Karnataka High Court
The State Of Karnataka vs Nawaz on 9 September, 2024
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 1004 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 1004 OF 2023
BETWEEN:
THE STATE OF KARNATAKA
BY PUNJALAKATTE POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001.
...APPELLANT
(BY SRI.VIJAYAKUMAR MAJAGE - SPP-II)
Digitally AND:
signed by
SUMATHY 1. NAWAZ
KANNAN S/O HANZ
Location: AGED 21 YEARS
High Court R/AT KALLAGUDDE MANE
of Karnataka
BANGERUKATTE
MACHINA VILLAGE
BELTHANGADY TALUK-574214
AADHAR CARD ADDRESS:
ARAMANEGUDDE MANE
BALLAMANJA
MACHINA VILLAGE
BELTHANGADY TALUK-574214.
2. SMT GUNAVATHI
W/O RAMESH ACHARYA
R/AT KARPADI HOUSE
KUKTHILA VILLAGE
BELTHANGADY TALUK
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CRL.A No. 1004 of 2023
D K DISTRICT
MANGALURU 574214.
...RESPONDENTS
(BY SRI. HAREESH BHANDARY T - ADVOCATE FOR
RESPONDENT NO.1; RESPONDENT NO.2 SERVED AND
UNREPRESENTED)
THIS CRL.A FILED UNDER SECTION 378(1) AND (3)
CR.PC PRAYING TO: a) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 15.11.2022 PASSED IN
SPL.CASE NO.193/2021 ON THE FILE OF THE COURT OF
ADDL.DISTRICT AND SESSIONS JUDGE/FTSC-II (POCSO), D.K.
MANGALURU, THEREBY ACQUITTING THE ACCUSED/
RESPONDENTS OF THE OFFENCE PUNISHABLE UNDER
SECTION 6 OF POCSO ACT AND SEC.376 AND 506 OF IPC;
b) SET ASIDE THE AFORESAID JUDGMENT AND ORDER DATED
15.11.2022 PASSED IN SPL.CASE NO.193/2021 ON THE FILE
OF THE COURT OF ADDL.DISTRICT AND SESSIONS JUDGE /
FTSC-II (POCSO), D.K., MANGALURU THEREBY ACQUITTING
THE ACCUSED/RESPONDENTS OF THE OFFENCE PUNISHABLE
UNDER SECTION 6 OF POCSO ACT AND SEC.376 AND 506 OF
IPC BY ALLOWING THIS CRIMINAL APPEAL; AND c) CONVICT
AND SENTENCE THE RESPONDENTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 6 OF POCSO ACT AND
SEC.376 AND 506 OF IPC.
THIS CRL.A., COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 1004 of 2023
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
AND
HON'BLE MR JUSTICE S RACHAIAH
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)
This appeal is filed by the State challenging the
acquittal judgment dated 15.11.2022 rendered by the
Court of the Additional District and Sessions Judge / FTSC-
II (POCSO), D.K., Mangaluru, in Special Case
No.193/2021, acquitting the accused / Respondent No.1 of
offences punishable under Section 6 of the POCSO and
Sections 376 and 506 of IPC and thereby praying to
convict him for the aforesaid offences.
2. The brief facts of the case are as under:
It is the case of the prosecution that the Accused
befriended the victim / CW-1 while she was in her 10th
Standard and both of them started speaking over phone
frequently. It is stated that on 14.02.2021 at about 4:00
P.M. when the victim was alone in her house situated at
Karpadi House, Puthila Village, the Accused went to the
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house of the victim on his motor cycle bearing No.KA-19-
V-1484 and sexually assaulted the victim in the bed room,
though the victim resisted his act. It is further stated that
the victim was threatened that her mother and younger
brother could be eliminated if she revealed the act to
anyone. Again on 26.09.2021 at about 1.30 P.M., it is
stated that the accused again visited the victim and again
sexually assaulted her. Based on the complaint lodged by
the victim, a case came to be registered against the
accused under Sections 506 and 376 (2) IPC besides
Section 6 of POCSO Act in Crime No.66/2021 of
Punjalakatte Police Station.
