Karnataka High Court
State Of Karnataka vs Shri. Rajappa @ Nagaraj S/O. Fakirappa ... on 13 February, 2025
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CRL.A No. 100521 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
CRIMINAL APPEAL NO. 100521 OF 2021 (A-)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE INSPECTOR OF
POLICE, MUNDARAGI POLICE STATION,
DIST. 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:
SHRI. RAJAPPA @ NAGARAJ S/O. FAKIRAPPA VEERAPUR
AGE. 22 YEARS, OCC. COOLIE WORK,
R/O. HALLIGUDI, TQ. MUNDARAGI,
DIST. GADAG-582115.
MOHANKUMAR
B SHELAR ...RESPONDENT
(BY SRI. SRINIVAS B. NAIK, ADV)
Digitally signed by THIS CRIMINAL APPEAL IS FILED U/SEC. 378 (1) AND (3) OF
MOHANKUMAR B CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
SHELAR
Date: 2025.03.01 JUDGMENT AND ORDER DATED 31.10.2019 PASSED BY THE ADDL.
11:05:01 +0530 DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, GADAG IN
SESSIONS CASE (POCSO) NO.16/2017 AND SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 31.10.2019 PASSED
BY THE ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL
JUDGE, GADAG IN SESSIONS CASE (POCSO) NO.16/2017 &
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SEC.376(2)(i) OF IPC AND UNDER SEC. 4 AND
8 POCSO ACT 2012.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 100521 of 2021
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CORAM: AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This appeal is filed by the State challenging the
judgment of acquittal dated 31.10.2019 passed in
S.C.No.16/2017 (POCSO) by the Additional District and
Sessions Judge, Gadag, for the offences punishable under
Section 376(2(I) of IPC and Sections 4 and 8 of the
Protection of Children from Sexual Offences Act, 2012.
2. The brief facts leading rise to filing of this
appeal are as follows:
On 27.12.2016, at about 4.30 p.m. when the
complainant was sitting near her house along with her
three children, the victim girl was crying, and at that time,
the accused came there, and took the victim girl on the
pretext of getting her a chocolate, went near the shop.
Though half an hour has passed, the accused did not bring
the child back. The complainant in search of the accused
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and the child, went near the shop, but the accused and the
child were not found. After sometime, she saw the victim
girl was sitting on the bicycle and the accused was moving
the bicycle. On enquiry with the accused as to why there
was a delay, the accused did not reply properly but was
stammering. Immediately, the complainant took the victim
girl inside the house. The victim was saying that 'awwa',
'ajja' and was crying. Thereafter, the complainant
enquired with the accused, as to what he has done. The
accused said that the victim fell down from the bicycle. At
that point on time, the accused was shivering. On looking
at the genital area of the victim, it was found that there is
redness, seminal stain which was dry in nature was also
found. The complainant asked the accused, as to what
happened, immediately, the accused ran away from the
spot. The sexual assault has been committed on the victim
girl and when the victim girl while passing urine, she
complained of severe pain. The complainant, her husband
and relatives took the victim girl to the Gadag District
Hospital for treatment. On the basis of the complaint
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lodged by the complainant, i.e., the mother of the victim
girl, the Mundaragi police station registered a case in
crime No.320/2016 for the offences punishable under
Section 376(2)(I) of IPC and Sections 4 and 8 of the
Protection of Children from Sexual Offences Act, 2012.
3. The police took up the investigation and filed
the charge sheet for the offences punishable under Section
376(2(I) of IPC and Sections 4 and 8 of the Protection of
Children from Sexual Offences Act, 2012. The charges
came to be framed by the learned Sessions Judge, and the
accused pleaded not guilty. The prosecution examined in
all 17 witnesses and marked 31 documents as Exs.P1 to
P31, and M.O's.1 to 7.
4. While recording the statement under Section
313 of Cr.P.C., the accused denied the charges leveled
against him. The Sessions Court after considering the
entire material on record, held that the accused has not
committed any offence as alleged by the prosecution, and
acquitted the accused vide judgment dated 31.10.2019.
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The State, aggrieved by the judgment of acquittal, has
filed this criminal appeal.
5. Heard the learned Additional SPP for the State
and learned counsel for the respondent/accused.
