State Of Karnataka, Rep. By The Police ... vs Vinayak Sannu Gouda
2025 Latest Caselaw 1269 Kant

11. PW16-Doctor has deposed in her evidence that on 09th

March, 2015, she examined the victim. On genital

examination, she has opined that the victim had been sexually

assaulted. Accordingly, she issued the medical certificate as per

Exhibit P20.

12. Further, it is submitted that PW19 is the Medical

Officer at Pandit Hospital, Sirsi. He has deposed that on 23rd

January 2014, he examined the victim and noticed that victim

was six months pregnant and further deposed that PW1 has

delivered a still-born girl baby on 20th April 2014. Accordingly,

he issued the case sheet as per Exhibits P5, P6 & P26. The said

evidence of the Doctor has not been properly read and

appreciated by the trial Court. Further, it is submitted that

learned Special Judge acquitted the accused on the ground that

the panchayatdars who had convened meeting, have not at all

supported the case of prosecution. The said reasoning is not

sustainable since PW1-victim, her mother-PW2 and sister of

PW1 have consistently stated regarding sexual assault

committed by accused No.1 and also regarding accused 2 to 5

facilitating accused No.1 to get aborted the victim girl and also

accused 6 & 7 asking accused No.1 to leave the village.

Therefore, the reasoning assigned by the trial Court for

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acquittal is not sustainable. Further, it is submitted that the

trial Court ought to have convicted the accused by taking into

consideration the evidence of PWs1, 13, 16 & 19 and other

official witnesses. Failure to consider the same, has resulted in

miscarriage of justice. He would submit that the trial Court has

not properly appreciated the evidence on record in accordance

with law and facts and hence the impugned judgment and order

of acquittal is not sustainable and the same is liable to be set

aside by acquitting the accused. On all these grounds, the

learned Additional State Public Prosecutor sought to allow the

appeal.

13. On the other hand, learned counsel appearing for the

respondent would submit that the trial Court has properly

appreciated the evidence on record in accordance with law and

facts. There are no grounds to interfere with the impugned

judgment of acquittal. Accordingly, sought for dismissal of the

appeal.

14. Having heard the learned Additional Special Public

Prosecutor appearing for the State and learned counsel

appearing for respondent-accused, and on perusal of materials

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placed on record, the following points would arise for our

consideration:

(1) Whether the impugned judgment and order of acquittal suffers from legal infirmities requiring this Court to intercede?

(2) What order?

15. Our answer to the above points would be:

Point No.1: in the negative;

Point No.2: as per final order

Regarding Point No.1:

16. Before adverting to the actual facts of the case and

appreciation of evidence, it is necessary to refer the dictum of

Hon'ble Supreme Court regarding scope and power of Appellate

Court in appeal against the order of acquittal.

17. In the case of MOTIRAM PADU JOSHI & OTHERS v.

STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676,

at paragraph 23 of the judgment, it is held thus:

"23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-

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"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the presumption of his innocence

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is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

18. In the case of MUNISHAMAPPA & OTHERS v. STATE

OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC

ONLINE 69, at paragraph 16 of the judgment it is held as under:

"16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. ..."

19. In the case of HARI RAM & OTHERS v. STATE OF

RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4

of the judgment, it is observed thus:

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"4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and

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proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice...."

20. In the case of STATE OF RAJASTHAN v. KISTOORA

RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the

judgment it is held as under:

"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."

21. In the case of MAHAVIR SINGH v. STATE OF

MADHYA PRADESH reported in (2016)10 SCC 220, at

paragraph 12 of the judgment, it is observed thus:

"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be

- 16 -

very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion."

22. It is the case of the prosecution that accused No.1

being well aware that complainant is a minor, was in close

acquaintance with the complainant and on a promise that he

will marry her, on 10th December, 2012 in the house of

complainant, committed repeated sexual assault on her, due to

which complainant became pregnant. Accused 1 to 5 with an

intention to deceive CWs1 & 10 made false promise that

marriage of the complainant would be performed with accused

No.1 after complainant turns 18 and so making them believe,

on 21st January, 2014 took the complainant to Sirsi

Government Hospital and got aborted the pregnancy. Accused

No.1, even after complainant becoming major, did not marry

her. Accused 2 to 5 also not performed marriage of accused

No.1 with complainant and thereby, cheated CWs1 & 10.

Accused 6 & 7 told accused 1 to 5 to leave the village and

thereby, committed the offences punishable under Sections

376, 417, 109, 312 R/w 34 of IPC and Sections 4, 6, 10 r/w 17

of POCSO Act.