3. Subsequent to registration of the crime by the
Investigating Agency, the Investigating Officer took up the
case for investigation and conducted thorough
investigation and during investigation, he recorded the
statements of witnesses and also secured information by
conducting mahazar at Exhibit P2 in the presence of PW-1
and PW-6. Exhibit P9 is the CD spot mahazar and Exhibit
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P11 is the Medical report of the victim. Exhibit P13 is
another mahazar conducted by the I.O in the presence of
panch witnesses. Exhibit P18 is the Medical Report of the
accused. Exhibit P19 is the School Certificate of the victim
girl. These are the documents which have been facilitated
and secured by the I.O. during the course of investigation
and laid a charge-sheet against the accused before the
Committal Court. The case was committed to the Special
Court for trial for offences against the accused persons.
Subsequently, the Trial Court heard the arguments of the
learned Public Prosecutor for the State and the defence
Counsel for the accused and charges were framed. The
charges were read over to the accused in a language
known to him and the accused did not plead guilty but
claimed to be tried. Plea of the accused was recorded
separately. Subsequent to framing of charge against the
accused in order to prove the case, the prosecution in all
examined PW-1 to PW-11 and got marked several
documents as per Exhibit P1 to P27 and also material
objects were got marked as MO-1 to MO-6 and closed the
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case of the prosecution. Exhibit D1 being the 'B' extract
was marked on behalf of the defence. Subsequent to
closure of the evidence on the part of the prosecution, the
accused was examined as required under Section 313
Cr.P.C. for enabling him to answer the incriminating
evidence appearing against him wherein the accused had
declined the incriminating evidence. The same was
recorded separately. Subsequently, the accused was
called upon to enter into defence evidence if any under the
relevant provisions of the Cr.P.C. But the accused did not
enter into defence evidence. Accordingly, it was recorded.
Subsequently, heard the arguments advanced by the
learned Public Prosecutor for the State and the Defence
counsel for the accused. After closure of evidence the
Court of the Additional District and Sessions Judge / FTSC-
II (POCSO), Dakshina Kannada, Mangaluru in Special Case
No.193/2021 vide Judgment dated 15.11.2022, acquitted
the Accused for the above said offences. It is the said
judgment of Acquittal which is under challenge in this
appeal by the State, urging various grounds.
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4. Heard Shri Vijayakumar Majage, learned SPP-II for
the appellant / State as well as the learned counsel Shri
Hareesh Bhandary T for Respondent No.1 / accused and
perused the evidence as well as the material available on
record.
5. Shri Vijayakumar Majage, learned SPP-II for the
State contends that the impugned Judgment and Order
passed by the Trial Court is illegal, invalid and contrary to
the evidence and material on record and hence, the same
is liable to be set-aside. He further contends that the Trial
Court has failed to appreciate the material evidence
adduced by the prosecution to establish the guilt of the
accused. The non-appreciation of the evidence and
material on record in a proper perspective has resulted in
a miscarriage of justice.
6. It is his contention that though there is material
evidence of the fact that the accused has sexually
assaulted the Victim / PW-1, a minor girl aged about 17
years, the Trial Court without considering the same has
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acquitted the accused. PW-1 who is the victim has
specifically stated in her evidence that the accused has on
several occasions sexually assaulted her, against her
wishes. In spite of the same, her evidence has been
disbelieved by the Trial Court solely on the ground that
there were certain improvements in her evidence when
compared with the complaint filed by her at Ex.P1, in the
164 Statement at Ex.P10 and history given as per Ex.P11
that is the medical report of the victim.
7. Though the prosecution witnesses have supported
the case of the prosecution, solely on the ground that
there were improvements in the evidence of PW-1, the
Trial Court has disbelieved the evidence of PW-1 the
victim, PW-2 the mother of the victim and PW-3 the
younger brother of the victim and hence, it is contended
that the acquittal order passed by the Trial Court requires
to be set-aside.
8. Further, PW-5 is the Doctor who has examined the
victim and who has recorded the history given by the
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victim. The Report given by PW-5 is marked as Ex.P11.
