Karnataka High Court
The State Of Karnataka vs Syed Asgar, Syed Ezaz on 28 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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NC: 2024:KHC:8630-DB
CRL.A No. 1924 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1924 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
THROUGH R.T. NAGAR POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
...APPELLANT
(BY SMT. RASHMI JADAV, ADDITIONAL S.P.P.)
AND:
1. SYED ASGAR, SYED EZAZ
AGED ABOUT 27 YEARS
RESIDING AT NO.3/1, MUMTAZ MANJIL
NEAR V CARE HOSPITAL, 9TH 'A' CROSS ROAD
Digitally signed by ADI KABEER ASHRAMA
MOUNESHWARAPPA DEVEGOWDA ROAD, R.T. NAGAR POST
NAGARATHNA
Location: HIGH BENGALURU-560 032.
COURT OF
KARNATAKA
2. RAZIYA BEGUM
W/O. SHAHABUDDIN
AGED ABOUT 43 YEARS
RESIDING AT DOOR NO.16, 11TH 'A' CROSS
THIMMAYA GARDEN, R.T. NAGAR
BENGALURU-560 032.
...RESPONDENTS
(BY SRI MOHAMMED PASHA C., ADVOCATE, FOR R-1
VIDE ORDER DATED 12-12-2023, APPEAL STANDS
ABATED AGAINST R-2)
***
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NC: 2024:KHC:8630-DB
CRL.A No. 1924 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 30-4-2018 PASSED BY THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT, IN SPL.C.C. NO.575 OF 2014,
ACQUITTING RESPONDENT NO.1/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 363, 366 AND 376 OF THE IPC AND
SECTION 5(l) READ WITH SECTION 6 OF THE POCSO ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, DR. H. B. PRABHAKARA SASTRY, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C.") challenging the judgment of acquittal dated 30-4-2018 passed by the learned Child Friendly Court, Bengaluru Urban District (hereinafter for brevity referred to as the "Special Court") in Special Criminal Case No.575 of 2014 acquitting the accused of the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as "the POCSO Act"). -3-
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2. Summary of the case of the prosecution is that the accused and the victim girl (PW2/CW2) were known to each other. At the relevant point of time, the victim girl was minor in her age and she was aged about 16 years. On the date 14-10-2014 at about 4:00 p.m., the accused in the guise of loving and marrying the victim girl, enticed her to go along with him from near her house at No.16, 11th 'A' Cross, Thimmaiah Garden, Bengaluru. He took her to Hyderabad. Knowing that she was minor in her age, the accused committed repeated aggravated penetrative sexual assault (rape upon her). In the meantime, PW1/CW1, the mother of the alleged victim girl, had lodged a complaint before the complainant-Police in Crime No.292 of 2014 stating that her daughter, who was minor in her age, was found missing from their house from the date 14-10-2014 and she had suspected the hands of the accused in her daughter having found missing. Accordingly, the said complaint was registered against the accused for the offence punishable under Section 363 of the IPC. During the course of investigation, according to -4- NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 the prosecution, both the victim girl and the accused were traced at Hyderabad and they were brought back to Bengaluru. The victim girl narrated before the Investigating Officer that she was subjected to repetitive penetrative sexual assault by the accused. Both the accused and the alleged minor girl were subjected to medical examination by the Doctor. Having claimed that, during the course of investigation, he has collected sufficient material to prove the alleged guilt against the accused, the complainant-Police filed charge-sheet against the accused for the offences punishable under Sections 363, 366 and 376 of the IPC and Section 5(l) read with Section 6 of the POCSO Act.
3. After perusing the material placed before it and hearing both side, the Special Court framed a charge as against respondent No.1/accused for the offences punishable under Sections 363, 366 and 376 of the IPC and Section 5(l) read with Section 6 of the POCSO Act. Since the accused pleaded not guilty and claimed to be -5- NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 tried, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all ten witnesses from PW1 to PW10, got produced and marked documents from Exs.P1 to P12. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Special Court, by its judgment dated 30-4-2018, acquitted the accused of the offences punishable under Sections 363, 366 and 376 of the IPC and Section 5(l) read with Section 6 of the POCSO Act. Challenging the same, the appellant-State has preferred the present appeal.
