Karnataka High Court

The State By The vs Baptist Fernandis on 7 February, 2025

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                                                          CRL.A No. 942 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 7TH DAY OF FEBRUARY, 2025

                                              BEFORE

                               THE HON'BLE MR JUSTICE RAJESH RAI K

                               CRIMINAL APPEAL NO. 942 OF 2020 (A)

                      BETWEEN:

                          THE STATE BY THE
                          SUB-INSPECTOR OF POLICE
                          BALLARE POLICE STATION,
                          SULLIA TALUK, D.K. DISTRICT,
                          REPRESENTED BY STATE,
                          PUBLIC PROSECUTOR,
                          HIGH COURT BUILDING,
                          BENGALURU-560 001.
                                                                    ...APPELLANT
                      (BY SRI. RAHUL RAI.K, HCGP)

                      AND:

                          BAPTIST FERNANDIS
Digitally signed by
                          S/O LATE LOUIS FERNANDIS
MAYAGAIAH                 AGED ABOUT 51 YEARS,
VINUTHA                   R/O BATARA HOUSE,
Location: HIGH
COURT OF                  KOTHKUNJA VILLAGE,
KARNATAKA                 SULLIA TALUK
                          D.K. DISTRICT-574 239.
                                                                  ...RESPONDENT
                      (BY SRI. ABHISHEK SHETTY, ADVOCATE FOR
                          SRI. DHANANJAY KUMAR, ADVOCATE)

                           THIS CRL.A IS FILED U/S.378(1)(3) OF CR.P.C PRAYING
                      TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
                      ORDER OF ACQUITTAL DATED 23.01.2020 PASSED BY THE
                      ACQUITTAL DATED 23.01.2020 PASSED BY THE COURT OF THE
                      V ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
                      SPL.JUDGE D.K., MANGALURU SITTING AT PUTTUR, D.K. IN
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                                                     NC: 2025:KHC:5558
                                                 CRL.A No. 942 of 2020




SPL.CASE NO.11/2018 IN ACQUITTING THE RESPONDENT-
ACCUSED FOR THE OFFENCE P/U/S 377 R/W 511 OF IPC AND
SECTION 8 OF POCSO ACT.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE RAJESH RAI K

                        ORAL JUDGMENT

Though this matter posted for admission, at the consent

of the learned High Court Government Pleader for the

appellant-State and the learned counsel for the respondent,

this matter is taken up for hearing.

2. Learned HCGP has placed all the evidence and

documents placed by the prosecution before the Trial Court.

3. The State has preferred this appeal against the

judgment of acquittal passed in S.C.No.11/2018 dated

23.01.2020 by the V Additional District and Sessions Judge and

Special Judge, D.K., Mangaluru, sitting at Puttur, (hereinafter

referred to as 'the Special Judge'), whereby the learned Special

Judge has acquitted the respondent/accused for the offences

punishable under Section 377 r/w Section 511 of IPC and

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Section 8 of the Protection of Children from Sexual Offences

Act, 2012 (hereinafter referred to as the 'POCSO Act').

4. The brief facts of the prosecution case are that: the

respondent/accused was a civil contractor. The complainant

i.e., PW.1 approached the accused for a job in the year 2017

and was promised accommodation. The accused called the

complainant to meet him on 08.03.2017 at Kaniyoor Pete and

took him in his car bearing registration No.KA.21-P-2537

towards the railway over bridge, Kaniyoor Village, Puttur Taluk

and forced him to consume alcohol by mixing it with water, and

thereafter, he touched private parts of the complainant-PW.1

and alleging sexual harassment. Hence, PW.1 lodged a

complaint before the respondent-police against the accused on

08.03.2017 as per Ex.P1. On the strength of Ex.P1, the

respondent-Police registered the case against the accused for

the offences punishable under Section 377 r/w Section 511 of

IPC and Section 8 of the POCSO Act.