6. The learned Additional SPP submits that the
accused has committed sexual assault on the victim. The
victim is a minor girl, and the mother of the victim, i.e.,
P.W.1 has consistently deposed before the court regarding
the commission of the sexual assault on her daughter, i.e.,
the victim girl, who is aged about 2½ years. He submits
that the evidence of P.W.1 corroborates the evidence of
P.W.12-doctor, who examined the victim girl on
27.12.2016. He submits that P.W.12, who examined the
victim girl has opined that an attempt of sexual assault
cannot be ruled out. He submits that the reasons assigned
by the Sessions Court are contrary to the records, and the
Sessions Court ought to have taken into consideration the
evidence of P.Ws.1, 12 and 14. He submits that the
judgment of acquittal passed by the Sessions Court suffers
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from legal infirmities. Hence, on these grounds, he prays
to allow the appeal, and convict the accused for the
offences alleged against him.
7. Per contra, learned counsel for the
respondent/accused submits that the medical records are
against the prosecution. He submits that the husband of
the complainant, i.e., P.W.4 does not know anything about
the case, nor has he given any statement before the
police. He submits that the doctor has opined that the
signs of recent sexual intercourse cannot be commented
on. He submits that the FSL report does not disclose that,
no seminal stains were detected in the vulval swab and
anal swab. He submits that, it is nowhere stated by the
doctor that there was an earlier injury which has healed
recently. He submits that the case of the prosecution is
that the accused has brought back the victim girl on the
bicycle, but the said bicycle was not seized and produced
before the court. He submits that there are several
contradictions in the statement given by the complainant
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under Section 164 of Cr.P.C., before the learned
Magistrate, and the averments made in the complaint. He
submits that the Sessions Court was justified in acquitting
the accused and prays to dismiss the appeal.
8. Perused the records and considered the
submissions made by the learned counsel for the parties,
and also re-evaluated the entire evidence placed by the
prosecution to bring home the guilt of the accused.
9. The point that arise for our consideration is:
1) Whether the prosecution proves that the
judgment and order of acquittal passed by
the Sessions Court is perverse and
arbitrary?
10. The prosecution examined in all 17 witnesses.
P.W.1-Hanamava Pujar is the complainant. She deposed
that, victim is her daughter, who is aged 2½ years. On
27.12.2016, around 4.00 p.m., she and her daughter were
sitting in front of a shrine, near their house, when the
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accused came there, and took the victim girl on the
pretext of giving a chocolate to the victim girl. Even after
an hour, the accused did not bring her daughter. She
looked around here and there, at that time, the accused
brought the victim girl on his bicycle and handed over the
victim girl to her. At that time, the victim was not
conscious. P.W.1 took her daughter inside her house. The
accused was then sleeping on the wall of the temple. She
gave water to the victim girl and thereafter, she regained
the consciousness. Thereafter, she brought the victim girl
out of the house. On seeing the accused, the victim girl
was frightened, showed the accused and pointed out
towards her private part. P.W.1 enquired the accused as to
what he did to her daughter, as the victim girl was
pointing towards her private part. The accused said that
he has not done anything, but the victim girl fell down
from the bicycle, as such, she is pointing her finger
towards her private part. Then, immediately, he ran away
from the spot. She further deposed that, when her
husband came to the house, she informed him that his
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daughter was sexually assaulted by the accused. The
husband searched for the accused, he was found in the
field and brought to his house, and interrogated.
Thereafter, they took the victim girl to the District
Hospital, Gadag. She gave a statement before the police
and they have recorded her statement and then she
affixed her thumb impression. She deposed that the
accused took the victim to the paddy field and committed
the sexual assault on the victim.
11. During the cross-examination, it is elicited that,
she does not know the day of the week on which the
alleged incident has taken place. It is elicited that there
was a fight between the mother of the accused, and the
family members of P.W.1, and the relationship between
the complainant and the accused were not cordial. It is
elicited that the accused was working as a driver and he
comes home, once in a 15 days. Two days before the
incident, the accused came to the village and heard about
the fight between the complainant and his mother. It is
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elicited that there is a shop near the temple and gutter
situated near to her house. It was suggested to the
complainant that, on the date of lodging the complaint,
the accused was not in the village, she has denied the said
suggestion. She deposed that, while searching her
daughter, she did not ask any of the shopkeepers.
12. Basavaraj Devur was examined as P.W.2. He
deposed that the panchanama was done by the competent
police. One year back, the police came to the place where
he was working and took his signature. His signature is
marked as Ex.P3(a) and he does not know what is written
in Ex.P1, and why his photo was taken as per Ex.P2. This
witness was turned hostile. The prosecution has cross-
examined him, and nothing has been elicited from the
mouth of this witness.