5. The appellant-State is represented by Smt. Rashmi Jadav, learned Additional State Public Prosecutor. Respondent No.1/accused is represented by Sri Mohammed Pasha C. -6- NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018
6. Learned Additional State Public Prosecutor for the appellant-State and the learned counsel for respondent No.1/accused are physically appearing in the Court.
7. The Special Court records were called for and the same are placed before this Court.
8. Heard the arguments from both side. Perused the material placed before this Court, including the memorandum of appeal, impugned judgment and the Special Court records.
9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Court.
10. Learned Additional State Public Prosecutor for the appellant/State, in her arguments, submitted that both PWs.1 and 2 have stated that at the relevant point of time, the victim girl was minor in her age. Further, the medical report also shows the girl was aged about 16 to 17 years as at the time of her examination. Further, the evidence of -7- NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 PW8-Headmaster of the School coupled with the Date of Birth Certificate issued by him at Ex.P10 also supports and corroborates that the date of birth of the victim girl was 17-12-1997, as such, she was aged 16 years 10 months as on the date of the alleged incident, however, the Special Court did not consider the said aspect. In her support, she relied upon the judgment of the Hon'ble Apex Court in Mahadeo v. State of Maharashtra and another reported in (2013) 14 SCC 637 and also a judgment of this Bench in The State through Grameen Police Station, Gulbarga v. Sharanu @ Sharanappa @ Sharanabasappa reported in 2022 LiveLaw (Kar) 442.
Learned Additional State Public Prosecutor further contended that the accused, having knowledge that the victim was minor, still he took her to Hyderabad and thus, had committed an offence of kidnapping of a minor with an intention to marry. The same is evident in the evidence of PWs.1 and 2, however, the Special Court did not believe the evidence of those witnesses including PW3-Police -8- NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 Official. She further contended that the evidence of PW2 victim girl clearly goes to show that the accused has committed repetitive sexual assault upon her while she was with him at Hyderabad. The medical evidence of PW7 also corroborates and shows that there were recent signs of sexual intercourse. Thus, the victim's evidence coupled with the medical evidence clearly establish that after kidnapping the victim girl, who was minor in her age, the accused has taken her to Hyderabad and committed repetitive sexual assault upon her. The evidence of PW3 coupled with PW10 would go to show that both the accused and the victim were traced at Hyderabad and they were brought back to Bengaluru, however, the Special Court without appreciating the evidence in their proper perspective assumed several things on its own and giving the alleged benefit of doubt to the accused has pronounced the judgment of acquittal which requires a revisit by this Court and appeal deserves to be allowed. -9-
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11. Per contra, learned counsel for respondent No.1/accused, in his brief arguments, submitted that even though PWs.1 and 2, at some point of time, have stated that PW2 the alleged victim was minor in her age, however, later on, both those witnesses themselves have come with their clear and convincing evidence that PW2 was major in her age as on the date of the alleged incident. Even PW2 the victim herself has stated that she was major as at the time of the alleged incident. He also contended that except self serving statement of PW2, there is nothing on record to show that she was subjected to sexual assault by the accused. The evidence of medical Doctor-PW7 about the presence of signs of recent sexual intercourse cannot be attributed to the accused. He highlighted a fact that Ex.P3 clearly mentions the absence of spermatozoa in the clothes worn by the victim. Thus, it was highly unsafe to believe that the alleged victim girl was subjected to sexual assault, that too, by the accused at the relevant point of time. It is considering these aspects that there were no convincing material in the form
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 of evidence to prove the alleged guilt against the accused, since the Special Court has appropriately acquitted the accused of the alleged offences vide impugned judgment, the same does not warrant any interference at the hands of this Court.
