Karnataka High Court
State Of Karnataka vs Nagaraju on 10 December, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.622 of 2016
BETWEEN
STATE OF KARNATAKA
BY PAVAGADA POLICE STATION,
TUMAKURU DISTRICT,
REPRESENTED BY SPP.,
HIGH COURT OF KARNATAKA,
BENGALURU-561 202.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP.)
AND
NAGARAJU,
S/O. NARASIMHAPPA,
AGED ABOUT 25 YEARS,
RESIDENT OF DOMMATAMARI VILLAGE,
PAVAGADA TALUK,
TUMAKURU DISTRICT - 561 202.
...RESPONDENT
(BY SMT. K. NALINA, ADVOCATE FOR
SRI S.K. VENKATA REDDY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) AND
(3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO GRANT LEAVE
TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
30.09.2015 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, TUMAKURU IN SPECIAL CASE No.458/2014, THEREBY
2
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 366(A) AND 376 OF THE INDIAN PENAL
CODE AND SECTIONS 4 AND 6 OF THE POCSO ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
NATARAJAN, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State against the order of acquittal dated 30.11.2015 made in Spl.Case No.458/2014 on the file of the III Additional District and Sessions Judge, Tumakuru, for the offences punishable under Sections 366A and 376 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').
2. The case of the prosecution is that the Pavagada Police filed the charge sheet against the accused for the aforesaid offences on the complaint filed by PW.1-Ramanjinamma, the mother of the victim girl as per Ex.P.1. It is alleged in the complaint that her daughter was abducted by the accused Nagaraju on 03.06.2014 under the guise of marrying her. In spite of searching for her daughter, they could not find her. Then on 13.06.2014 at 12.00 Noon her daughter victim came back to the house and informed that the accused took her away under the guise of marrying her 3 and kept her in the house of one Obalesh and forcibly committed rape on her. The complainant also stated that her daughter is a minor girl aged about 17 years. Based upon the complaint, the jurisdictional Police registered the case in Crime No.86/2014 for the offences punishable under Sections 366A and 376 of IPC and Sections 4 and 6 of the POCSO Act. Later, the accused was apprehended. After completion of the investigation, the Police filed the charge sheet against the accused for the aforesaid offences and charges were framed for the offences punishable under Sections 366A, 376, 344 of IPC and Sections 4 and 6 of the POCSO Act. The accused denied all the charges. He pleaded not guilty and claimed to be tried.
3. In order to prove the case, the prosecution, in all examined 19 witnesses as PWs.1 to 19, got marked 19 documents as per Exs.P.1 to P.19 apart from material objects MOs.1 to 19. After completion of the evidence, the statement of the accused under Section 313 of Cr.P.C. was recorded. The incriminating evidence appeared against him were read over and explained to the 4 accused. The case of the accused was one of total denial but not entered into any defence.
4. After hearing the arguments of learned counsel for the parties, the learned Sessions Judge held the accused as not guilty of any of the offences mentioned in the charges framed against him and ultimately, acquitted the accused. Hence, the State has preferred the present appeal.
5. We have heard Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the State and Smt. K.Nalina, learned counsel appearing for Sri S.K.Venkata Reddy, learned counsel for the respondent-accused.
6. Learned Additional State Public Prosecutor has contended that the impugned judgment and order of acquittal recorded by the learned Sessions Judge is contrary to the law, fact of the case and evidence on record. He would further contend that the judgment of the learned Sessions Judge is erroneous, improper and it has reached wrong conclusion resulting in substantial miscarriage of justice, therefore, liable to be set aside. He would 5 further contend that the evidence of PW.1-complainant and PW.2- victim were disbelieved by the trial Court which is against the evidence on record. Learned Sessions Judge stick on to the minor technicalities which is against the judgment of this Hon'ble Court as well as the Hon'ble Supreme Court, therefore, the order of acquittal is liable to be reversed. He would further contend that the age of the victim is about 17 years 2 months and as per the POCSO Act, if any of the victim girl is aged below the age of 18 years, she is treated as minor girl. Such being the case, the finding of the learned Sessions Judge that she is capable of understanding the consequences in her life is not correct. The offence is heinous one and the accused has exploited PW.2-victim girl. The evidence of PW.2-victim girl has been corroborated with the evidence of PW.15- the doctor who treated the victim girl, therefore, the finding of the trial Court is not sustainable. Further, he would contend that the evidence of PW.1-complainant, PW.2-victim girl and PW.6- neighbour of the complainant have categorically stated about the overt act against the accused which connects the accused with crime but, the learned Sessions Judge passed the acquittal order on erroneous grounds. The learned Sessions Judge was manifestly 6 unjust and unreasonable and ignored the evidence and misread the material evidence and documents. Therefore, the judgment of acquittal is liable to be set aside and prayed for convicting the accused.