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23. The Investigating Officer has cited 40 witnesses in

the charge sheet. Out of them, 27 witnesses have been

examined as PWs1 to 27 and 38 documents have been marked

as Exhibits P1 to P 38 and 24 material objects has been marked

as MOs1 to 24.

24. The genesis of the case is the complaint filed by

PW1 as per Exhibit P1. In Complaint-Exhibit P1, it is stated as

under:

"±ÉÆèÁ ªÀÄAdÄ£ÁxÀ UËqÁ ªÀAiÀiÁ 18 ªÀµÀð GzÉÆåÃUÀ PÀÆ° PÉ®¸À ¸Á|| GªÀÄäZÀV ªÀÄÄAqÀUÉÆÃqÀ vÁ®ÆPÀ ªÉÆÃ.£ÀA.9480669582 DzÀ £À£Àß zÀÆgÀÄ

£Á£ÀÄ ªÉÄð£À «¼Á¸ÀzÀ°è £À£Àß vÁ¬Ä ±ÀgÁªÀw vÀAV £ÁUÉéÃt vÀªÀÄä QgÀt »ÃUÉ PÀÆr G½AiÀÄÄvÉÛêÉ. £À£Àß E§âgÀÆ CPÀÌA¢jUÉ ªÀÄzÀĪÉAiÀiÁVgÀÄvÀÛzÉ. £À£Àß d£Àä ¢£ÁAPÀ 05.10.1996 EzÀÄÝ, £Á£ÀÄ ¸ÀPÁðj »jAiÀÄ ¥ÁæxÀ«ÄPÀ ±Á¯É GªÀÄäaVAiÀÄ°è 7 £Éà vÀgÀUÀwAiÀĪÀgÉUÉ N¢gÀÄvÉÛãÉ. 2009£Éà ¸Á°£À°è £À£Àß 7£Éà vÀgÀUÀw NzÀÄ ªÀÄÄV¢zÀÄÝ £ÀAvÀgÀzÀ°è £Á£ÀÄ ±Á¯ÉUÉ ºÉÆÃUÀzÉ ªÀÄ£ÉAiÀÄ°èAiÉÄà PÉ®¸À ªÀiÁrPÉÆAqÀÄ EzÉÝ. »VgÀÄvÁÛ £À£Àß vÁ¬ÄAiÀÄ aPÀ̪ÀÄä£À ªÀÄUÀ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÁ EvÀ£ÀÄ £ÀªÀÄä ªÀÄ£ÉUÉ DUÁUÀ §AzÀÄ ºÉÆÃV ªÀiÁqÀÄwÛzÀÝ£ÀÄ. £À£ÉÆßnÖUÉ ºÉaÑUÉ ªÀiÁvÀ£ÁqÀÄwÛzÀÝ£ÀÄ. £Á«§âgÀÆ ¸À°UɬÄAzÀ EzÉÝêÀÅ. £À£ÀUÉ ªÀÄzÀÄªÉ DUÀÄvÉÛÃ£É CAvÁ ºÉüÀÄwÛzÀÝ£ÀÄ. £À£ÀUÉ ªÀÄzÀÄªÉ DUÀÄvÉÛÃ£É CAvÁ £ÀA©¹ 10.12.2012 gÀAzÀÄ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ £À£ÉÆßA¢UÉ zÉÊ»PÀ ¸ÀA¥ÀPÀð ªÀiÁrzÀ£ÀÄ. CzÉà jÃw £À«Ää§âgÀ°è C£ÀAvÀgÀzÀ®Æè zÉÊ»PÀ ¸ÀA¥ÀPÀð DVvÀÄÛ. CzÀjAzÀ £Á£ÀÄ ¥ÉæUßÉ Al DzÉ£ÀÄ. £Á£ÀÄ ¥ÉæUÉßAl DzÀ «µÀAiÀÄ £À£Àß vÁ¬ÄUÉ w½¬ÄvÀÄ. £À£Àß vÁ¬Ä «£ÁAiÀÄPÀ£À ªÀÄ£ÉUÉ F «µÀAiÀÄ w½¹zÀ¼ÀÄ. «£ÁAiÀÄPÀ£À ªÀÄ£ÉAiÀĪÀgÁzÀ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÁ, PÀȵÁÚ ¸ÀtÄÚ UËqÁ, ¸ÀÄgÉñÀ «ÃgÀ¨ÀszÀæ UËqÁ EªÀgÉ®ègÀÆ ¸ÉÃj £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ ¥ÀAZÁAiÀÄw ªÀiÁrzÀgÀÄ. ¥ÀAZÁAiÀÄwAiÀÄ°è C¨Á±À£À ªÀiÁrzÀ £ÀAvÀgÀ ªÀÄzÀÄªÉ ªÀiÁr¸ÀÄvÉÛÃªÉ CAvÁ ºÉýzÀgÀÄ. D ¢ªÀ¸À ¢£ÁAPÀ: 21.01.2014 EzÀÄÝ, ¢£ÁAPÀ 22.012014 gÀAzÀÄ £ÀªÀÄä ªÀÄ£ÉUÉ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÁ PÀȵÁÚ ¸ÀtÄÚ UËqÁ,

