Karnataka High Court

S Naveenkumar vs State Of Karnataka By on 19 February, 2025

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                                                     NC: 2025:KHC:7328
                                                 CRL.A No. 156 of 2013




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                 DATED THIS THE 19TH DAY OF FEBRUARY, 2025
                                        BEFORE
                     THE HON'BLE MR JUSTICE S RACHAIAH
                     CRIMINAL APPEAL NO. 156 OF 2013 (C)
            BETWEEN:

                S NAVEENKUMAR
                S/O SIDDARAJU
                AGED ABOUT 23 YEARS
                RESIDING AT SHASHIYALAYAPURA VILLAGE
                MALAVALLI TALUK, MANDYA DISTRICT
                PIN - 563 114.
                                                          ...APPELLANT
            (BY SRI. KEMPARAJU, ADVOCATE)

            AND:

                STATE OF KARNATAKA BY
                MALAVALLI RURAL POLICE STATION
                REP BY STATE PUBLIC PROSECUTOR - 560 001.
                                                     ...RESPONDENT
            (BY SRI. M R PATIL, HCGP)
Digitally
signed by
NARAYANA         THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
UMA
Location:
            ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
HIGH        SENTENCE DATED 05.02.2013 PASSED BY THE ADDITIONAL
COURT OF
KARNATAKA   DISTRICT & SESSIONS JUDGE, MANDYA IN S.C.NO.80/2011
            AND ETC.,

                 THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
            03.02.2025,  COMING   ON   FOR  PRONOUNCEMENT   OF
            JUDGMENT, THIS DAY, THE COURT DELIVERED THE
            FOLLOWING:-


            CORAM:   HON'BLE MR JUSTICE S RACHAIAH
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                                              NC: 2025:KHC:7328
                                        CRL.A No. 156 of 2013




                      CAV JUDGMENT

1. This appeal is arising from the judgment of conviction and

order on sentence dated 05.02.2013 in S.C. No.80/2011

on the file of the Additional District and Sessions Judge,

Mandya.

2. The rank of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case:

3. It is the case of the prosecution that the complainant

being the father of the victim lodged a complaint stating

that his daughter PW.2 had completed her SSLC and

thereafter, she had discontinued her studies. As per the

request of PW.2, he got her admitted to the tailoring class

situated at Malavalli Town.

4. It is further stated that on 23.07.2010 around 9.00 a.m.,

PW.2 went to Malavalli to attend the tailoring class along

with her friend Ashwini. Further, it is stated that she did

not return to her house on that day. Being panicked

about the situation, he stated to have searched for the

whereabouts of his daughter. As he could not get the

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correct information, he lodged a complaint before the

police stating that his daughter was found missing.

5. During the investigation, the complainant learnt that his

daughter had been kidnapped by the accused. Having

learnt the said fact, he lodged one more complaint

against the accused as per Ex.P2. After registering the

case against the accused, the jurisdictional police have

learnt that both the victim and the accused were staying

at Bandritanda, Harappanahalli Taluk. As a part of the

investigation, the jurisdictional police went to the place,

secured them and brought them to the police station.

6. After securing the presence of PW.2, her statement was

recorded. As per the said statement, it reveals that the

accused had committed sexual assault on her during her

stay with the accused. Therefore, the jurisdictional police

have inserted Sections 366(A) and 376 of the Indian

Penal Code (for short 'IPC'). After conducting the

investigation, submitted the charge sheet.

7. In order to prove the case of the prosecution, the

prosecution examined 9 witnesses as PW.1 to PW.9 and

got marked 17 documents as Exs.P1 to P17 and also

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identified 5 material objects as M.Os.1 to 5. The Trial

Court after appreciating both oral and documentary

evidence on record, rendered the conviction of the

accused.

8. Heard Sri.Kemparaju, learned counsel for appellant and

Sri.M.R.Patil, learned High Court Government Pleader for

the respondent - State.

9. It is the submission of the learned counsel for the

appellant that the findings of the Trial Court in recording

the conviction are perverse, illegal and opposed to the

evidence on record. Therefore, the same is liable to be

set aside.

10. It is further submitted that though there are some

contradictions and omissions in the evidence of material

witnesses, the Trial Court recorded the conviction which is

unsustainable. In fact, the victim had turned hostile and

not supported the case of the prosecution in respect of

kidnap or rape. In spite of her hostility, the Trial Court

appreciated the evidence and recorded the conviction

which is erroneous.

