supports the spot inspection by the police, his cross-
examination demonstrated that he is unreliable as he signed
the mahazar without knowing its contents at the police
station. PWs.7 and 8 have turned hostile regarding seizure of
the material objects.
10. The star witnesses to the case are PWs.6 and 9
who claim to be the eyewitnesses. We have carefully perused
the testimony of PWs.6 and 9. Though they have supported
that near the under construction building of PW10, they saw
the victim weeping with bloodstains on her cloth and also
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blood was dropping from her legs, it appears that they
caught hold of the accused on the pretext that he had
committed sexual assault against the victim child. They
informed the same to PWs.1 and 2 and accordingly they
stated before the police. The cross-examination of PW6
demonstrates that he was not able to say the clothes worn
by the accused when he was caught hold of. PW9 came to
the spot later on the information of PW6. Nothing brought
out other than what is so recorded. PWs.6 and 9 admit in
their cross-examination that they were not seen the sexual
assault committed by the accused against the victim. PWs.6
and 9 only made an imagination that the accused might have
committed sexual assault against the victim. Accordingly,
they informed to PW1 and PW1 put the same to Ex.P1 while
setting the law into motion.
11. In view of above, the prosecution was required to
prove and establish the child was the victim of sexual
assault. In this regard, the medical evidence is very much
relevant. PW20-Dr.Amruta S.Patil was the Medical Officer
who has examined the victim on 12.05.2016 and issued
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Ex.P13-report. Her testimony goes to show that though she
observed bloodstains on the underwear of the child, there
were no scratches and bruises on the body of the victim. On
genital examination of the victim, she did not see any
external injuries. Hymen was intact with minimal bloodstain.
No significant finding was found. Hence, she gave the
opinion that there was no sign of recent sexual intercourse
and the child was not used to sexual act. Accordingly Ex.P13
is her opinion report. All of a sudden PW20 gives Ex.P14-
opinion report with a different version after seeing the
Ex.P15-FSL report regarding bloodstains found on the
sample nailing of the accused and his cloth that, there is a
sign of sexual assault.
12. PW22 is the doctor who examined the accused.
He has noticed the injuries on the glans penis of the accused
with red in colour and issued Ex.P16-report that if the
accused came in contact with physical object; he might have
sustained such injuries. The examination of the accused was
on 14.05.2016 whereas the alleged incident was on
12.05.2016 after 48 hours.
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13. PW21 is the FSL Expert who examined 12 articles.
His report is as per Ex.P15 to the effect that there was 'B'
group blood belonging to the victim on one panty, one dhoti,
banyan and finger clippings of the accused. It is pertinent to
note from the evidence of PWs.6 and 9 that it is the accused
who washed bloodstains of the victim. Quite natural he might
have come in contact with the bloodstains on his finger
nailing and also his dhoti. That will not go into incriminating
in support of the prosecution as the accused might came to
the rescue of the victim when the child was found bleeding
on her legs. The opinion of PW20 clearly point out that even
if the child came in local touch or disturbance which can lead
to bleeding. When there is no injury on the genital of the
child, nor any scratch or bruises on the body of the child that
the opinion of PW20 probablises that the child might have
had local touch or disturbance when it was playing near
under construction building where the building materials had
been kept. Hence the evidence of PW20-Medical Officer
clinches the issue.
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14. Interesting to note that PWs.6 and 9
apprehended the accused on 12.05.2016 at 10.00 a.m.
whereas PW23-Investigating Officer arrested the accused on
14.05.2016 at 6.00 a.m. near Abdul Kalam Shadi Mahal near
Ring Road of Gadag. This evidence of PW23 cannot be
believed as the accused was in the custody of PWs.6 and 9
on the date of alleged incident itself. Hence the manipulation
cannot be ruled out.
15. We have carefully perused the impugned
judgment. The Trial Court has rightly observed that the
injury noticed by the mother was not found on the body of
the victim when the child was examined by PW20. PW20
himself says that if the child came in local touch, she may
bleed because of vulnerability. The child was playing near
the under construction building and she might have come in
contact with the under construction materials. For the reason
of the accused cleaned the bleeding of the child, dhoti might
have stained with blood and it gave rise to the suspicion in
the mind of PWs.6 and 9 and alarmed the mother that the
child was subjected to sexual assault by the accused. The
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Trial Court has rightly observed that the alleged sexual
assault was not established beyond reasonable doubt.
Medical evidence probablises the defence. Trial Court has
rightly extended the benefit of doubt. We do not find any
illegality or irregularity in the impugned judgment. We are
persuaded to hold that, the appeal is devoid of merits, in the
result, the following:
ORDER
Appeal is dismissed.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
CLK