- 18 -

ºÀÄ°AiÀiÁ «ÃgÀ¨sÀzÀæ UËqÁ, ¸ÀÄgÉñÀ «ÃgÀ¨ÀszÀæ UËqÁ ±ÁgÀzÁ ªÀĺÁ§¯É±ÀégÀ UËqÁ EªÀgÉ®ègÀÆ §AzÀgÀÄ. «£ÁAiÀÄPÀ ºÁUÀÆ £Á£ÀÄ ¨ÉÊPï ªÉÄÃ¯É ²gÀ¹ D¸ÀàvÉæUÉ ºÉÆÃzɪÀÅ. G½zÀªÀgÉ®ègÀÆ N«Äß ªÉÄÃ¯É ²gÀ¹UÉ §AzÀgÄÀ . D ¢ªÀ¸À ²gÀ¹ ¸ÀPÁðj D¸ÀàvÉæAiÀÄ°è vÉÆÃj¹ C°èAiÉÄà C¨Á±À£À ªÀiÁr¹zÀgÀÄ. £ÀAvÀgÀ ¢£ÁAPÀ: 23.01.2014 gÀAzÀÄ N«Äß ªÉÄÃ¯É J®ègÀÆ ¸ÉÃj £À£ÀߣÀÄß £À£Àß vÁ¬ÄAiÀÄ ªÀÄ£É ºÀwÛgÀ §AzÀÄ §lÄÖ ºÉÆÃzÀgÀÄ. C£ÀAvÀgÀ CªÀgÀÄ §gÀ¯Éà E®è. C£ÀAvÀgÀ £ÁªÀÅ 18 ¢£ÀUÀ¼À £ÀAvÀgÀ £ÀªÀÄÆäj£À ¨ÉÃfAUï UÉÆÃ¥ÀÄ ¥Ánî EªÀgÀ ªÀÄ£ÉAiÀÄ°è «ÄÃnAUÀ ªÀiÁrzÀgÀÄ. «ÄÃnAUÀ£À°è «£ÁAiÀÄPÀ£ÀÄ £Á£ÀÄ ªÀÄzÀÄªÉ DUÀÄvÉÛÃ£É .±ÉÆèÁ½UÉ 18 ªÀµÀð vÀÄA§®Ä 6 wAUÀ¼ÀÄ ¨ÁQ EzÉ. PÁgÀt 6 wAUÀ¼À £ÀAvÀgÀ ªÀÄzÀÄªÉ DUÀÄvÉÛÃ£É CAvÁ ºÉýzÀ. CzÀPÉÌ «£ÁAiÀÄPÀ£À vÁ¬Ä zÉëAiÀĪÀgÀÄ ¸ÀºÀ M¦àUÉ ¤ÃrzÀÝgÀÄ. «ÄÃnAUÀ ªÀÄÄV¹ ºÉÆÃUÀĪÁUÀ «£ÁAiÀÄPÀ¤UÉ ¤Ã£ÀÄ HgÀÄ ©lÄÖ ºÉÆÃUÀÄ HgÀ°è EgÀ¨ÉÃqÀ CAvÁ ¸ÀwñÀ ²æÃzsÀgÀ £ÁAiÀÄÌ. T¥Àw ¸ÀvÀå£ÁgÁAiÀÄt ¥Ánî ºÉýPÉÆqÀĪÀÅzÀ£ÀÄß £Á£ÀÄ ºÁUÀÆ £À£Àß vÁ¬Ä PÉýgÀÄvÉÛêÉ. C£ÀAvÀgÀ FªÀgÉUÀÆ «£ÁAiÀÄPÀ ªÀÄzÀÄªÉ «ZÁgÀªÁV £ÀªÀÄä ªÀÄ£ÉUÉ §A¢gÀĪÀÅ¢®è. «£ÁAiÀÄPÀ£À ªÀÄ£ÉAiÀĪÀgÀÄ ¸ÀºÀ CªÀ£ÀÄ J°èUÉ ºÉÆÃVgÀÄvÁÛ£É CAvÁ £ÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®è CAvÁ ºÉýgÀÄvÁÛgÉ. FªÀgÉUÀÆ «£ÁAiÀÄPÀ HgÀ°è EgÀĪÀÅ¢®è. CªÀ£À£ÀÄß ¸ÀwñÀ, ²æÃzsÀgÀ £ÁAiÀÄÌ, UÀt¥Àw ¸ÀvÀå£ÁgÁAiÀÄt ¥Ánî EªÀgÀ ªÉÄÃ¯É £À£ÀUÉ C£ÀĪÀiÁ£À EgÀÄvÀÛzÉ.