The said Report reflects that hymen was absent and PW-5
in her evidence has deposed that the victim was subjected
to sexual intercourse.
9. It is contended that the prosecution based on both
oral and documentary evidence, had proved that the
accused has sexually assaulted the victim whereas, the
Trial Court barely on the ground that there were certain
improvements in the evidence of PW-1, has proceeded to
wrongly acquit the accused without taking into
consideration the heinous act committed by the accused.
Thus, learned SPP-II prays that the Judgment and Order
of Acquittal passed by the Trial Court be set-aside the
appellant / accused be convicted for the offences
punishable under Sections 376 and 506 of IPC and Section
6 of POCSO Act.
10. Per contra, learned counsel Shri Hareesh
Bhandary T appearing for Respondent No.1 / accused
contends that the Trial Court on a proper appreciation of
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the facts and the evidence on record both oral and
documentary, has arrived at a just and reasonable
conclusion of acquitting the accused and hence, the
judgment of acquittal rendered by the Trial Court, needs
no interference in this appeal preferred by the State.
Thus, he prays to dismiss the appeal as being without any
merit.
11. In the context of the contentions made by the
learned SPP-2 for the appellant / State and the learned
counsel for the first respondent / accused, it is relevant to
state that the victim is none other than the daughter of
PW-2 / Gunavathi and based upon her complaint at Exhibit
P1 dated 27.09.2021, criminal law was set into motion.
The allegation was that the accused had committed rape
on the victim twice, i.e. on 14.02.2021 and on 26.09.2021
when the victim was alone present in her house. The
Woman Sub-Inspector of Punjalakatte P.S. PW-9/ Smt.
Sowmya had registered the crime against the accused by
recording FIR as per Exhibit P-20 and subjected PW-1 /
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victim for medical examination at Lady Goschen Hospital
on the said day. PW-5 / Dr. Lekha from the Lady Goschen
Hospital at Mangaluru City, had subjected the victim to
medical examination. But the evidence of PW-5 is not
corroborated with the evidence of PW-1 / victim and also
with the averments made in Exhibit P1 of the complaint as
per PW-2 / Smt. Gunavathi.
12. Exhibit P11 is the Medical report issued by the
Doctor wherein the opinion has been given that the hymen
of the victim was found absent and there is evidence
suggestive of sexual intercourse. PW-11 / Shri Shiva
Kumar B, who is the Police Inspector has deposed the
manner in which he had gathered the evidence as an I.O.
and filed charge-sheet against the accused before the
court having jurisdiction to deal the matter.
13. Ex.P2 is the mahazar and Ex.P17 is the sketch
said to have been drawn by the Investigating Officer at the
time of the spot mahazar conducted with the assistance of
the victim and in the presence of the witness PW.6 / Sri.
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Vasanth Poojary so also the victim's mother. In the
evidence, himself, the victim & her mother PW.2 had
asserted their presence at the time when the mahazar was
conducted by the investigation officer at the spot. The
learned defence counsel had also cross- examined PW.1,
2, 6 and the investigating officer at length to strengthen
his contention whether Exhibits P2 & P17 were created by
PW.11 / Shiva Kumar B in his office. However, the
existence of the house where the incident allegedly took
place and its topographical condition as described is not at
all disputed. More over, the photographs marked at Ex.P3
to 8 proves the presence of PW.11 at the spot to conduct
the mahazar and seizure of victim's cloths marked at
M.O.1 to 3 allegedly worn by her at the time of an
incident.
14. The victim has stated that about 3 months prior
to the lodging of the complaint dated 27.9.2021, the
accused came in his motor cycle bearing No.KA-19-V-1484
and raped her under the threat of killing her family
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members in the event she disclosed the incident to
anybody & again on 26.9.2021 at about 1.30 p.m, he had
raped inside her house for the second time. Thus
according to the victim, the first incident took place almost
in the month of June 2021 but not on 14.2.2021, which
contradicts the recitals of her complaint so also the police
charge sheet.