7. Per contra, learned counsel appearing for the respondent-accused has supported the judgment of acquittal passed by the trial Court and contended that the evidence of PW.2 is not trust worthy to convict the accused. According to her evidence, she was staying in the house of PW.10-Obalesh for 10 days and whenever PW.10 went out of the house on work, the accused had forcibly intercourse with her, but she has not tried to escape from the accused and also not tried to complaint PW.10- Obalesh or PW.11-Ramya, wife of Obalesh. Even after returning from the house of PW.10, she has not lodged a complaint to the Police and there is an inordinate delay in lodging a complaint, even otherwise, the medical evidence is not supported the oral evidence of PW.2. There are no spermatozoa found in the material objects. That apart as per the evidence of PW.15-doctor, there is no recent intercourse on the victim girl which clearly falsifies the evidence of 7 the prosecution witnesses. PW.1-mother of the victim has not chosen to lodge a complaint when the victim girl went missing. But she kept quite for 10 days and thereafter, again 5 days delay in lodging the complaint. She does not know the contents of Ex.P.1- complaint. The medical evidence and the oral evidence are contradictory with each other. All other witnesses have turned hostile and not supported the case of the prosecution. Therefore, by considering all the evidences, the trial Court has rightly held the accused as not guilty of any of the offences mentioned in the charges framed against him and acquitted the accused. The judgment of the trial Court is not required to be reversed and there is no perverse finding by the trial Court. Hence, prayed for dismissing the appeal.
8. Upon hearing the arguments of the learned counsel for the parties, the point that arises for our consideration is :
"Whether the State has made out a ground to interfere with the judgment of acquittal, acquitting the accused for the offence punishable under Sections 366A and 376 of IPC and Sections 4 and 6 of the POCSO Act?"8
9. In order to re-appreciate the evidence of the prosecution, it is necessary to have a cursory look into the evidence adduced by the prosecution before the trial Court which is as under:
a) PW.1-Ramanjinamma is the mother of the victim and complainant has deposed that the victim is her daughter and the accused is known to her. About 5 months back, the accused abducted her daughter forcefully for marrying her and retained for
10 days in his house and she came to know the same from her daughter PW.2. Hence, she has lodged complaint to the Police as per Ex.P.1. However, in the cross-examination, she has stated that she do not know the contents of Ex.P.1-complaint and she has not lodged any complaint to the Police or any other persons when her daughter was found missing from the house for 10 days and she further admits that she made marriage proposal of her daughter with her nephew.