«£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÁ ¸Á|| mÉAPÀ® GªÀÄäZÀV EvÀ£ÀÄ £À£ÀUÉ ªÀÄzÀÄªÉ DUÀÄvÉÛÃ£É CAvÁ £ÀA©¹ £À£ÉÆßA¢UÉ zÉÊ»PÀ ¸ÀA¥ÀPÀð ºÉÆA¢ UÀ¨sÀðªÀw ªÀiÁr, C¨Á±À£ï ªÀiÁr¹ ªÉÆøÀ ªÀiÁrgÀÄvÁÛ£É. PÁgÀt CªÀ£À ªÉÄÃ¯É £À£Àß PÀA¥ÉèÃAl

Ez.É."

25. On the basis of the complaint dated 07th March,

2015, Station House Officer, Mundgod registered case in Crime

No.44 of 2015 for the offence punishable under Sections 376,

417, 312, 109, read with Section 34 of Indian Penal Code and

Sections 4, 6, 10 and 17 of POCSO Act and submitted First

Information Report, to the Court on 08th March 2015 as per

Exhibit P38. On the date of complaint, the investigating officer

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conducted mahazar as per Exhibit P2 in the presence of

Panchas and also prepared sketch and took photographs as per

Exhibit P3. On 10th March 2015, the investigating officer

produced the victim before the Court to record the statement

under section 164(5) of Code of Criminal Procedure as per

Exhibit P4. After medical examination and conducting seizure

mahazar, as also, recording statement of witnesses,

investigating officer has submitted the chargesheet against the

accused. Victim examined as PW1. She has deposed in her

evidence as follows:

"Accused No.1 Vinayaka is cousin brother of her mother and accused No.2 to 5 are relatives of the accused No.1 and the victim. That, in the year 2012 she was aged about 15 years and her date of birth is 05.10.1996 same was entered in the School record. In the year 2015 herself and her mother, sister and brother were residing and the accused No.1 being cousin brother of her mother uses to visit their house and assisting doing work. Due to the regular visit the accused became close acquaintance with her and he uses to remain there in the night hours also. He uses to encourage victim that, he is going marry her. On 10.12.2012 the accused came to their house and he had sexual intercourse with her and he had illegal intercourse with her on number of occasions. Due to the act of the accused in the year 2013 victim became pregnant and she informed the said act to her mother her mother told the said fact to the

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accused No.1 and brother of accused No.4. There was a panchayath taken place by the elderly persons. During that panchayat the accused No.1 promised and agreed to marry her after completion of 18 years age of the victim and he requested to terminate her pregnancy so on 22.01.2024 accused No.1 took the victim to the hospital on his motor cycle and accused No.2 to 5 came in Omini vehicle and all of the accused persons got terminated the pregnancy of the victim. On 24.01.2014 the victim was brought to her house after termination of the pregnancy the accused No.1 told her that he will marry her on completion of the 18 years. But, thereafter he never turned up as promised by him elderly persons also contacted all accused persons at that time also he promised that, after completion of 18 years he will marry her, since there was short of four months to complete 18 years. After completion of the meeting accused No.6 and 7 stealthy told the accused No.1 to leave village which was heard by the victim. The accused No. 1 failed to marry her so she approached the police and filed complaint as per Ex.P.1.

She also deposed that, she was subject to medical examination and also statement under Section 164 also recorded by the jurisdictional Magistrate as per Ex.P4. She had also shown the spots to investigation Officer. During the course of examination, the accused got clarified that as per the School records her date of birth is 05.10.1996 and she has given complaint on 07.03.2015 and also even at the time of the complaint shall not completed 18 years."

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26. The mother of the victim was examined PW2. She

has supported the evidence of PW1.

27. PW3-Ganapathi Rama Marati and PW4 Sannu Yenku

Gouda have deposed as to the mahazar conducted by the police

as per Exhibit P2. But during their cross-examination, they

have unequivocally admitted that they do not know the

contents of Exhibit P2.

28. PW5-Annappa Anthu Marathi, PW7-Parameshwar

Keriya Gouda, PW8-Venkatu Sannu Gowda, PW9-Krishna

Shankar Gowda, PW10-Huliya Yenku Gowda, PW11-Vishnu

Omanna Marate, PW12-Krishna Vishnu Marate, PW13-Lakshmi

Mahesh Marathe, PW14-Ramachandra Krishna Bhat and PW15-

Guruvendra Srinivas, all these witnesses have not supported

the case of the prosecution.