15. Further, it is to be noticed that PW.5 / Dr.Lekha
has examined the victim on 27.9.2021 at the instance of
the police. This witness has deposed before the Trial Court
about the information of the alleged incident and its
background given by the victim and has given the Medical
Report of the victim girl as per Ex.P11. It is stated in the
report that about 3 years ago when the victim girl was
studying in 10th standard at Ballamanja school, she met
one Nawaz, who is now 20 years, residing at
Bangerakatte, Mestri by occupation, who had come to
school for Kabbadi match. He had sent his phone number
through his brother Naufal who was in the same school.
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Naufal had threatened the victim girl to call Nawaz, else he
will tell everyone. So victim called Nawaz, who had
messaged her that he proposed to marry her. The victim
has stated that Nawaz would meet her after school hours,
hug her, kiss her and give her chocolates. He would often
pressurize her for sexual intercourse saying it was
common. On February 14th 2021 Valentine's day he had
called her at 4 p.m. and on confirming that no one was
present at her home, he came to her house and
threatened to kill her mother & brother if she did not
consent and had forcible sexual intercourse with her in her
brother's room. He would often call her to an abandoned
house in the neighborhood during afternoon and evening
time and have sexual intercourse with her in the bathroom
floor. This happened about 4-5 times. On 26.9.2021 at
1.30 p.m he called her to a hill nearby and had intercourse
with her behind the trees on the ground. She had stated
that Nawaz threatened to kill her if she told about the
same to anyone. However, the victim girl told this to her
mother in the evening and then lodged the complaint.
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16. In view of the said statement of the victim given
to PW-5 / Dr. Lekha, it is revealed that the victim is
untrustworthy for the reason that the above story is
entirely different from the prosecution theory which
reveals the rape having been committed twice inside the
victim's house. Hence, though the accused had raped the
victim girl multiple times in various places, her complaint
at Exhibit P1 mentioned that she was raped only twice.
Hence, the question arises as to the very genuineness of
the rape committed on the victim itself. Further according
to PW.2, the victim has informed her about the alleged
rape dated 26.9.2021 only and she did not have the
knowledge of the incident that took place on 14.2.2021.
The multiple versions of the victim and the evidence of
PW.2 is a piece of proof which renders the evidence of
PW.3 also to be baseless. The aforesaid discussion
demonstrates the incurable contradictions &
inconsistencies as to the truth of rape. Therefore, the
evidence of the victim, her mother PW.2 and the relative
PW.3 does not assume any weightage to substantiate the
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prosecution theory nor inspires the court to believe the
occurrence of the incident.
17. Further, as per the recitals of the complaint and
charge sheet, the accused came on his motor cycle
bearing No.KA-19-V-1484 to the house of the victim and
raped her. But the evidence on record, particularly the 'B'
extract got marked vide Ex.D1 by way of confrontation
during the evidence of the Investigating Officer, discloses
that the said vehicle belongs to one Babu S/o Shivappa of
a different village. The prosecution case is thus further
damaged.
18. PW.11 / I.O. claimed to have seized the clothes
of the victim marked at M.O.1 to 3 under the mahazar at
Ex.P2 in the presence of PW.6 / Sri. Vasanth Poojary and
the clothes of the accused at M.O.4 to 6 under the
mahazar at Ex.P12 in the presence of the witness PW.6 /
Sri. Pramod and others. Though the learned counsel has
denied the seizure but the same is evidenced by the
photographs marked at Ex.P14. The head constable PW.10
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/ Sri. Vijay Kumar Rai asserts that he took the
photographs and prepared the draft of mahazars as per
the dictation of the Investigating Officer. But the related
FSL report marked at Ex.P27 with the opinion that no
blood and seminal stains were detected, is against the
prosecution. Further, it does not corroborate with the
provisional opinion of PW.5 / Dr.Lekha with regard to the
possibility of the sexual intercourse.
19. The uncertainity and unbelievable versions of the
victim arising from the above discussion probablises the
defence of the accused that, he is an innocent and has
been falsely implicated in the case at the instance of some
activists belonging to Hindu organizations only on the
ground that he is a Mohammedan by religion. In spite of
the undisputed evidence adduced by PW.7 / Dr.