12. After hearing the learned counsel from both side, the points that arise for our consideration in this appeal are:
i. Whether the prosecution has proved beyond reasonable doubt that PW2 the alleged victim girl was minor in her age as on the date of alleged incident 14-10-2014 and that, she was kidnapped by the accused on the said date at about 4:00 p.m. from near her house at No.16, 11th 'A' Cross, Thimmaiah Garden, Bengaluru, and thereby, has committed an offence punishable under Section 363 of the IPC?
ii. Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above at point No.i, the accused had an intention to marry PW2 the victim girl or knew that she may be compelled
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 for her marriage and thereby, his act of enticing PW2 the victim and taking her to Hyderabad, has resulted in committing an offence punishable under Section 366 of the IPC?
iii. Whether the prosecution has proved beyond reasonable doubt that the accused after kidnapping PW2 the victim girl on the date, time and place mentioned as above, took her to Hyderabad and kept the victim girl in a house and knowing that she was minor in her age, he committed repetitive aggregated penetrative sexual assault upon PW2 the victim girl and thereby, has committed the offences punishable under Section 376 of the IPC and also under Section 5(l) read with Section 6 of the POCSO Act?
iv. Whether the impugned judgment of acquittal challenged under in this appeal warrants and interference at the hands of this Court?
13. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused for the offences punishable under Sections 363,
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 366 and 376 of the IPC and Section 5(l) read with Section 6 of the POCSO Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
"42(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
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 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 is further reinforced, reaffirmed and strengthened by the trial Court.
42(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."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
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(c) In the case of Jafarudheen and others -vs- State of Kerala reported in (2022) 8 Supreme Court Cases 440, at paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti -vs- State of
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 Haryana and others reported in 2023 SCC OnLine SC
179. It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.
14. In order to prove the alleged guilt against the accused, the prosecution examined ten witnesses from PW1 to PW10. In order to attract Section 363 of the IPC and the alleged offence punishable under Section 6 of the POCSO Act, the prosecution is basically required to show that as on the date of the alleged offence, PW2 the alleged victim was minor in her age. In that regard, the important witnesses who could speak about the age of PW2 the alleged victim are PW1 (CW1)-Razia Begum, mother of the victim girl, PW2 (CW2)-victim girl herself, PW8 (CW5)- Melurappa, Headmaster of the School where the victim girl was shown to have studied and PW6 (CW3)-Shahabuddin, father of the victim girl.
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15. PW1 (CW1)-Razia Begum in her examination-in chief has stated that PW2 (the alleged victim) is her first daughter and she was running in the age of 17 years as on the date of her evidence which was recorded on 30-12-2015. Being a dropout of the School, she started learning tailoring work. Except stating that PW2 (CW2) was aged 17 years as in December 2015 which goes to show that PW2 must have been 16 years as on the date of the alleged offence, no more details were given by this witness in her examination-in-chief about the age of the girl. On the other hand, the very same witness, in her cross-examination recorded at a later date, has stated that at the time of she lodging a missing complaint alleging the missing of her daughter (CW2) before the Police, the victim girl was aged more than 18 years.
16. PW2 (CW2) the victim girl in her examination-in- chief recorded on 30-12-2015 stated that at the time of incident, she was running in 16th year of her age, however, this witness also in her cross-examination which was
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 recorded after substantial delay, i.e. on 25-7-2017, has stated that as on the said date, her age was 22 years.
17. PW6 (CW3)-Shahabuddin though stated that PW1 is his wife and PW2 is his daughter, however, he has categorically stated that he is not aware as to how old was his daughter-PW2 in the year 2014. Incidentally, even with respect to the alleged incident also, he has expressed his total ignorance about the same, as such, he has not supported the case of the prosecution even to the smallest extent.
18. PW7 (CW8)-Dr. B.M. Nagaraj, the Doctor who claims to have examined both the accused and the victim on the date 29-10-2014 at the request of the complainant- Police, has stated in his evidence that from the medical examination, he could notice that the age of the alleged victim girl was between 16 to 17 years as on the date of her examination. Thus, the evidence of PW7 is only his opinion on a dental and physical test of the victim girl.