29. PW16 Dr. Smt. G.B. Lakshmi Devi, has deposed as

to the examination of PW1 at request of police and also

regarding issuance of medical examination report Exhibit P2 &

FSL report Exhibit P21.

30. PW17-Dr. Kiran Vasantrao Kulkarni, has deposed in

his evidence as to the medical examination of accused No.1 at

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request of police and issuance of a report Exhibit P2, P3 and

also Exhibit P21-FSL report.

31. PW18-Manjunath B, Police Constable has deposed

as to the production of material before the Government

Hospital Mundgod, as per the directions of his superior officer

and thereafter, production of the same before CW40.

32. PW19-Dr. Vinayak Gangadhar Bhat has deposed in

his evidence as to the termination of pregnancy of the victim on

23rd January 2014. He has also deposed as to the case sheet

maintained by them as per Exhibits P5, P6 & P26.

33. PW20-Roopa Ravi Naik, PW21-Subhash Gulagappa

Vaddatti, PW22-S.C. Patil, PW26-Geeta Govindappa and PW27-

Hussain Khan Ismail Khan, Police officers have deposed as to

their respective investigation.

34. PW23-Smt. Anupama Nagaraj, Headmistress has

deposed as to issuance of School admission register extract

Exhibit P33.

35. PW24-Mansingh Nemu Rathod, Headmaster has

deposed as to issuance of Exhibit P35.

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36. PW25-Somalingappa Ningappa Chabbi, Panchayat

Development Officer, has deposed as to the issuance of

assessment extract Exhibit P37, at request of the police.

37. Before appreciating the evidence of the witnesses,

it is necessary to take note of certain important facts. The

Protection of Children from Sexual Offences (POCSO) Act, 2012

came into force on 14th November 2012. According to the

School Admission Register marked as Exhibit P33, the date of

birth of the victim (PW1) is 5th October 1996. The prosecution

alleges that accused No.1 committed rape on the victim for the

first time on 10th December 2012. On that date, the victim was

16 years, 2 months, and 5 days old, thus a minor under the

POCSO Act. The complaint (Exhibit P1) was lodged by PW1 on

7th March 2015, when she was 18 years, 5 months, and 2 days

old, indicating a delay of five months and two days after

attaining majority. Notably, neither in the complaint (Exhibit

P1) nor in the testimonies of PW1 and PW2, has any

explanation been provided for this delay in lodging the

complaint. Further, the First Information Report (Exhibit P38)

at column No.3 clearly records that the investigating officer did

not mention any reasons for the delay in filing the report. The

spot mahazar (Exhibit P2) also fails to specify the date of the

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alleged first incident, as mentioned in the complaint dated 10th

December 2012. The accused have categorically denied the

prosecution's case, including the victim's age. The specific

defence taken by the accused is that the victim had already

attained the age of majority by 2012. It is their contention that

the date of the alleged offence, 10th December 2012, has been

strategically mentioned only to bring the case within the

purview of the POCSO Act. In support of his defence, accused

No.1 has filed a statement, which reads as follows:

"STATEMENT GIVEN BY ACCUSED NO.1 U/SEC 313 OF CRPC

"I am made to involve in this case as accused no. 1 and I am totally denying the entire allegations made against myself and my brothers and sister much less allegations of promise to marriage with the complainant still less having had sexual acts with her. We have not taken her to the Government Hospital, Sirsi to get the pregnancy terminated as alleged. The age of the complainant as on the date of the complaint was more then 20 years but considering the relationship with the parents of the accused no.1, in order to pressurize us, the complainant and her mother managed to file the present complaint forcing myself to get her married and further alleged that I have had sexual acts with her. All efforts made by the complainant and her mother ended in vain. She has deliberately filed the complaint against me alleging that she was minor. Further the allegation that I

- 25 -

have gone to the house of the complainant and stayed their in and committed sexual acts is also denied. The allegation that I had been to her house on 10/12/2012 and committed sexual acts is also false. The complainant in order to bring the offence under POSCO Act deliberately made such allegations against me. The complainant was more then 20 years and worked at Goa and Bangalore for more than 4 years but deliberately shown as minor. I further state that my brothers and sister are made to involve in this case in order to pressurize them to heed her request even after the failure of Panchayati being held. The accused no.7 has not supported her claim and thus he is also made as accused in this case. Thus myself, my brothers and sister are totally innocent may kindly be acquitted from the charges."

38. The investigating officer has not collected any

legally acceptable evidence to show that the accused has

committed sexual assault on the victim for the first time on 10th

December 2012. The conduct of the victim and the delay in

filing the complaint will create reasonable doubt with regard to

the alleged date of first sexual assault shown in the complaint.