13. Somashekharappa Channalli was examined as
P.W.3. He deposed that one year back, the police came to
the Bevoor's farm house and took his signature. His
signature is marked as Ex.P3(b). He also does not know
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what is written in Exs.P1 and P3. This witness also turned
hostile and the prosecution has cross-examined this
witness.
14. Prabhu Pujar was examined as P.W.4. He is the
husband of P.W.1. He deposed that, victim is his daughter,
and he did not give any statement before the police that
the accused took his daughter and committed sexual
assault on her. This witness also turned hostile.
15. Mallappa Pujar was examined as P.W.5. He
deposed that he does not know about this case, and he
has not given any statement before the police. This
witness also turned hostile.
16. Ramesh Durgappa Gundiker was examined as
P.W.6. He deposed that he has not given any statement
before the police. C.Ws.5 to 9 are known to him. He came
to know from his elder brother Honnappa that the victim
girl was subjected to sexual assault. Then his elder brother
asked him to give money to the Prabhu Pujar, and went to
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the District Hospital and gave money to C.W.4. This
witness also turned hostile.
17. Lakshmavva Bharamappa Neelappanavar was
examined as P.W.7, and this witness also turned hostile.
18. Siddavva Neelappa Neelappanavar was
examined as P.W.8. She deposed that, she knows C.W.2 is
acquainted with them, and they are from the same town.
She did not give any statement before the police, and the
police never interrogated her. She did not know anything
about the case. This witness was also turned hostile.
19. Imamsab Madarangi was examined as P.W.9.
He was working as a police constable. He deposed that
from 2012 to June 2017, he was working in the Mundaragi
police station. On 27.12.2016, MLC information was
received from the Gadag District Hospital, and at that
time, he accompanied the Police Inspector, Mundaragi to
the Gadag District Hospital, wherein P.W.1 stated that her
daughter was sexually assaulted, and he wrote the
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complaint in the District Hospital, as per the instructions of
P.W.1. He identified his signature as Ex.P10(a). After
recording the statement of the complainant, they went to
the police station and the Police Inspector has registered
the case in crime No.320/2016. He took up the original
complaint and the FIR as directed by the Police Inspector.
It was suggested to this witness that, a false case is
registered against the accused. The said suggestion was
denied by him.
20. S.M.Hadapad was examined as P.W.10. He was
working as a Police Constable. He deposed that, on
28.12.2016, as per the oral order of the Police Inspector,
Mundaragi, he has taken the accused to the Government
Hospital for medical examination. After completion of the
medical examination, CPI and the accused went to the
spot for inspection, and thereafter, they produced the
accused before the court. He submitted the report, which
is marked as Ex.P11, and his signature is marked as
Ex.P11(a). During the course of cross-examination, he was
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unable to state, what time he took the accused to the
Government Hospital, to the spot, and at what time he
produced the accused before the court.
21. Hanamavva Bharamappa Talawar was
examined as P.W.11. She deposed that, on 27.12.2016,
she was on duty at Gadag Mahila Police Station. As per the
order of the ASI, she took the victim girl and her mother
to the Gadag District Hospital for medical examination.
After the medical examination, the victim girl and her
mother were returned to the police station. On
29.12.2016, she escorted the victim girl and her mother to
the court to record the statement of the mother of the
victim girl under Section 164 of Cr.P.C. She submitted the
report to the PSI on 29.12.2016 about the work done in
this case. The said report is marked as Ex.P13 and her
signature is marked as Ex.P13(a). During the cross-
examination, she was unable to say the exact time when
the victim girl was taken to the hospital, and what time
they returned from the hospital. She did not know how
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long the victim girl and her mother were produced before
the learned Judge for recording the statement under
Section 164 of Cr.P.C., and she was not present in the
court while recording the statement.
22. Dr.Kirthihas H.B. was examined as P.W.14. He
deposed that, from 2016, he was working as a Medical
Officer in Mundaragi Taluka Hospital, Mundaragi. On
28.12.2016, he has received a requisition from the
Mundaragi P.S. for conducting the medical examination of
the accused for sexual offence. The accused present in the
court was produced before him on 28.12.2016 through
P.C.861 and P.C.367. He has noted the identification
marks of the accused. He has conducted the physical
examination of the accused and the genital examination as
well. During the course of medical examination, he has
collected the articles, such as, i) swabs from the surface of
glans of penis; ii) nail clippings from both hands; iii) pubic
hairs after combing; and iv) inner wear 1 brief. On
examination of the accused, he has given his opinion that
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there is nothing to suggest a sexual act. He prepared the
examination report of the accused, which is marked as
Ex.P20, and his signature is marked as Ex.P20(a). During
the course of cross-examination, it is elicited that, based
on the requisition from the police, we prepared the OPD
record and conducted the examination of the accused of
the sexual offence. He deposed that, he has not brought
the said records to the court. He admits that Ex.P20
contains the identification marks of the accused, but does
not bear the signature or thumb impression of the
accused. He admitted that police would have furnished
certain documents along with the requisition, and denied
that his report is incorrect. He denied that Ex.P20 was
prepared as per the instructions of the police.