b) PW.2-the victim girl has deposed that when she was studying in PUC, the accused approached her near the college and insisted her to marry and also used to follow her. When she 9 intimated the same to her family members, they stopped her from going to college. Subsequently, the accused used to visit her house when she was alone and committed forceful intercourse with her by promising to marry her. She further deposed that on 03.06.2014, when she went for fetching water in a public tap, the accused took her to a bus stand and from there, he took her to his uncle's house i.e, PW.10-Obalesh at Yelahanka and the accused used to have intercourse for 10 days in the house of the Obalesh whenever the said Obalesh and his wife were out of the house. The accused also told that he will marry her but, he did not marry. Hence, she came back to her house and informed to her mother about the same. She has also given statement to the Police as well as to the Doctor. She has undergone medical test. She further says that the Police visited the spot, seized the bed sheet and mat as per M.Os.1 and 2 under the Panchanama as per Ex.P.5. This witness also partly turned hostile and denied the preparation of panchanama as per Ex.P.5 by the Police. In the cross-examination, she has admitted that when she went along with the accused and while accompanying him near the public tap, so many people were present and she has not raised any hue and cry and further admits that when she traveled from 10 her village to Hindupur and Hindupur to Yelahanka, Bengaluru by bus, there were so many passengers traveling in the bus and she has not chosen to make any complaint against the accused and she further admits that near Hindupur Bus stand, there were Police present but, she has not made any attempt to inform them. Further, she has admitted that when she went to the house of PW.10-Obalesh and PW.11-the wife of PW.10 and stayed for 10 days in the house but, she did not complain anything to them and also there were neighbours near the house of PW.10, she has not made any attempt to escape from the house or made any complaint to the neighbours. Further she has admitted that her marriage engagement was performed by her parents with the son of her uncle and her uncle's son is an handicapped, not having one ear. However, she has denied the suggestion that she is not interested in marrying her uncle's son therefore, she went to her relatives house to stay for sometime and further denied that the accused not abducted her and committed any intercourse with her.
c) PW.3-Mylarappa who is said to be the witness who seen the victim with the company of the accused. He has turned hostile 11 and not supported the case of the prosecution and he has stated in examination-in-chief that he has seen the victim on 03.05.2014 in the bus stand at 7.00 a.m., but denied the presence of the accused. But as per the prosecution case, the accused alleged to have abducted the victim on 03.06.2014, therefore, the evidence of this witness is not useful to the prosecution case.
d) PW.4-Manjunatha and PW.5-Govindamma who are the witnesses who saw the accused following the victim and seen the victim in the custody of the accused. Both of them have turned hostile and not supported the case of the prosecution.
e) PW.6-Nagamani has stated that about six months back when she was cleaning vessels in front of her house, the victim came near her house for fetching the water. At that time, the accused met the victim girl and both of them went towards the bus stand and she further stated the accused took the victim for marrying the her but not married. In the cross-examination, she has stated that the public tap is situated near the house of one Govindamma and she further stated that by sitting near her house, she cannot able to see the public tap and is not possible to see any 12 person who comes near the tap for fetching the water. She has also admitted that she has not questioned the accused as to where he is taking the victim girl. She has also admitted that the engagement of the victim with her uncle's son was completed and the said person doesn't have one ear.
f) PW.7-Nagaraju and PW.8-Narasimhappa are the panch witnesses to Ex.P.5. Both of them stated that the Police came and obtained their signature but, they do not know its contents. PW.8 though supported but he has not stated about the recovery of M.Os.1 and 2 under the panchanama as per Ex.P.5. Therefore, evidence of these two witnesses is not useful to the prosecution case.
g) PW.9-Krishnappa is the panch witness to Ex.P.4. He has stated that the police visited the house of CWs.1 and 2 and seized bed sheet and mat and in the cross-examination, he has admitted that CW.1 and her husband are workers working in his construction field. He has supported the case of the prosecution. 13
(h) PW.10-Obalesh and PW.11-Ramya who is uncle and aunt of the accused in whose house the accused stayed the victim for 10 days. Both of them turned hostile and not supported the case of the prosecution.
(j) PW.12-Ramachandrappa is land lord of the house of PW.10 also turned hostile and not supported the case of the prosecution.
(k) PW.13-Srinivas and PW.14-Govindaraju are panch witnesses to Ex.P.12 for the seizure of sealed articles. Both of them turned hostile and not supported the case of the prosecution.
(l) PW.15-Dr.C.N.Mahalakshmi who examined the victim girl on 19.06.2014 and she has collected Cervical smear, Vaginal Swab, Vaginal Smear, Pubic hair and Cervical Swab and sent the specimens for FSL for chemical examination. She issued the report as per Ex.P.2. She has also stated that she has given opinion as per Ex.P.16 and she has identified M.Os.3 to 7 are the seized articles which were sent for FSL. In the cross-examination, she has admitted the dates which were mentioned in the Ex.P.2 are correct 14 and the hymen rupture can be caused due to inserting finger or any other things. However, it has mentioned in the Ex.P.2 that there was hymen rupture and there is a possibility of the victim subjected to sexual intercourse but there is no external injuries on the private part of the victim and she was not able to say what could be the time gap and last intercourse from the date of medical examination.