39. The complaint-Exhibit P1, does not disclose as to

the number of times accused No.1 had sexual intercourse with

PW1. For the first time before court while recording statement

under Section 164(5) of Code of Criminal Procedure as per

Exhibit P4, the victim has stated that accused Vinayak Sannu

- 26 -

Gouda had sexual intercourse for the past one and half years

from the date of recording her statement, i.e. from 10th March,

2015. Since there is no legally acceptable evidence placed by

the prosecution, we are of the considered view that the

prosecution has failed to prove that the accused No.1 had

sexual intercourse with PW1 as alleged in the complaint.

Accordingly, prosecution has failed to prove the offences

punishable under Sections 4, 6, 10 and 17 of POCSO Act.

40. In Exhibit P4, the statement of victim recorded

under Section 164 of Code of Criminal Procedure, she has

deposed as under:

     "¦qÀ ¹qÀ                   :
     ¥ÀæªÀiÁt ªÀZÀ£À            :
     ¨ÉÆâü¹zÀ ¢£ÁAPÀ           : 10.03.2015

     ¸ÁQëzÁgÀgÀ ºÉ¸ÀgÀÄ         : ±ÉÆèsÁ ªÀÄAdÄ£ÁxÀ UËqÀ

     vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ          : ªÀÄAdÄ£ÁxÀ

     ªÀAiÀĸÀÄì          : 18 ªÀµÀð

     ªÀÈwÛ               : PÀÆ° PÉ®¸À

     ªÁå¸ÀÛªÀå           : GªÀÄäZÀV, vÁ: ªÀÄÄAqÀUÉÆÃqÀ.

F ªÉÄÃ¯É ºÉýzÀ ¥ÀæPÀgÀt ¸ÀASÉå¼À 44-2015 gÀ ¥ÀæPÀgÀtzÀ°è £ÉÆAzÀ ±ÉÆèsÁ ªÀÄAdÄ£ÁxÀ UËqÀ EªÀgÀ ºÉýPÉAiÀÄ£ÀÄß zÁR°¸À®Ä ªÀÄÄAqÀUÉÆÃqÀ ¦L gÀªÀgÀÄ J§Æèö妹-501 gÀªÀgÀ eÉÆvÉUÉ £ÉÆAzÀ

- 27 -

±ÉÆèsÁ ªÀÄAdÄ£ÁxÀ UËqÀ EªÀ¼À£ÀÄß F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdgÀ ¥Àr¹gÀÄvÁÛgÉ.

¸À¢æ £ÉÆAzÀ ±ÉÆèsÁ ªÀÄAdÄ£ÁxÀ UËqÀ EªÀjUÉ AiÀiÁªÀÅzÉà MvÀÛqÀ ªÉÄÃgÉUÉAiÀiÁUÀ°Ã CxÀªÁ AiÀiÁªÀÅzÉà D«ÄµÀPÉÌ M¼ÀUÁUÀ°Ã ¸ÁQë £ÀÄrAiÀÄÄwÛ®è JA§ÄzÀ£ÀÄß DPÉAiÀÄ£ÀÄß ¥Àæ²ß¹ RavÀ ¥Àr¹PÉƼÀî¯Á¬ÄvÀÄ.