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11. It is further submitted that a second complaint came to

be registered by the complainant based on the

information received by PW.3. According to PW.3, he had

seen the accused near Kagepura Circle, however, the

evidence of PW.2 would indicate that she had been to

tailoring class alone. The contradiction in respect of PW.3

having seen the accused at Kagepura bus stop should not

have been considered by the Trial Court.

12. It is further submitted that though PW.8 stated to have

conducted spot mahazar at Bandritanda where it is

alleged that both PW.2 and the accused were staying for

shorter period, however, PW.8 has not cited any localites

as witnesses to the said mahazar nor cited the owner of

the house or neighbours as witnesses to depose about the

stay at the said place. Non-mentioning the independent

witnesses to the said mahazar would create a doubt. The

said doubt should have been given as a benefit of doubt

to the accused. In fact, the accused had stated in his

statement, which was recorded under Section 313 of

Cr.P.C., that he was arrested by the police when he was

at Ramanagara.

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13. It is further submitted that the Trial Court committed an

error in appreciating the evidence of PWs.1, 2 and 3

properly, as a result of which, the impugned judgment is

passed which is liable to be set aside. As such, learned

counsel for the appellant prays to allow the appeal.

14. Per contra, the learned High Court Government Pleader

vehemently justified the judgment of conviction passed

by the Trial Court and he further submitted that the

entire case is based on the evidence of the complainant,

victim and PW.3. The victim was a minor as on the date

of the incident. She had not only been abducted, but

also, been subjected to sexual assault. The medical

record would indicate that she had been subjected to

sexual assault. Therefore, the Trial Court has rightly

recorded the conviction after appreciating the oral and

documentary evidence on record.

15. It is further submitted that even though PW.2 has turned

hostile, the evidence which she supported the case of the

prosecution has to be considered. The evidence of PW.2

would indicate that she had been subjected to sexual

assault after she was abducted. The said aspect has been

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supported by the medical evidence. PW.3 has supported

the case of the prosecution stating that he had seen when

accused was abducting the victim. As all the witnesses

are consistent in their evidence that the victim was

abducted and subjected to sexual assault by the accused,

the conviction recorded by the Trial Court is proper and

justifiable. Therefore, interference with the said findings

is not tenable. Making such submissions, the learned

High Court Government Pleader prays to dismiss the

appeal.

16. Having heard the learned counsel for the respective

parties and also perused the findings of the Trial Court in

recording the conviction, it is clear that the findings of the

Trial Court in rendering the conviction were based on the

evidence of PWs.1, 2 and 3 and also the medical

evidence.

17. The Trial Court after appreciating the evidence of PW.2

especially the examination-in-chief opined that she has

supported the case of the prosecution, however, her

cross-examination has been ignored. The method in

which the Trial Court appreciated the evidence of PW.2, in

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my view, is not proper for the reason that the evidence of

the witness has to be read as a whole. The evidence

which includes examination-in-chief, cross-examination

and re-examination. Reading the evidence in a pick and

choose manner is unsustainable.

18. The evidence of PW.2 would goes to show that initially,

she supported the case of the prosecution, however, in

the cross-examination, she has admitted that she was

neither kidnapped nor sexually been assaulted by the

accused. Though the medical evidence would indicate

that she was subjected to sexual assault, the fact remains

that it is a just opinion. It is needless to state that

conviction cannot be sustained only on the basis of expert

opinion.

19. The Trial Court committed error in appreciating the

evidence of official witnesses that they have conducted

spot mahazar of the place where it is said that PW.2 was

staying along with accused at Bandritanda which is

erroneous for the reason that the owner of the house or

neighbours or localites have not been cited as witnesses

nor examined for the purpose of corroboration. In the

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absence of panch witnesses who are the localites, it is

hard to believe that the prosecution has proved that PW.2

was kept in the place where the police have conducted

the spot mahazar.

20. On re-appreciating the evidence of all the witnesses, both

oral and documentary, I am of the considered opinion

that the Trial Court has committed grave error not only in

appreciating the evidence of PW.2, but also other

documentary evidence. Therefore, the conviction of the

accused cannot be sustained. Thus, the judgment of

conviction and order of sentence passed by the Trial

Court is liable to be set aside.

21. Hence, I proceed to pass the following:

ORDER

i) The criminal appeal is allowed.

ii) The judgment of conviction and order on sentence

dated 05.02.2013 passed in S.C. No.80/2011 by the

Additional District and Sessions Judge, Mandya is set

aside.