23. Iranna Kubasad was examined as P.W.15. He
deposed that, as per the requisition made by the police, he
prepared the spot panchanama in crime No.320/2016, and
he has prepared two hand sketches, which are marked as
Exs.P21 and P22. He denied that the contents of Exs.P21
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and P22 are incorrect and the same were prepared on the
instructions of the police.
24. Manjula Basavaraj Sadariyavar was examined
as P.W.16. She deposed that from July 2016 to January
2017, she was working as PSI in Naregal Police Station.
On 27.12.2016, she was attending the Annual Police
Sports meet at Gadad, the D.S.P. of Naragund called her
and instructed her that she should go to Gadag District
Hospital and take the statement of the victim. Since the
victim girl was 2 years old, and was unable to answer, she
enquired with the mother of the victim girl, who is the
complainant. In the cross-examination, it was elicited that
D.S.P. has not given instructions in writing to her, when
she was attending the Annual Police Sports at Gadag. It is
stated that, in the station house diary of her police station,
daily we enter the things we do. However, on 27.02.2016,
she has not entered in the station house diary that she has
received the statement of the mother of the victim girl,
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except her signature as per Ex.P10(b). She has no other
record for receiving the statement of the complainant.
25. Manjunath V.Nadavinamani was examined as
P.W.17. He deposed that he was working as CPI of Ron
Police Station. From 10.08.2016 to 29.09.2018, he was
working as a Police Inspector in Mundaragi Police Station.
He deposed that on 27.12.2016 at 8.30 p.m., SHO called
him over the phone and stated that he had received a
phone call from Gadag Mahila Santwan Kendra. He
immediately informed his superiors about the incident.
Since there is no woman inspector in the police station, a
woman police inspector should be sent from another police
station. D.S.P. Naragund appointed a woman inspector of
Naragund police station and she was taken to the Gadag
District Hospital, and the PSI has recorded the statement
of P.W.1, i.e., the mother of the victim girl. After recording
the statement, he went to the Mudaragi Police Station, and
registered the criminal case in crime No.320/2016. The
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said complaint is marked as Ex.P10, and his signature is
marked as Ex.P10(a).
26. In the light of the contentions raised by the
State, it is necessary to examine the witnesses of the
prosecution.
27. P.W.1 is the mother of the victim girl. She is
not an eyewitness to any of the acts attributed by the
prosecution. Looking at her evidence, it is clearly a
hearsay evidence. The evidence of P.W.1 is not
corroborated with the evidence of the doctor, who
examined the victim girl. Further, the husband of the
complainant i.e., P.W.4 has not stated anything before the
court about the alleged incident. He also did not given any
statement before the police under Section 161 of Cr.P.C.
His evidence is quite opposite to the deposition of P.W.1.
The victim girl was taken to the hospital on 27.12.2016 at
9.00 p.m. and the complaint was filed on the same day.
From the perusal of the report submitted by P.W.12, it
discloses that the incident is said to have taken place
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between 4.00 to 4.30 p.m. The child was conscious,
orientated and playful. Emotional status is stable and
cooperative. From the perusal of the Ex.P17 FSL report, it
discloses that no seminal stains were detected in the
vulval swab and anal swab. However, the attempt of
sexual assault cannot be ruled out. The report specifically
does not state that there was a sexual assault on the
victim girl. As per the case of the prosecution itself, the
incident took place on 27.12.2016 and the same day, the
victim was examined. The medical evidence in the present
case establishes that the victim girl never had any sexual
assault or intercourse at all. This leads drawing a reversal
conclusion that the prosecution has failed to prove that the
accused has committed an offence punishable under
Section 376(2)(I) of IPC and Sections 4 and 8 of the
Protection of Children from Sexual Offences Act, 2012.