(m) PW.16-M.M.Pasha, Police Inspector took up the investigation and referred the victim to the hospital.
(n) PW.17-Bhagyalakshmi who accompanied PW.2-victim for the medical examination.
(o) PW.18-Kumarswamy, ASI received the complaint from PW.1 and registered a case in Crime No.86/2014 and issued FIR. Thereafter, he sent the victim to the Government Hospital, Pavagada and thereafter, she was sent to Tumakuru Government Hospital. His evidence is only in respect of setting the law into motion.
(p) PW.19-Banuprasad, CPI who is an Investigating Officer has filed charge-sheet after completion of the investigation. 15
10. Based upon the evidence of PW.15-doctor, the trial Court disbelieved the evidence of PW.2 as there is no recent sexual intercourse on the victim and she is capable of understanding as her age was more than 17 years and she has not made any complaint through out i.e., from her house to the house of PWs.10 and 11 until her return to her house after 10 days. Hence, the trial Court not found accused guilty and acquitted.
11. We have given our anxious consideration on the evidence led by the prosecution. Except the evidence of PW.2- victim girl, the evidence of other witnesses are not useful to the prosecution case, since, all the panch witnesses have turned hostile. Though PW.6-Nagamani has stated that when PW.2 came near the public tap to fetch the water, near the house of Govindamma, the accused took the victim towards bus stand under the guise of marriage. But in her cross-examination, she has categorically admitted that the public tap was in front of the house of Govindamma and her house is situated back side to the house of Govindamma and one cannot see the person who comes to the public tap for fetching water from her house. The said 16 Govindamma-PW.5 also turned hostile and it is not possible for PW.6 to see the person who came in front of the house of Govindamma, therefore, her evidence is not possible to accept and not useful to the case of the prosecution.
12. PW.1 who is the mother of the victim has stated that her daughter was found missing for 10 days from the house and after 10 days the victim came and told that the accused took her and had forceful intercourse with her. But she has not chosen to lodge any missing complaint either to the police or any other person. Even otherwise she does not know the contents of Ex.P.1 and her categorical admission that marriage engagement of PW.2 was already completed with her nephew and it was suggested by the defence also. The bridegroom do not have one ear and the victim was not interested to marry her uncle's son. Therefore, she left the home. There is probability in the suggestion made by the learned counsel for the accused, when the victim was proposed to marry her uncle's son who is not having one ear and non filing a missing complaint for 10 days by PW.1 creates a doubt about the story of the prosecution and after returning to the house by PW.2 17 on 13.06.2014, this witness had not chosen to file any complaint to the Police or to any of her relatives, but her complaint was lodged only on 18.06.2014. There is inordinate delay in lodging the complaint. It is well settled that if any delay in lodging the complaint in a rape case, is not always fatal to the prosecution case. But here in this case, the victim was found missing from the house from 03.06.2014 but not lodged any complaint for almost 10 days and PW.1 had not tried to search the victim girl. That apart, when PW.2 returned back on 13.06.2014 and informed about the sexual assault by the accused even then, they have not chosen to lodge any complaint for another 5 days. Therefore, the veracity of the evidence of this witness is not acceptable without the supporting evidence of the victim girl.
13. It is well settled by the Hon'ble Supreme Court in the catena of the cases that conviction can be based solely on the evidence of the victim girl, if it is trustworthy and credible even without any corroboration.