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19. The main witness upon whom the prosecution relies much regarding the age of the alleged victim is PW8 (CW5)-Melurappa, Headmaster of the Government High School, Kempapura, Bengaluru. The said witness in his brief evidence has stated that based upon the School Admission Register, at the request of the Investigating Officer, he has issued a Date of Birth Certificate of the victim girl as per Ex.P10 showing the date of birth of the girl as 17-12-1997. In his cross-examination from the accused's side, he admitted the suggestion as true that it is based upon the Transfer Certificate of the School, where the victim had previously attended, entry regarding her date of birth in the School Admission Register were made. A perusal of Ex.P10 also go to show that the School Authority through PW8 have certified that the date of birth of PW2 the victim girl was 17-12-1997.
20. It is heavily relying upon the evidence of PW8, the learned Additional State Public Prosecutor for the appellant, in her argument, contended that when the
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 evidence of PWs.1 and 2 given in their examination-in- chief is considered along with the date of birth issued by PW8 at Ex.P10, it clearly stands established that the age of the victim girl was 16 years and 10 months as on the date of the alleged offences. In her support, she relied upon the judgment of the Hon'ble Apex Court in Mahadeo's case (supra) and judgment of this Court in Sharanu's case (supra).
21. In Mahadeo's case (supra), the Hon'ble Apex Court was pleased to observe in paragraph 12 of its judgment that in the light of the statutory rule in the form of Juvenile Justice (Care and Protection of Children) Rules, 2007, prevailing for ascertaining the age of a juvenile, it is their opinion that the same yardstick could be rightly followed by the Courts for the purpose of ascertaining the age of the victim as well.
The said Rule 12(3) of Juvenile Justice Rules, reads as below:
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 "12. Procedure to be followed in determination of Age.-
(1) xxx (2) xxx (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 or, as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case, shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, recorded a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause(b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law." Thus, as per the above Rules in the first place, the document which can be relied upon by the Court is the matriculation or equivalent certificate, which admittedly, is not available in the matter. In the absence of the same at the second place, it is the Date of Birth Certificate from the School (other than a Play School), first attended which can be relied upon.
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22. Ex.P10 is a Date of Birth Certificate and the author of the said document was also examined as PW8 and the said Headmaster in his evidence stated that based upon the entries made in the School Admission Register, he has issued the Date of Birth Certificate as per Ex.P10 to the Investigating Officer at his request. However, in his cross-examination from the accused's side, he admitted a suggestion as true that it is based upon the Transfer Certificate (also called as School Leaving Certificate), where the victim girl had previously studied, her Date of Birth was entered in her School Admission Register. It is relying upon the said statement of PW8, the learned Additional State Public Prosecutor vehemently contended that even in Mahadeo's case (supra), the Hon'ble Apex Court relied upon the Date of Birth Certificate issued by a Higher School as the one in the case on hand, as such, the entries made in the School Register, since being the entries made in the Transfer Certificate, where the victim had first attended in her schooling requested to be accepted and proceeded with.