28. The only evidence available in the present case
is the series of testimonies of P.W.1, who is the mother of
the victim girl. As observed above, the father of the victim
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girl has not supported the case of the prosecution. A bare
reading of the evidence of P.W.1, it clearly establishes
that, it would not be trustworthy to convict the accused in
the present case on hand. The other witnesses have
turned hostile. There is no medical evidence on record to
support the theory of the prosecution that the victim was
subjected to sexual assault by the accused.
29. On proper analysis of the evidence of the
prosecution witnesses and the medical evidence brought
on record by the prosecution, it is not sufficient to draw a
presumption under Section 29 of the POCSO Act. It has
come in the evidence of P.W.1 that there was a quarrel
between P.W.1 and the mother of the accused, which lead
to the complainant to lodge a criminal case against the
accused. On careful scrutiny and analysis of the material
evidence on record, it clearly demonstrates that the
present case is a false implication. There is no material on
record indicating the alleged sexual assault committed by
the accused. In the absence of the material on record that
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the alleged offence has been committed on the victim girl
cannot be sustained.
30. It is relevant to refer the judgment of the
Hon'ble Apex Court rendered in the case of Sharad
Birdhichand Sarda vs. Staste of Maharashtra reported
in (1984) 4 SCC 116 wherein at paragraph 163, it is held
as under:
"164. We then pass on to another important
point which seems to have been completely
missed by the High Court. It is well settled that
where on the evidence two possibilities are
available or open, one which goes in favour of the
prosecution and the other which benefits an
accused, the accused undoubtedly entitled to the
benefit of doubt. In Kali Ram v. State of Himachal
Pradesh, [(1973) 2 SCC 808] this court made the
following observations (para 25 p.820).
"Another golden thread which runs through the
web of the administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case one pointing to the
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guilt of the accused and the other to his
innocence, they view which is favourable to the
accused would be adopted. This principle has a
special relevance in cases where in the guilt of the
accused is sought to be established by
circumstantial evidence."
(emphasis supplied)
31. The Hon'ble Apex Court in the case of
Umedbhai Jadavbhai vs. State of Gujarat reported in
1978 SCC (Cri) 108 wherein at paragraph 10 held as
under:
"10. Once the appeal was rightly
entertained against the order of acquittal, the
High Court was entitled to reappreciate the entire
evidence independently and come to its own
conclusion. Ordinarily, the High Court would give
due importance to the opinion of the Sessions
Judge if the same were arrived at after proper
appreciation of the evidence."
(emphasis supplied)
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32. The Hon'ble Apex Court in the case of
Chandrappa and Others vs. State of Karnataka
reported in (2007) 4 SCC 415 wherein at paragraph 44 it
is held as under:
"In our view, if in the light of above
circumstances, the trial Court felt that the
accused could get benefit of doubt, the said view
cannot be held to be illegal, improper or contrary
to law. Hence, even though we are of the opinion
that in an appeal against acquittal, powers of
appellate Court are as wide as that of the trial
Court and it can review, reappreciate and
reconsider the entire evidence brought on record
by the parties and can come to its own conclusion
on fact as well as on law, in the present case, the
view taken by the trial court for acquitting the
accused was possible and plausible. On the basis
of evidence, therefore, at the most, it can be said
that the other view was equally possible. But it is
well-established that if two views are possible on
the basis of evidence on record and one
favourable to the accused has been taken by the
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trial Court, it ought not to be disturbed by the
appellate Court. In this case, a possible view on
the evidence of prosecution had been taken by
the trial Court which ought not to have been
disturbed by the appellate Court. The decision of
the appellate Court (High Court), therefore, is
liable to be set aside."
(emphasis supplied)
33. The Sessions Court, considering the evidence of
the prosecution inclusive of the defence theory rendered
the judgment of acquittal. The finding recorded by the
Sessions Court while acquitting the accused is just and
proper and based on the evidence of the prosecution.
There is no merit in the appeal which calls for interference
by this court.
34. Considering the law laid down by the Hon'ble
Apex Court in the judgments referred above, we answer
point No.1 in the negative and proceed to pass the
following:
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ORDER
i) The criminal appeal is dismissed.
ii) The judgment of acquittal dated 31.10.2019
passed in S.C.No.16/2017(POCSO) by the
Additional District and Sessions Judge, Gadag
for the offences punishable under Section
376(2)(I) of IPC and Sections 4 and 8 of the
Protection of Children from Sexual Offences Act,
2012, is hereby confirmed.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
MBS
CT: BSB