14. On perusal of the evidence of PW.2, she has stated before the Police that the accused forcibly took her near the house 18 of PW.5-Govindamma when she was fetching water in a public tap. She has sated that there were so many people present near the tap, but she has not made any complaint. Thereafter, both of them went to the bus stand and from there they went to Hindupur and from Hindupur to Yelahanka, Bengaluru to the house of PWs.10 and
11. She has not complained about the accused either for kidnapping or committing rape. She is said to be stayed for 10 days and all the 10 days, the accused had forcibly intercourse with her, but she has not intimated the same to PWs.10 and 11. That apart, PW.2 has not informed anybody against the accused even to PW.12-the house owner who is residing apart from other neighbours. After returning from the house of PW.10, she has narrated the same to her mother but not made an attempt to complain any persons against the accused and her categorical admission was that her marriage engagement was completed with her uncle's son who does not have one ear and she was not interested in marring his uncle's son. Though she has denied the suggestion that the admitted fact by PWs.1, 2 and 6 that her uncle's son do not have one ear and her engagement was already completed with him, there is every probability that she could have left the house, as she was not 19 interested in marring her uncle's son. Even otherwise, her evidence is not trustworthy and credible to accept that the accused who was continuously had intercourse with her forcibly but, she has not made any complaint to any persons either to PWs.10 to 12 or any other persons. When the evidence of PW.2 is shaky, then it is necessary for the corroboration of medical evidence. PW.15- Dr.Mahalakshmi has stated that the rupture of hymen could be caused due to inserting finger and some other things and on perusal of Ex.P.2-the medical report which shows that there is possibility of sexual intercourse on the victim girl, but there is no injuries on the private part or on the body of the victim and she was not able to say what was the last time gap between the examination and the last intercourse which shows that there is no recent intercourse on PW.2. Even otherwise, in Ex.P.2, PW.2 has made history of sexual assault as 4-5 times and last intercourse was on 15.06.2014 and her last LMP was on 16.06.2014.
15. On perusal of the statement made by the victim before the doctor that she has undergone intercourse 4-5 times and last intercourse was on 15.06.2014 but the entire prosecution story and 20 as per the complaint, PW.2-victim was returned to the house on 13.06.2014 and she has stated that the accused had intercourse with her everyday for 10 days and in examination-in-chief, she went again on the said statement that the accused had intercourse with her in her house when she was alone even prior to 03.06.2014 which shows that she has given different versions in different stages. In one stretch in her complaint, she has stated that the accused abducted her on 03.06.2014 and went to the house of PW.10 and had intercourse. But in the evidence, she improved her version that the accused had intercourse with her in her house when she was alone and thereafter, accused took her to Bengaluru for marrying her but not married. The veracity of the evidence of PW.2 is not trustworthy to accept without corroboration and the medical evidence of PW.15 and Ex.P.2 also goes against her.
16. As per Ex.P.16, opinion of FSL report, there is no seminal stains detected in any of the material objects either on the clothes of the accused or on the clothes of the victim, the mat, bed sheet or on M.Os.3 to 7 i.e., Cervical smear, Vaginal Swab, Vaginal Smear, Pubic hair and Cervical Swab. Absolutely, there is no 21 medical evidence to support the evidence of PW.2 as she was subjected to the sexual assault in the hands of the accused. Exs.P.2, P.16 and evidence of PW.15-Doctor negatived the story of the prosecution that the accused had intercourse with the victim. The evidence of PW.2 is totally unbelievable and not trustworthy to accept without any medical corroboration. But medical evidence also not corroborated with the evidence of PW.2 and evidence of PW.2 also not acceptable. The conduct of PW.1 for not lodging any missing complaint for 10 days and after arrival of PW.2-victim, again delay of 5 days in lodging complaint and fixing the marriage of PW.2 with handicapped person which probabilise the defence that she might have gone out of the house to escape from the marriage. Apart from that non supporting of the story of abduction and detention by PWs.10 to 12 and hostility of all the other witness are all creates serious doubt about the veracity of the story of the prosecution. Therefore, the benefit of doubt shall be extended to the accused and he is entitled for acquittal.
17. The trial Court after considering the material on record has rightly acquitted the accused. We do not find any perversity in 22 the findings of the trial Court while acquitting the accused which call for any interference by this Court. Accordingly, we answer the point in the negative holding that the State has not made out a ground to interfere with the judgment of acquittal passed by the trial Court.
18. For the aforesaid reasons, the appeal is dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE mv/GBB