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23. The said argument of the learned Additional State Public Prosecutor is not convincing for the reason that even though PW8 has stated that the Date of Birth of PW2 was recorded as 17-12-1997 in the School Admission Register, which in turn, was based upon the Transfer Certificate issued by her previous School, but there is no evidence to show that the School which issued the alleged Transfer Certificate was the only School or the first School where the victim girl was said to have studied first. No statement in this regard has been elicited by the prosecutor in the evidence of PW8. No presumption also can be drawn, particularly, in the absence of any supporting material to effect that the School which issued the Transfer Certificate which was given to Government High School of which PW8 was the Headmaster of the School, was the School, where the victim girl had studied at first. Rule 12(3)(a)(ii) of Juvenile Justice Rules at first specially mentions that the said Date of Birth Certificate is required to be issued from the School first attended by the minor. In the absence of any evidence either oral or
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 documentary to show that the School which had issued the Transfer Certificate was the School first attended by the victim, necessarily a doubt arises in that regard, regarding the reflection of the Date of Birth of PW2 as 17-12-1997 in the alleged Transfer Certificate. Incidentally, either the original or an authenticated copy of the said Transfer Certificate also has not been secured by the Investigating Officer and produced during the trial, at least, through which the Court would have arrived at a conclusion that Transfer Certificate was showing that was the only previous School firstly attended by the victim, prior to she joining Government High School, Kempapura, Bengaluru. In Mahadeo's case (supra), the Hon'ble Apex Court had observed in paragraph 13 of its judgment that the Primary School was the School where the prosecutrix had her initial education and it had confirmed her date of birth as a particular date. Thus, there was evidence in the said case before the Hon'ble Apex Court about the School that was first attended by the prosecutrix. It is considering the said evidence, the Hon'ble Apex Court proceeded to accept the
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 Date of Birth Certificate issued by the subsequent School Authority. Since the very vital document is lacking in the case on hand, merely because PW8 as Headmaster of the School has issued Date of Birth Certificate as per Ex.P10, it is not safe to believe and to hold that the date of birth of PW2 was 17-12-1997.
24. The learned Additional State Public Prosecutor also relied upon Sharanu's case (supra) and contended that this Court had accepted the date of birth of the victim girl shown in the Certificate issued by the School, which entry in turn, was based upon the School Leaving Certificate. No doubt, this Court, in the said case, had considered the said Date of Birth Certificate, however, in order to accept the said Date of Birth Certificate, this Court had given a detailed reasoning in paragraph Nos.29 to 32 of its judgment, which clearly set out the ground for acceptance of the said Date of Birth Certificate. Firstly, in the said case, the victim girl had categorically stated that she was minor in her age as on the date of the incident
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 and that her date of birth confirmation certificate issued by the Headmaster of the School also mentions that as on the date of the incident, the victim girl was 15 years and 4 months old. Throughout her evidence, the victim girl adhered to her version that she was minor in her age as on the date of the alleged incident. She even categorically denied a suggestion that she was major in her age as on the date of the alleged incident.
25. Whereas in the case on hand, though PWs.1 and 2 in their examination-in-chief have initially stated that PW2 the victim was minor in her age as on the date of the alleged incident, however, both of them in their cross- examinations have in unequivocal terms stated that PW2 the victim girl was major in her age as on the date of the alleged incident. PW1, the mother of the girl, stated in her cross-examination that the age of the victim girl was more than 18 years as on the date of she lodging a missing complaint. The said statement was not an admission made by her of a suggestion, but it was the
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 statement made by her, probably, as an answer to a question asking the age of the alleged victim girl. She admitted a suggestion as true that the birth of the victim girl was not registered after she was born and giving an approximate age, she was admitted to the School.
26. Similarly, even PW2 the alleged victim girl also in her opening first sentence in her cross-examination stated that as on the date of her cross-examination, which was recorded on 25-7-2017, her age was 22 years. When the incident is said to have taken place in October 2014, according to her statement, her age would be 19 years as on the said date. Thus, unlike in Sharanu's case (supra), in the instant case, both the mother and the daughter have uniformly stated in their cross- examinations that the daughter (victim girl) was major in her age as on the date of she found missing. The said aspect keeps the present case on a different footing from Sharanu's case, as such, the finding given in Sharanu's
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 case is not applicable in the changed facts and circumstances of the present case.
27. Learned Additional State Public Prosecutor, in her argument, contended that there is a passage of a long time between the recording of examination-in-chief of PWs.1 and 2 to that of their cross-examinations recorded at later year. She said, the time gap varies from one and a-half-years to two years, as such, both the witnesses have been won over by the accused which has made them to give a goodbye to their evidence given in examination- in-chief and held the accused in their cross-examinations.