5. Subsequently, the Investigating Officer, i.e., PW.9

investigated the case, conducted the relevant mahazars,

recorded the statement of all the witnesses, and laid charge

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sheet before the Special Court against the accused for the

aforementioned offences.

6. The learned Special Court on securing the presence of

the accused, framed the charges against the accused for the

offences punishable under Section 377 r/w Section 511 of IPC

and Section 8 of the POCSO Act. The charges were denied by

the accused, and he claimed to be tried.

7. In order to prove the charges levelled against the

accused before the Special Court, the prosecution in total

examined 9 witnesses i.e. PW.1 to PW.9 and marked 8

documents as per Exs.P1 to Ex.P8.

8. On assessment of oral and documentary evidence,

the learned Special Judge acquitted the accused for the charges

levelled against him. The said judgment is challenged under

this appeal by the appellant/State.

9. I have heard Sri. Rahul Rai K, the learned HCGP for

the appellant and Sri. Abhishek Shetty, the learned counsel for

Sri. Dhananjay Kumar, the learned counsel for the respondent-

State.

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10. The primary contention of the learned HCGP for the

appellant-State is that the judgment under this appeal suffers

from the perversity and illegality since the learned Sessions

Judge has acquitted the accused without appreciating the

evidence available on record in right perspective. He contended

that PW.1-victim and PW.3-eyewitness to the incident have

categorically supported the case of the prosecution, their

evidence unambiguously corroborates with the testimony of

PW.6. Further, the prosecution also placed the evidence of

PW.7-Principal, who issued the age certificate of the victim as

per Ex.P6. This clearly establishes that PW.1-victim was a

minor at the time of the incident. In such circumstances, the

prosecution has proved the offences under Section 377 of IPC

and Section 8 of the POCSO Act. Accordingly, he prays to allow

the appeal by setting-aside the impugned judgment passed by

the Special Judge and also prays to convict the accused for the

charges levelled against him.

11. Per contra, the learned counsel for the respondent

contended that the learned Special Judge on meticulously

examining the collective evidence on record at length, passed a

well-reasoned judgment, which does not call for any

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interference by this Court. He further contended that the

evidence of PW.1 and PW.3-eyewitnesses to the alleged

incident is contradicting and suffers from severe infirmities.

Also they have failed to prove the age of the victim, that he

was a minor at the time of the incident, while placing the

authenticated documents. On perusal of the evidence of PW.1,

the same does not corroborate with Ex.P1-the complaint lodged

by PW.1. Further, PW.2 bore ill-will against the accused, and as

such, PW.2 falsely implicated the accused in the purported

crime. All these aspects were duly examined profoundly by the

learned Special Judge and the impugned judgment was passed.

Accordingly, he prays to dismiss the appeal.

12. Having heard the learned counsel for both the parties

and on perusing the entire evidence and records placed by the

learned HCGP, the sole point that surface for my consideration

is:

"Whether the learned Special Judge is justified in acquitting the accused for the offences punishable under Sections 377 and 511 of IPC and Section 8 of the POCSO Act and if any interference is required by this Court?"

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13. To prove the charges levelled against the accused,

albeit the prosecution has examined 9 witnesses in this case,

however, the prosecution has predominantly relied on the

evidence of PW.1 to PW.3, PW.6 and PW.7. Among these

witnesses, PW.1-complainant, has deposed that on the date of

the incident, the accused, under the pretext of providing him

accommodation called him to Kaniyoor Pete and there he forced

PW.1 to consume alcohol, thereafter, he touched his private

parts and sexually harassed him. Further, he also alleged that

on previous occasions the accused on being physically

exhausted stepped out of his car.