Rashmi.K.S from the Lady Goschen Hospital and the
medical certificate issued by her vide Ex.P18 to the effect
that the accused is capable of performing sexual
intercourse, but in the absence of convincing evidence, his
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capability as such alone is not a ground to accept the
theory put forth by the prosecution.
20. In the totality of circumstances, the allegations
made by the victim in the complaint and the statement
under Sec. 164 Cr.P.C. vide Ex.P10 so also the related
evidence on record, is doubtful which does not support the
charge sheet allegations. Under the said circumstances,
the provisional opinion of PW.5 in the report at Ex.P11
relating to the absence of the hymen and possibility of
sexual intercourse, cannot be connected to the accused in
any manner. Thus the benefit of doubt has to be extended
in favour of the accused.
21. In the case on hand, it is relevant to refer
Section 378 of Cr.P.C. - Appeal in case of acquittal. It is
open to the High Court to re-appraise the evidence and
conclusions drawn by the trial court but only in a case
when the judgment of trial court is stated to be perverse.
The word 'perverse' to mean 'against the weight of
evidence'. The said issue was addressed by the Hon'ble
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Apex Court in the case of Gamini Bala Koteswara v.
State of Andhra Pradesh (AIR 2010 SC 589). Further,
when two views are possible, appellate Court should not
reverse the Judgment of acquittal merely because the
other view was possible. When Judgment of trial Court
was neither perverse, nor suffered from any legal infirmity
or non consideration / misappropriation of evidence on
record, reversal thereof by High Court was not justified.
The said issue was addressed in the case of K.Prakashan
v. P.K.Surenderan (2008) 1 SCC 258. It is also
relevant to refer the case in T.Subramanian v. State of
Tamil Nadu (2006) 1 SCC 401 wherein it is observed
that where two views are reasonably possible from the
very same evidence, prosecution cannot be said to have
proved its case beyond reasonable doubt.
22. In an appeal against the acquittal, the appellate
court has the undoubted power to review the entire
evidence and to come to its own conclusion, but, in doing
so, it should not only consider every matter on record
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having a bearing on the question of fact and the reasons
given by the Trial Court in support of its order of acquittal
but also should express the reasons in its judgment which
let it to hold that the acquittal was not justified. The said
issue was addressed by the Hon'ble Supreme Court in the
case of State of Maharashtra v. Joseph Mingel Koli
(1997) 2 Crimes 228 (Bom).
23. In the instant case, it is necessary to state that
though the prosecution has examined in all PW-1 to PW-11
and several documents have been got marked on their
part to prove the guilt against the accused, but as per
Section 134 of the Indian Evidence Act, 1872, no
particular number of witnesses shall in any case be
required for the proof of any fact. Criminal prosecution is
launched against the accused and criminal law is set into
motion by recording an FIR on receipt of a complaint
under Section 154 of the Cr.P.C. Subsequent to
registration of the crime, it is the domain vested with the
Investigating Authority to take up the case for
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investigation under Section 173(2) Cr.P.C. and to
investigate the case thoroughly and lay a charge-sheet
against the accused. Subsequent to laying of the charge-
sheet, the domain is vested with the Trial Court to proceed
in accordance with the relevant provisions of the Cr.P.C.
and so also the relevant provisions of the Indian Evidence
Act, 1872. But keeping in view Section 134 of the Indian
Evidence Act, it is well-known principle of law that reliance
can be based upon even solitary statement of witness if
the Court comes to the conclusion that the said statement
is the true and correct version of the case of the
prosecution. This was extensively addressed by the
Hon'ble Supreme Court in the case of Raja v. State
(1997) 2 Crimes 175 (Del). Insofar as Section 134 of
the Indian Evidence Act, it is the quality of evidence and
not the quantity of the evidence which is required to be
judged by the Court to place credence on the statement as
referred in the decision of Hon'ble Apex Court reported in
State of Uttar Pradesh v. Kishanpal, 2008 (8) JT 650.