28. No doubt, the said argument can be considered and accepted, provided, there are convincing reason to believe the same. In the instant case, except the time gap which can be ascertained by looking at the dates of recording of their examination-in-chief and the cross- examinations of PWs.1 and 2, there is nothing more to presume or draw an inference that the accused had won over both the witnesses during the passage of such time.
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 The prosecution has not elicited any inspiring statement to draw any inference to that effect in the cross-examinations of PWs.1 and 2. A mere suggestion made by the prosecution is not sufficient, but the prosecution in the given circumstance of the case ought to have brought out some response or statements from the witnesses by appreciating the same. The Court should have led to draw an inference that the accused must have won over PWs.1 and 2 during the passage of time and in the gap of their evidence in examination-in-chief to cross-examinations. Since the prosecution has not put its effort in that regard, merely looking a large gap of time between the examination-in-chief of PWs.1 and 2 to that of their cross- examinations, the Court on its own cannot come to a conclusion that both the witnesses were won over by the accused before to their cross-examinations. Consequently, the Date of Birth Certificate at Ex.P10 also cannot be believed to hold that PW2 was minor as on the date of the alleged incident and her date of birth was 17-12-1997.
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29. The third alternative to assess the age of the minor under Rule 12(3) of Juvenile Justice Rules is the Birth Certificate given by a Corporation, or a Municipal Authority, or a Panchayat. Admittedly, no such Birth Certificate has been placed by the prosecution in the matter. On the other hand, as observed above, PW1, herself, admitted a suggestion as true in her cross- examination that birth of PW2 the alleged victim girl was not registered before the competent authority by them.
30. The last piece of evidence upon which the prosecution relies upon is the medical opinion from a duly constituted Medical Board. In the case on hand, PW7- Doctor has opined that by the physical and dental examination of the victim girl conducted by him on 29-10-2014, he was of the opinion that the age of the victim girl was between 16 and 17 years as on the date of her examination. The said evidence of the Doctor is also not safe to believe the case on hand, for the reason that firstly, it was the Doctor's individual opinion, but not
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 collective opinion of the Medical Board. Rule 12(3)(b) of the Juvenile Justice Rules expects the examination of the alleged minor from the Medical Board. In the instant case, admittedly, PW7 does not constitute a Medical Board. Secondly, even though as an individual Doctor, he has given his medical opinion regarding the age of the girl, but the same cannot be taken as an accurate assessment of the age and two years margin on either side is required to be given, in which an event, the age of the alleged victim girl would not fall in the category of minor. As such, none of the evidence pressed by the prosecution are capable to convince the Court that PW2 was minor in her age as on the date of alleged incident of kidnapping and subsequent incident of sexual assault upon her.
31. The offences charged against the accused are also one punishable under Sections 363, 366 and 376 of the IPC and Section 5(l) read with Section 6 of the POCSO Act. It is alleged that on the date 14-10-2014, the accused enticed PW2 and kidnapped her from the custody of her
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 lawful guardian and took her to a distant place, called Hyderabad, and having kept there, committed repetitive aggravated penetrative sexual assault against her will and consent and thus, has committed the above offences. In order to prove these offences against the accused, the prosecution mainly relies upon the evidence of PWs.1, 2, 3, 6 and 7.
32. PW1 (CW1) is the mother of the victim, who in her examination-in-chief has stated that after about fifteen days of lodging a missing complaint about her daughter (PW2), the Police informed her that her daughter was found at Hyderabad. Accordingly, she joined by her husband along with the Police went to Hyderabad, while they were in Railway Station in the morning hours at 4:00 a.m., the accused and her daughter (PW2) came there and after she identified her daughter, the Police enquired them and brought them to Bengaluru. During the enquiry, the girl told that she was enticed by the accused, promising that he would marry her and taken her
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 to Hyderabad and there, by keeping her in a house, he subjected her to repetitive sexual intercourse. PW2 also stated that before taking her to Hyderabad, the accused had taken her to the Office of Sub-Registrar of Marriages and had obtained her signatures on some papers and stated that they have undergone registered marriage and thereafter, he had taken her to Hyderabad. Apart from narrating these details, PW1 also identified the accused in the Court as the one who had caused these offences against her minor daughter. However, the very witness at a later date, in her cross-examination has taken a total U- turn to what she has stated in her examination-in-chief. Though she has stated that her daughter was found left the house on 14-10-2014, but she also admitted several suggestions to the effect that being not happy with the quarrel that was being taken place between her parents, i.e. PWs.1 and 6, their daughter (PW2) has left the house. She has further stated in her cross-examination that PW2 though had been to Hyderabad, but she had been to aunt's (Shaheen's) house at Hyderabad and was staying
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 there. After few days, Shaheen, aunty of the girl, telephoned these people informing about the presence of PW2 in her house, it is thereafter, they proceeded to Hyderabad and brought her back. Thus, she not only stated that the alleged victim girl had been to Hyderabad and without there being any enticement by anybody, much less from the accused, but also stated that by herself, she had been to her aunt's house, by name Shaheen, at Hyderabad and was not staying with the accused. Furthermore, PW1, in her cross-examination, categorically stated that her daughter (PW2) was never subjected to kidnap or sexual assault by the accused. She admitted a suggestion as true that her evidence given in her examination-in-chief was given as per the instructions given to her by the Police. She further stated on her own that they have got married PW2, their daughter, to one of the boys, who is a distant relative.
33. PW2 also proved to be no exception to the U-turn taken by her mother in the cross-examination. Even PW2
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 the alleged victim girl also stated in her cross-examination that being annoyed and not happy with the frequent quarrels going on between her father and mother, she herself left the house and had been to aunt's house at Hyderabad. There at Hyderabad, in her aunt's house, she was there for fifteen days. She specifically stated that she was never kidnapped by the accused nor she was enticed by him to join him to go to Hyderabad. She has specially stated that no alleged incident of sexual assault much less repeated penetrative sexual assault has practiced upon her by the accused at any point of time. Thus, both PWs.1 and 2 have given a total goodbye to the case of the prosecution, though initially, they have shown some support to the prosecution in their examination-in-chief.
34. In the cross-examinations of both PWs.1 and 2 by the prosecution, no serious attempt was made to show that both these witnesses were won over by the accused in some manner, as such, they were constrained to give a go-by to the evidence given by them, previously, in their
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 examination-in-chief. Except making some suggestions, particularly, with respect to the statements said to have been given by both these witnesses before the Investigating Officer, the prosecution has not elicited any favorable statements either from PWs.1 or 2 to suspect that they had given a go-by to their evidence given in examination-in-chief for no valid reason and that they were won over by the accused or they themselves had decided to stay away from their evidence in examination- in-chief. On the other hand, in their cross-examinations made by the accused's side, both these witnesses have specifically and clearly stated that they had given their examination-chief in a particular manner, since they were instructed to say so by the complainant-Police. The said statements of both these witnesses could not be shown as false in their subsequent cross-examinations by the prosecution side. Thus, the evidence of PWs.1 and 2 given in their examination-in-chief is not safe to believe to arrive at a conclusion that the prosecution has proved the guilt against the accused for the alleged offences.
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018
35. In addition to the above, PW6-Shahabuddin, father of PW2, also has not supported the case of the prosecution. He has not even identified the accused and stated that the accused was a stranger to him. He stated that he does not know anything about the alleged incident, but categorically stated that the accused has never kidnapped their daughter and has not committed anything against her. In his cross-examination after treating him as hostile at the request of the prosecution, the Special Court permitted the prosecution to cross-examine him, however, in his cross-examination, the prosecution except suggesting him the sentences from his alleged statement before the Investigating Officer recorded under Section 161 of the Cr.P.C., nothing more was elicited to show that this witness was intentionally giving a false evidence in the Court. The material portion of his alleged statement before the Investigating Officer recorded under Section 161 of the Cr.P.C. was read out to him and since the witness did not admit the same as true, the statement was got marked at Ex.P8 and the prosecution closed its cross-examination of
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 the witness. Had really, PWs.1, 2 and 6 were won over by the accused, the prosecution should have necessarily cross-examined PW6 on the said aspect and put him several searching questions to elicit his response which makes his evidence of not supporting the prosecution as doubtful and to suspect that, intentionally, he is deviating from his alleged statement as per Ex.P8, however, no attempt of a minimum level was made by the prosecution in that regard, as such, the third and another important material witness of the prosecution also did not support the case of the prosecution.