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£À£Àß vÁ¬ÄAiÀÄ aPÀ̪ÀÄä£À ªÀÄUÀ£ÁzÀ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÀ ¢£ÁAPÀ: 10.12.2012 gÀAzÀÄ £À£ÀߣÀÄß ªÀÄzÀÄªÉ ªÀiÁrPÉƼÀÄîvÉÛÃ£É CAvÁ ºÉý £ÀA©¹ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ £À£ÉÆßA¢UÉ zÉÊ»PÀ ¸ÀA¥ÀPÀð ªÀiÁrgÀÄvÁÛ£É. EzÉà jÃw ¸À¢æ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÀ EªÀgÀÄ DUÁUÀ 1 ªÀgÉ ªÀµÀð¢AzÀ £ÀªÀÄä ªÀÄ£ÀUÉ §AzÀÄ £À£Àß eÉÆvÉ C£ÉÃPÀ ¸À® zÉÊ»PÀ ¸ÀA¥ÀPÀð ªÀiÁqÀÄwÛzÀÄÝ, ¸À¢æ zÉÊ»PÀ ¸ÀA¥ÀPÀð¢AzÀ £Á£ÀÄ UÀ¨sÀðªÀwAiÀiÁV 7 wAUÀ¼ÀÄ DVgÀÄvÀÛzÉ. £ÀAvÀgÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è £À£Àß vÁ¬ÄUÉ «µÀAiÀÄ UÉÆvÁÛV, CªÀgÀ ªÀÄ£ÉAiÀĪÀgÀ£ÀÄß PÀgɬĹ ¢£ÁAPÀ: 21.01.2024 gÀAzÀÄ ¥ÀAZÁAiÀÄw ªÀiÁrgÀÄvÁÛgÉ. ¸À¢æ ¥ÀAZÁAiÀÄwAiÀÄ°è «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÀ EvÀ£ÀÄ £À£ÀUÉ UÀ¨sÀð¥ÁvÀ ªÀiÁr¹zÀ £ÀAvÀgÀ £À£ÀߣÀÄß ªÀÄzÀĪÉAiÀiÁUÀÄvÉÛÃ£É CAvÁ w½¹zÀÄÝ, D ¥ÀæPÁgÀ ¢£ÁAPÀ: 22.01.2014 gÀAzÀÄ «£ÁAiÀÄPÀ ¸ÀtÄÚUËqÀ, PÀȵÁÚ ¸ÀtÄÚ UËqÀ, ºÀÄ°AiÀiÁ «ÃgÀ¨sÀzÀæUËqÀ, ±ÁgÀzÁ ªÀĺÁ§¼ÉñÀégÀ UËqÀ ªÀÄvÀÄÛ ¸ÀÄgÉñÀ «ÃgÀ¨sÀzÀæUËqÀ EªÀgÉ®ègÀÆ ¸ÉÃj £À£ÀߣÀÄß ²gÀ¹ ¸ÀPÁðj D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV UÀ¨sÀð¥ÁvÀ ªÀiÁr¹, £ÀAvÀgÀ £À£Àß vÁ¬Ä ªÀÄ£ÉUÉ vÀAzÀÄ ©nÖgÀÄvÁÛgÉ. £ÀAvÀgÀ ¥ÀÄ£ÀB 18 ¢ªÀ¸À ©lÄÖ ¨sÀfAUï UÉÆÃ¥ÀÄ ¥Ánî EªÀgÀ ªÀÄ£ÉAiÀÄ°è F ªÉÄÃ¯É ºÉýzÀ ªÀåQÛUÀ¼À£ÄÀ ß PÀgɬĹ «ÄÃnAUï ªÀiÁrgÀÄvÁÛgÉ. ¸À¢æ «ÄÃnAUï£À°èAiÀÄÆ ¸ÀºÀ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÀ £À£ÀUÉ 18 ªÀµÀð vÀÄA§®Ä 6 wAUÀ¼ÀÄ ¨ÁQ EzÀÄÝ, ¸À¢æ 6 wAUÀ¼ÀÄ

- 28 -

DzÀ £ÀAvÀgÀ £À£ÀߣÀÄß ªÀÄzÀĪÉAiÀiÁUÀÄvÉÛÃ£É CAvÁ ºÉýgÀÄvÁÛ£É. CµÉÖà C®èzÉà ¸À¢æ «ÄÃnAUï£À°è UÀtåªÀQÛUÀ¼ÁzÀ UÀt¥Àw ¸ÀvÀå£ÁgÁAiÀÄt ¥Ánî ªÀÄvÀÄÛ ¸ÀwñÀ ²æÃzsÀgÀ £ÁAiÀÄPÀ EªÀgÀÄ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÀ EvÀ¤UÉ HgÀÄ ©lÄÖ ºÉÆÃUÀ®Ä ªÀiÁvÀ£ÁqÀÄwÛzÀÝ «µÀAiÀÄ £À£ÀUÉ ªÀÄvÀÄÛ £À£Àß vÁ¬ÄUÉ w½zÀÄ §A¢gÀÄvÀÛzÉ. ¸À¢æ «ÄÃnAUï£À°è ºÉýzÀAvÉ 6 wAUÀ¼ÀÄ DzÀgÀÆ ¸ÀºÀ «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÀ ªÀÄvÀÄÛ F ªÉÄÃ¯É ºÉýzÀ ªÀåQÛUÀ¼ÀÄ §AzÀÄ E°èAiÀĪÀgÉUÀÆ «ZÁj¹gÀĪÀÅ¢®è. PÁgÀt ªÉÄÃ¯É ºÉýzÀ ªÀåQÛUÀ¼ÀÄ £À£ÀߣÀÄß «£ÁAiÀÄPÀ ¸ÀtÄÚ UËqÀ EvÀ£ÉÆA¢UÉ ªÀÄzÀÄªÉ ªÀiÁqÀÄvÉÛÃ£É CAvÁ ºÉý £ÀA©¹ ªÉÆøÀ ªÀiÁrzÀÄÝ, ¸À¢æAiÀĪÀgÀ «gÀÄzÀÞ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉƼÀî®Ä ¥Áæyð¹PÉƼÀÄîvÛÉãÉ."