14. On perusal of cross-examination of this witness,

after the incident, he failed to bring this to the knowledge of his

parents and close aides. Further, he also admitted that PW.2,

one Prajwal-brother of PW.1 who was an active member of

Hindu Jagarana Vedike bore ill-will against the accused

regarding the building contract business. Further, PW.2 is the

close associate of PW.1. PW.1 further admitted that though the

Police Station was situated 8 kilometres away from the alleged

spot of incident, he has failed to lodge complaint immediately

after the incident. Further, the evidence of PW.6 clearly

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establishes that, he smelt traces of alcohol on examination of

PW.1. Further, the doctor has not given any opinion regarding

the alleged attempt of sexual assault by the accused. Further,

though the prosecution has relied on the evidence of PW.2-

hearsay witness to the incident. According to him, PW.1 has

informed the same soon after the incident. Thereafter, to

ensnare the accused, they both gave a missed call to the

mobile of the accused. However, there are no such call records

forthcoming in the charge sheet. Per contra, PW.3 one more

eyewitness to the incident has stated that himself and PW.2

have seen the incident and thereafter, PW.1 lodged the

complaint. The evidence of PW.2 and PW.3 are clearly

contradicting. As such, on careful perusal of the evidence of

PW.1 to PW.3, there arises a clear doubt in respect of the

incident said to have been committed by the accused.

15. In order to prove the age of PW.1, the prosecution

has relied on Ex.P6-School certificate issued by PW.7-Principal.

On perusal of evidence of PW.7, he has stated that he has

mistakenly mentioned the class of the PW.1 as I PUC instead of

II PUC. Nevertheless, PW.7 has failed to place any such

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credible document, including the register maintained by him, to

prove the date of admission or date of birth of PW.1.

16. In such circumstance, The Division Bench of this

Court in Criminal Appeal No.200109/2014 dated 05.11.2024

held regarding determination of the age of the victim at

paragraphs No.40 and 41 as under:

"40. As regards the age of the victim, it is the settled position of law that the same test of juvenility vis-a-vis an accused who seeks benefit of being a juvenile would be sufficient test to determine age of the victim. The Apex Court in Jarnail Singh v. State of Haryana, [(2013) 7 SCC 263] at para 23 has observed as follows:

"23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is

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expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion."

41. Under Rule 12 of Juvenile Justice Rules, the documents that could be relied for the determination of the age are as follows:

"12. Procedure to be followed in determination of Age.--

Xxx

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by

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the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;"

17. On perusal of the above judgment passed by the

Division Bench of this Court, it is relatively clear that as per

Rule 12 of the Juvenile Justice Rules, in order to prove the age

of the child or juvenile, the procedure to be followed and the

documents to be relied by the prosecution are the matriculation

or equivalent certificates if available; and in the absence the

date of birth certificate from the school (other than a pay

school) first attended; and in the absence the birth certificate

given by a Corporation or a Municipal Authority or a Panchayat.

Hence, considering the above aspect, I am of the considered

view that, the prosecution also failed to prove that the victim

was a minor as on the date of incident.

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18. This being an appeal against acquittal, the Hon'ble

Apex Court in the case of H.R.Sundara And Others Vs. State

Of Karnataka reported in (2023) 9 SCC 581 summarized the

principles to exercise the power by the Appellate Court to

interfere in the order of the Sessions Court in paragraph No.9

as under:

"9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re- appreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken."

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19. Further, the Hon'ble Apex Court in the case of

Mallappa And Others v. State Of Karnataka reported in

(2024) 3 SCC 544 while summarizing the principles in dealing

with the appeal against acquittal in paragraph No.42 held as

under:

"42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play 9 AIR 1961 SC 715 while deciding an appeal from acquittal could be summarized as:

(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

20. Hence, on careful perusal of the above law laid

down by the Hon'ble Apex Court and the evidence placed by

the prosecution in the instant case, I am of the considered view

that the prosecution has failed to place sufficient evidence to

prove the charges leveled against the accused beyond

reasonable doubt.

21. In that view of the matter, I decline to interfere in

the judgment passed by the Sessions Court. Accordingly, I

proceed to pass the following: