Karnataka High Court
State Of Karnataka vs Somanath Bhairappa Bagali on 24 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
Crl.A.No.100019/2018
BETWEEN:
STATE OF KARNATAKA,
REP.BY THE POLICE INSPECTOR,
KATAKOL POLICE STATION,
BELAGAVI DISTRICT,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
.. APPELLANT
(BY SRI.V.M.BANAKAR, ADDL.SPP)
AND:
SOMANATH BHAIRAPPA BAGALI,
AGE: 28 YEARS, OCC: DANCE TEACHER,
R/O LOHAGANVI TALUK, DIST: BIJAPUR.
.. RESPONDENT
(BY SRI.A.A.MULWADMATH, ADV.)
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C.SEEKING TO GRANT LEAVE TO APPEAL AND TO SET ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED
04.10.2016PASED BY THE III ADDL. DISTRICT AND SESSIONS &
SPECIAL JUDGE, BELAGAVI (POCSO) IN S.C.NO.313/2013 AND
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 366(A), 376 AND 506 OF IPC AND
UNDER SECTIONS 4 AND 6 OF POCSO ACT.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, RAJENDRA BADAMIKAR, J.
DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed this appeal challenging the judgment of acquittal dated 04.10.2016 passed by the III Additional District & Sessions & Special Judge, Belagavi (POCSO) and (SC/ST (POA) in S.C.No.313/2013 whereby the learned Special Judge has acquitted the accused/respondent herein for the offences punishable under Sections 366(A), 376 and 506 and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for short).
2. For the sake of convenience, parties shall be referred with the original ranks occupied by them before the trial court.
3. The brief factual matrix leading to the case are as under:
That the victim girl was aged about 13 years and was studying in 7th standard. That the 3 accused/respondent herein was her dance teacher and taking advantage of such a situation on 21.04.2013 at 10.00 a.m., the accused induced the victim to accompany him, who was staying in the house of C.W.8 Ratnavva by falsely representing that there is a dance programme at Bijapur and thereby having knowledge that the victim was a minor kidnapped her out of lawful guardianship of her parents. It is also alleged that from 21.04.2013 to 25.04.2013 at different places, such as, Baliga village, Mucchandi village and again Baliga village, he had forcible sexual intercourse with the victim girl against her will and under the false promise of marriage having knowledge that she was a minor. According to the prosecution, in between when the victim girl tried to contact her parents, he threatened her by giving life threat. Subsequently, the father of the victim girl has lodged the complaint in this regard and having knowledge of the complaint, the accused has left the victim girl in Zalki cross by paying Rs.300/- and from there, the victim girl came to Mudhol in a bus and 4 contacted her father who came to Mudhol and took the victim girl to his place. Thereafter, she was taken to the police station wherein the complaint came to be lodged in crime No.138/2013 for the offence punishable under Section 366(A) of IPC.
4. Further, during the course of investigation, it is revealed that accused has committed aggravated sexual assault on the victim girl and as such, after completing the investigation, the charge sheet was laid for the offence punishable under Sections 366(A), 376, 506 of IPC r/w Section 4 and 6 of POCSO Act. The accused was later arrested and was remanded to judicial custody. The Special Judge has taken cognizance of the offences alleged considering sufficient material placed by the prosecution. Copies of the prosecution papers were also furnished to the accused, who was represented by defence counsel. Then charge was framed against the accused for the offences punishable under Sections 363, 366, 376(2)(f), 376(2)(k), 376(2)(n), 376(2)(i), 376 r/w 5 Section 417, 506 of IPC and Sections 4 and 6 of POCSO Act and the same was read over and explained to the accused and accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, prosecution has examined in all 13 witnesses as P.Ws.1 to 13 and also placed reliance on 22 documents marked at Exs.P1 to P22 and 14 material objects at M.Os.1 to 14. During the cross-examination of P.W.4, portion of the statement recorded under Section 161 by the investigating officer is got marked as Ex.D1 by the defence counsel.
6. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. is recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial. However, it is stated that he and victim girl were in love with each other and intended to marry each other, but there was no physical relationship between them. 6 However, he did not choose to lead any oral or other documentary evidence in support of his defence.
7. After having heard the arguments advanced by the public prosecutor as well as defence counsel, the learned Special Judge came to the conclusion that prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt including the age of the victim that she is minor and thereby acquitted the accused.
8. Being aggrieved by this judgment of acquittal, the State has filed this appeal.
9. Learned Additional SPP would contend that the victim is minor and this is corroborated by Exs.P20 and 21 and when she is aged about 13 years, her consent becomes irrelevant. He would also contend that accused took the victim girl under the guise of dance competition as he was a dance teacher and committed aggravated sexual assault on her. He would further contend that observations of the trial court that victim girl has 7 voluntarily accompanied the accused has no relevancy in view of the fact that victim girl is a minor and her consent cannot be taken into consideration. He would also contend that the evidence of the complainant is corroborated by the evidence of the victim girl who is examined as P.W.4. He would further contend that under Section 35 of the Indian Evidence Act, 1872, the entries in public records are admissible and as such, the entries in Ex.P21 are admissible regarding date of birth of the victim girl which was entered at an undisputed point of time. Hence, he would contend that the evidence clearly discloses that the victim girl was found in the custody of the accused and the evidence of the victim girl does establish that there was sexual assault on her and as such, he would contend that the judgment of the trial court is erroneous and perverse, which has resulted in miscarriage of justice. As such, he sought for allowing the appeal by setting aside the judgment of acquittal by convicting the accused/respondent herein. 8
10. Per contra, learned counsel for the respondent/accused would support the judgment of the trial court contending that age of the victim girl itself is a doubtful aspect. He would also invite the attention of the court that radiological report discloses her age as between 16-18 years and the age in Ex.P21 is entirely different, while P.W.1 admitted in the cross-examination that his daughter was born in 1995 and the date was put only on assumption. He would also contend that on perusal of statement of the victim under Section 164 of Cr.P.C., it is evident that it is not corroborated with her evidence before the court, as life threat by using knife is not a case made out. He would further contend that provision of Section 35 of the Indian Evidence Act cannot be made applicable in view of the fact that P.W.1 himself has admitted that entries were made on the basis of presumption in the school by endorsing the age of the victim. He would contend that all the three reports regarding age of the victim are inconsistent and as such, the prosecution ought to have secured scientific evidence 9 to ascertain the exact age of the victim girl and the prosecution has failed to do so. Hence, he would contend that the victim is not a minor and other evidence discloses that victim has voluntarily accompanied the accused and she is a consenting party. As such, he would submit that the trial court has considered all these aspects in detail and arrived at a just decision and as such, he would seek for dismissal of the appeal by confirming the judgment of acquittal passed by the trial court.
11. We have heard both the counsels at length and we have given our anxious consideration to the arguments advanced as well as documentary evidence produced before us in the form of records of the trial court.
12. Now the following point would arise for our consideration:
"Whether the judgment of acquittal passed by the trial court is perverse, 10 erroneous and suffers from infirmity so as to call for any interference by this court?"
13. The prosecution has charge sheeted the accused for the offences punishable under Sections 363, 366, 376(2)(f), 376(2)(k), 376(2)(n), 376(2)(i), 376 r/w Section 417, 506 of IPC and Sections 4 and 6 of POCSO Act.
14. P.W.1-Mahantesh D.Yadwadmath is the complainant and father of the victim. In his evidence, he deposed that accused is a dance teacher of his daughter and he is working in Bengaluru and on 21.04.2013 at 2.00 p.m. he received a telephone call from his wife stating that his daughter victim girl had been to Chippalkatti fair and did not return. Immediately, he returned to the Kunnal village on the next day and on enquiry, it is revealed that accused/dance teacher was also found missing. He further deposed that though he intended to give a complaint immediately, the elders have advised him to wait for few days as the reputation of his daughter and family is involved. As such, after 11 waiting for two days, on 25.04.2013 he lodged a complaint as per Ex.P1 regarding his daughter is being found missing and kidnapped by the accused and FIR came to be issued for the offence punishable under Section 366A of IPC. His further evidence discloses that on 23rd and 24th of April, 2013, his daughter contacted him over telephone asserting that she is quite ok. On 27.04.2013 his daughter called him from Mudhol and he went to Mudhol bus stand and secured her and then she was produced before the police wherein panchanama and other proceedings have taken place. In his cross- examination also, he has specifically asserted that on 23rd and 24th his daughter contacted him, but this fact was not revealed in the complaint. He deposed in his further cross-examination that his daughter was born in January, 1995. He further admitted that his daughter was admitted to the school after long delay. He has also admitted that he has not obtained birth certificate of his daughter and the date of birth of his daughter is 02.07.2000 was given by him. He denied the suggestion 12 that victim girl is aged about 19 years. However, his evidence does establish that there is some confusion regarding age of the victim girl. He admits that date of birth was not entered in concerned records and he has given information while admitting the victim girl to the school about her age.
15. P.Ws.2 and 3 are the mahazar witnesses and their evidence does not have much relevance in this case.
16. P.W.4 is the material witness who is the victim girl. She deposed that about two years back she was staying in Kunnal village in the house of her maternal grandmother and her father used to visit her occasionally and she was studying 7th standard. She has further deposed that on 21.04.2013 the accused came to her house at 10.00 a.m. and took her on the ground that there is a dance competition in Bijapur. She has further stated that from Kunnal village they went to Yadwad village, from there to Mudhol and from Mudhol to 13 Chadchan and then to Baliga village in the evening and halted in the house of aunt of the accused. She further deposed that they went to Ravalgundi-Muchhandi village and stayed in the house of one Ravi from 22.04.2013 to 25.04.2013. On 26.04.2013, they returned to Baliga village and they stayed at night. She has also deposed that in all these three places, the accused has committed sexual assault on her and on 27.04.2013 when it is revealed that her father has lodged a complaint, accused paid her Rs.300/- with a direction to go to village and she came to Mudhol from Baliga village and then contacted her father on mobile and her father took her to Kunnal village. Her evidence completely silent regarding the act of criminal intimidation. In her examination-in-chief itself she has specifically asserted that her date of birth is 17.07.2000, but as per the prosecution and her date of birth as per Ex.P21 is 02.07.2000. This discloses that even she does not know her date of birth. She has also admitted that she was produced before the Magistrate wherein her statement came to be recorded as per P12. 14 She has also specifically stated that she voluntarily accompanied the accused in order to attend a dance programme. In the cross-examination, the victim has admitted that from the beginning she and accused were exchanging mobile messages. She is unable to say her mobile number, but she specifically states the mobile number of the accused as 9902990867. This conduct of the victim discloses that she was regularly in conversation with the accused. Further, her cross- examination also reveals that she was in love with the accused. Her cross-examination also discloses that she had not given any statement as per Ex.D1 before the investigating officer. She claims that from 21.04.2013 to 27.04.2013, her father called her on mobile regularly, but she switched off the mobile. She claimed that in this period, she had talked to her parents only once. She also admitted that accused did not threatened her at any point of time. She did not either admit or disputed regarding statement given before the investigating officer on 30.04.2013. In her earlier statement, she has 15 admitted that she has not given any statement regarding accused committing sexual assault on her. However, she claimed that in subsequent statements she has stated so. She has also admitted that on 28.04.2013, she has given a statement that accused has not committed any sexual assault against her.
17. Apart from that, in further cross-examination she deposed that while she was giving statement under Section 164 of Cr.P.C., her grandmother and police were present. Though she claims that she has given statement voluntarily, but that statement is inconsistent regarding offence under Section 506 of IPC. She admits that she was in love with the accused and both were intended to marry each other. The evidence of this witness discloses that she was a consenting party.
18. P.W.5 is only author of the complaint and his evidence has not much relevance.
19. P.W.6 posed to be one of the star witness in the instant case. In his evidence, he deposed that while 16 he was proceeding on his motorcycle in the cross road, accused and victim girl met him and disclosed before him that they were proceeding to Mudhol for gathering and hence, he picked them on his motorcycle and dropped them in Yadwad bus stand. His evidence discloses that he picked both the accused and the victim girl at a same time and dropped them. But the cross-examination of P.W.4 discloses different thing. She claims that they went independently to Yadwad and upto Yadwad, they did not travel together. Hence, the evidence of P.W.6 in this regard creates doubt in the mind of the court.
20. P.W.7-Dr.Girish B.Yadur, CMO BIMS Hospital, Belagavi and he deposed that on 28.04.2013, the victim girl was produced before him and as per the dentist report her age is between 13-14 years and as per radiological report her age is between 16-18 years and her old hymen was torned. He stated that there was no recent sexual intercourse, but the victim might have exposed to an act like that of sexual intercourse. But his 17 evidence does not establish that she had undergone sexual intercourse. He has also deposed that he has not personally examined the victim girl and his report under Ex.P13 is based as per the experts opinion. He has also admitted in Ex.P13 that there is no reference that hymen was ruptured and he claims that it was referred in summary sheet, but summary sheet was not produced before this court. As such, his evidence regarding the victim undergone any sexual assault becomes doubtful aspect.
21. P.W.12 is the partial investigating officer who was working as ASI in Katkol police station during the relevant period. He admits that the victim has given statement that accused did not take her under the guise of marrying her, but he did not commit any sexual assault on her. When a question was posed to him that, when victim has denied sexual assault, the reason for sending her for medical examination, he claims that victim might not be giving true version and therefore, he 18 sent for medical examination. He claims that on 30.04.2013 again her statement was recorded on the basis of medical report. But he further admits that on 30.04.2013 when further statement of the victim was recorded, the medical report was not yet received and it was received on 11.06.2013 and that clearly discloses that statement of the victim was created subsequently to suit the claim. He has also admitted in his cross- examination that they have not made any attempt to obtain birth certificate from Tahasildar and also admitted that original records were not secured.
22. P.W.13-M.Pandurangayya, is the D.S.P. who was working as CPI in Ramdurg, who has completed further investigation and submitted the charge sheet. In his cross-examination, he admitted that as per radiological report, the age of the victim was 16-18 years and considering this aspect, he did not take any steps to ascertain the specific/exact age of the victim girl by sending her to experts opinion. He has also admitted that 19 he has not even obtained any original school records in this regard. He admitted that in FSL report, it is mentioned that there is no intercourse and he denied that he has recorded further statement of the victim.
23. It is to be noted herein that, accused and victim girl were in love with each other. The evidence also discloses that accused and victim went from Kunnal to Yadwad, Mudhol and other places. It is also not under serious dispute that accused was all along with the victim girl from 21.04.2013 to 27.04.2013. The evidence of the victim girl is inconsistent and contrary which creates doubt regarding genuineness of the case of the prosecution.
24. The entire case of the prosecution is based on the age of the victim. Further, as per Ex.P12, i.e., the statement of the victim girl recorded under Section 164(5) of Cr.P.C., on 21.04.2013 at 10.00 a.m. the accused took her from her house under the guise of dance programme in Bijapur and they went to Baliga 20 village, but in her statement under Section 161 of Cr.P.C., the victim claims that, on that day, she had been to Chippalkattti fair and at 12.00 noon, from there, the accused enticed her and took her to Baliga village under the guise of dance programme. These two stands as to whether the victim girl went from the house or from Chippalkatti fair is not at all certain. Apart from that, victim has denied of giving statement as per Ex.D1 in respect of she returning to her house collecting her dress material, which is the case made out by the prosecution. In the instant case, to prove that the victim has undergone sexual assault, the doctor who has examined the victim should have been examined by the prosecution, but the prosecution instead of examining the said doctor, placed reliance on the evidence of P.W.7- Dr.Girish who has not physically examined the victim, but he claims that his report is based on the report of gynecologist and other experts.
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25. Considering these aspects, it is evident that the victim was in love with the accused and she voluntarily accompanied him. However, whether there was any sexual assault or not is also a doubtful aspect. Apart from that, even her conduct discloses that sexual assault if any, was with her consent, as she has not resisted. However, all these aspects become relevant only in case the prosecution is able to prove the age of the victim as less than 18 years.
26. In this regard, the evidence of the complainant who is the father of the victim girl is very much relevant. He deposed that, his daughter was born in January, 1995 and later on he claims that while admitting her to the school, he has given date of birth as 02.07.2000. However, the victim girl herself claims that she was born on 17.07.2000. Hence, it is evident that date of birth entry in school record as per Exs.P20 and 21 relied on by the prosecution is only on the basis of the statement said to have been given by P.W.1. But he 22 himself admits that his daughter was born in 1995. He has also admitted that his daughter was admitted to the school belatedly. Contrary to this, radiological report discloses the age of the victim girl is between 16-18 years, but the dental report discloses that her age is between 13-14 years. All these are inconsistent and contrary to each other. Considering the admission given by the complainant himself, it is evident that he has quoted date of birth of the victim girl while admitting her to the school on assumption only. These inconsistent statements are fatal to the case of the prosecution.
27. In this context, learned counsel for the respondent/accused has placed reliance on a decision of the Hon'ble Apex Court in the case of Alamelu and Another vs State Represented by Inspector of Police reported in (2011) 2 SCC 385 and invited the attention of this court to the observations made at paragraphs 39 and 40, which reads as under: 23
"39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5.
40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."
28. Hence, in view of the observations of the Hon'ble Apex Court, it is evident that, though Exs.P20 and 21 are admissible in evidence under Section 35 of the Indian Evident Act, the admissibility of the document 24 would not be much evidentiary value to prove the age of the girl in the absence of material on the basis of which the age is recorded. Admittedly, in the instant case, P.W.1 himself has admitted that he has declared date of birth while admitting the victim to the school and further admitted that she was admitted to the school belatedly. When this is the evidence led by the prosecution, it was duty of the investigating officer to collect material evidence as to on what basis the date of entry was made in the school records, but no attempt was made in this regard. The radiological report and dental report and claim of the victim girl as well as P.W.1-complaiant himself are inconsistent and contrary to each other. Under such circumstances, the court cannot rely on Exs.P20 and 21 and their admissibility has no evidentiary value under Section 35 of the Indian Evidence Act, in view of anomalies referred to above.
29. Apart from that, in the case of Jaya Mala v. Govt. of J & K reported in 1982 SCC (Cri) 502, the 25 Hon'ble Apex Court has observed that, one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Further, in the case of Birad Mal Singhvi v. Anand Purohit reported in 1988 Supp. SCC 604, the Hon'ble Apex Court in para 14 has observed that, date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. In the instant case, though P.W.1 was examined in this regard, his evidence discloses that his daughter was born in 1995, which is against the entries made in the school register as per Exs.P20 and 21. As such, Exs.P20 and 21 do not have any evidentiary value and when the prosecution has failed to establish that the victim was minor, question of applying the provisions of POCSO Act as well as offence of kidnapping and sexual assault does not arise at all since evidence discloses that victim has voluntarily accompanied the accused and her consent is also manifest as she was in love with the accused. 26
30. Apart from that, it is also settled law that, when two views are possible, the view taken by the trial court shall not be disturbed by the High Court and view favourable to the accused shall prevail as observed in the case of M. R. Purushotham v. State of Karnataka reported in 2015 SC (Criminal) 139, in the case of Muralidhar @ Gidda and another vs. State of Karnataka reported in AIR 2014 SC 2200 and in the case of State of Kerala Vs. C.P.Rao reported in AIR 2012 SC 2879.
31. Learned counsel for the respondent has also placed reliance on the decisions of the Hon'ble Apex Court in the case of Ghurey Lal vs. State of U.P. reported in (2008) 10 SCC 450 and in the case of Sanwat Singh & Others vs. State of Rajasthan reported in 1961 AIR 715.
32. Considering all these facts and circumstances, it is evident that victim was not minor as on the date of the incident and she was a major and as such, she was a 27 consenting party. The trial court has considered all these aspects in proper perspective and analyzed oral and documentary evidence in detail. The judgment of the trial court does not suffer from any perversity or illegality so as to call for any interference by this court. Under these circumstances, the appeal being devoid of any merit needs to be dismissed. Accordingly, we answer the point under consideration in the negative and proceed to pass the following:
ORDER The appeal is dismissed by confirming the judgment of acquittal dated 04.10.2016 passed by the III Additional District and Sessions & Special Judge, Belagavi (POCSO) and (SC/ST (POA) in S.C.No.313/2013.
Sd/-
JUDGE Sd/-
JUDGE MBS/-