41. The victim became pregnant due to the alleged act

of the accused No.1 Exhibit P26-case sheet maintained by

Pandit General Hospital, Sirsi reveals that the victim was

admitted to hospital on 23rd January 2014 with history of

Amenorrhea. As on the date of admission of victim to the

hospital, i.e. on 23rd January 2014, the victim was minor.

However, the medical officer has not obtained permission from

parents or guardian of victim. The Doctor who has treated the

victim is examined as PW19. He has deposed in his evidence

that he has taken consent of relative of PW1. Further, he has

deposed that at the time of examination of victim, he did not

know whether victim was minor or not. But he has confirmed

that the victim was major at the time of examination in the

- 29 -

hospital. He has also produced Exhibit P8, the abortion register.

Exhibit P8(a) is the entry pertaining to the victim in which the

age of victim is shown as 18 years and one Bharathi has affixed

her signature. It is also stated that it is a 'missed abortion'.

When PW1 was admitted to the hospital with the history of

amenorrhea, the concerned medical officer had to comply with

the procedure of 164A of Code of Criminal Procedure. The said

provision reads as under:

"164A. Medical examination of the victim of rape:-

(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine

- 30 -

her person and prepare a report of his examination giving the following particulars, namely--

(i) the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail,

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

- 31 -

Explanation: For the purpose of this section, "examination" and "registered medical practitioner" shall have the same meanings as ins section 53."

42. In the present case, PW19--Medical officer

who examined the victim has failed to comply with the

mandatory requirements prescribed under Section 164A of the

Code of Criminal Procedure, 1973. This section lays down

specific procedures to be followed during the medical

examination of a victim of sexual assault, including

documenting the name of the person accused of committing the

offence, obtaining the consent of the victim for medical

examination, preparing a detailed medical report, and

forwarding such report without delay to the investigating

officer. However, neither in Exhibits P26 nor P5, which are the

case sheet and medical records prepared by PW19, is there any

mention of the name of accused No.1. This omission is

significant and undermines the credibility and evidentiary value

of the medical examination. Moreover, PW1--victim has not

disclosed the name of accused No.1 to the medical officer at the

time of examination. The hospital records also do not contain

any reference to accused No.1, which raises serious doubts

about the veracity of the allegations. Further, the investigating

- 32 -

officer has not recorded any explanation from PW19 regarding

the non-compliance with Section 164A, nor has the prosecution

furnished any justification for this procedural lapse. This failure

to adhere to mandatory procedural requirements casts doubt

on the integrity of the medical evidence and weakens the

prosecution's case. In addition, the prosecution has not

produced any other legally admissible or credible evidence to

support the charges under Sections 4, 6, 10, and 17 of the

POCSO Act. In the absence of corroboration from medical or

documentary evidence, and with key procedural safeguards

ignored, the prosecution's case under the POCSO Act stands on

tenuous ground.

43. As regards the allegations under Sections 376, 412,

509, and 372 read with Section 34 of the Indian Penal Code, a

thorough and critical analysis of the entire body of evidence

presented before the Court reveals a clear absence of

substantive and reliable material to establish the commission of

these offences. The testimony of the prosecution witnesses, in

conjunction with the documentary evidence produced, does not

disclose the essential ingredients required to attract the

provisions of these sections. The trial court has meticulously

examined the evidence on record and has come to a reasoned

- 33 -

conclusion. It has rightly found that the evidence is insufficient

and lacks the probative value necessary for conviction. The

findings of the trial court are based on a sound appreciation of

facts, correct application of legal principles, and a judicious

assessment of witness credibility. There is no perversity or

illegality in the trial court's reasoning or conclusion. Hence, the

impugned judgment deserves to be upheld, as it is both legally

sustainable and factually grounded in the evidence available on

record.

44. Even on re-appreciation, re-evaluation and

reconsideration of the entire evidence on record, we do not find

any error or legal infirmity or illegality in the impugned

judgment and order of acquittal. Hence, we answer Point No.1

in the negative.

Regarding Point No.2:

45. For the aforestated reasons and discussions we

proceed to pass the following:

ORDER

(i) Appeal dismissed;

- 34 -

(ii) The judgment and order of acquittal dated 07th

September 2020 passed in Special Case No.31

of 2015, by the Additional District & Sessions

Judge, FTSC-1, Uttar Karnataka Karwar (Special

Court for trial of cases filed under POCSO Act), is

confirmed;

(iii) Registry to send the trial court records along

with the copy of this judgment to the concerned

Court.

Sd/-

(SACHIN SHANKAR MAGADUM) JUDGE

Sd/-

(G BASAVARAJA) JUDGE

AM CT-CMU