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24. In respect of plurality of witnesses, in the matter
of appreciation of the evidence of witnesses, it is not the
number of witnesses, but quality of their evidence which is
important, as there is no requirement in law of evidence
that any particular number of witnesses are to be
examined to prove/disprove a fact. The domain is vested
with the Trial Court to appreciate the evidence under
Section 3 of the Indian Evidence Act, 1872. The evidence
must be weighed and not counted. The test is whether
the evidence has a ring of trust, is cogent, credible and
trustworthy or otherwise. The legal system has laid
emphasis on value provided by each witness, rather than
the multiplicity or plurality of witnesses. It is quality and
not quantity, which determines the adequacy of evidence
as has been provided by Section 134 of the Evidence Act.
In this regard, it is relevant to refer to the reliance of AIR
2013 SC 1204 in the case of Laxmibai (Dead) through
LRs vs. Bhagwantbura (Dead) through LRs.. Further,
the law of evidence does not require any particular
number of witnesses to be examined in proof of a given
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fact. However, faced with the testimony of a single
witness, the court may classify the oral testimony of a
single witness, into three categories, namely,
i) wholly reliable,
ii) wholly unreliable and
iii) neither wholly reliable nor wholly unreliable.
25. In the first two categories, there may be no
difficulty in accepting or discarding the testimony of the
single witness. The difficulty arises in the third category of
cases. The Court has to be circumspect and has to look
for corroboration in material particulars by reliable
testimony, direct or circumstantial, before acting upon
testimony of a single witness. It is relevant to refer to the
reliance of AIR 2003 SC 854 in the case of Lallu Manjhi
v. State of Jharkhand.
26. However, Section 3 of the Indian Evidence Act,
1872 as regards the concept of proving a fact, states that,
'a fact is said to be proved when, after considering the
matters before it, the Court either believes it to exist, or
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considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists.'
27. Further, Section 3 of the Indian Evidence Act,
1872 as regards the concept of disproving a fact, states
that, 'a fact is said to be disproved when, after considering
the matters before it, the Court either believes that it does
not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it does
not exist. This domain of appreciation is vested with the
trial court for arrival of right conclusion. But, keeping in
view Section 3 of the Indian Evidence Act, the domain is
vested with the prosecution as well as the defence also,
but the theory requires corroboration.
28. But in the instant case though the prosecution
has subjected to examination several witnesses as PW-1
to PW-11 and also got marked several documents as
Exhibits P1 to P27 inclusive of M.O.1 to 6, but at a cursory
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glance of the evidence of PW1 to PW-3 and PW-5 / Doctor
there appears to be inconsistency and clouds of doubt in
the evidence of the prosecution, which has been rightly
pointed out by the Trial Court while acquitting the accused
for the alleged offences. Hence, we find justification of the
judgment of acquittal rendered by the Trial Court. Hence,
in totality of the case of the prosecution and even on close
scrutiny of the evidence, also keeping in view the
contentious contentions of the learned counsel for the
accused and the learned SPP for the State, it is opined
that the prosecution has miserably failed to prove the guilt
of the accused beyond all reasonable doubt by facilitating
worthwhile evidence. But in the criminal justice delivery
system, it is the domain vested with the prosecution to
prove the guilt of the accused by facilitating positive,
cogent and corroborative evidence to probabalise that
accused had committed the alleged offences against the
victim. When the doubt arises in the evidence of
prosecution, the benefit of doubt always accrues in favour
of the accused alone. Hence, we are of the opinion that
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the Trial Court has rightly acquitted the accused, which
judgment needs no interference. Therefore, in terms of
the aforesaid reasons and findings, we proceed to pass the
following:
ORDER
i) The appeal preferred by the appellant / State
under Section 378(1) and (3) of the Cr.P.C., is hereby
rejected.
ii) Consequent upon rejection of the appeal, the
judgment of acquittal rendered by the Trial Court in
Spl.C.No.293/2021 dated 15.11.2022 acquitting the
accused / Respondent No.1, for the offences under
Sections 376 & 506 IPC besides Section 6 of the POCSO
Act, is hereby confirmed.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(S RACHAIAH)
JUDGE
KS