36. In the absence of the evidence of the material witnesses, particularly that of PWs.1, 2 and 6, the evidence of others witnesses would not be of greater importance to hold the accused guilty of the alleged offences by solely relying upon their evidence. No doubt, PW3 (CW9)-Syed Rafi Ahamed, then Police Head Constable of the complainant-Police Station, has stated that after PW1 lodging a missing complaint and based
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 upon the instruction of his superior, coming to know that the accused and the missing girl were available at Hyderabad on 28-10-2014, he joined by a Police Constable and accompanied with the parents of the victim girl, proceeded to Hyderabad and on 29-10-2014 in the morning at about 3:20 a.m., they noticed the arrival of the accused and the victim girl in the Railway Station and after the girl was identified by her mother, they brought both the accused and the girl back to Bengaluru and produced them before their Investigating Officer, however, his evidence was denied in his cross-examination. The witness could not even say the registration number of the vehicle, in which, he is said to have gone to Hyderabad, he could not even say the location or the area where they had been at Hyderabad, so also, he could not even say the registration number of the auto-rickshaw, in which, the accused and the girl arrived to the Railway Station at Hyderabad and as contended by the learned counsel for respondent No.1, no mahazar in that regard was drawn by the complainant-Police about PW3 and his team tracing
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 the accused and the missing girl together in Hyderabad Railway Station on 29-10-2014 and bringing them back to Bengaluru. Thus, the evidence of PW3 also proved to be not safe to believe to hold the accused guilty of the alleged offences. Apart from the above witnesses, there are no other material evidence to prove the alleged incident of kidnap and rape.
PW7-Doctor, who claims to have examined both the alleged victim girl and the accused, has stated that during the enquiry, he came to know from the victim girl and the accused that both of them eloped together to Hyderabad and the accused had repetitive sexual intercourse with the victim girl, but that is only hearsay evidence. In the absence of any corroborative evidence, as such, it is not safe to believe the evidence of PW7 about the accused alleged to have enticed PW2, taken her to Hyderabad and committing repetitive sexual assault upon her.
37. PW7-Doctor further stated that by physical and local examination of the victim girl, he noticed the rupture
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 of hymen and presence of the signs of the recent sexual intercourse in a gap of two to three weeks, however, the very said evidence that she had recent sexual intercourse in a gap of two to three weeks appears to be only his guess work and he has not given any reason to arrive at such a conclusion. It is for the reason that even according to the said Doctor, the presence of spermatozoa can be noticed for duration of 6 to 24 hours after the alleged sexual intercourse. Admittedly, in the instant case as per Ex.P3, there was absence of spermatozoa in the clothes worn by the victim. Based upon the local examination of the victim, if at all the Doctor could come to a conclusion about the presence of recent sexual intercourse, the Doctor can speak about such recent sexual intercourse for about a period of a day or two, but in the instant case, the Doctor has stated that there was signs of recent sexual intercourse in a gap of two to three weeks. To hold that there was signs stretching for a gap of two to three weeks what exactly the medical reasons he observed has not been explained by him, as such, merely because it is
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 stated by the Doctor that there were signs of recent sexual intercourse in a duration of two to three weeks, the same cannot be taken as gospel truth, that too, particularly, when the alleged victim herself has not supported the case of the prosecution to the expected extent.
38. In the light of the above, even when the medical evidence is also not quite sufficient to believe such an act of sexual intercourse, that too, particularly by the accused, the evidence of PW10 (CW13)-Kallappa S. B., Investigating Officer, alone cannot be the sole basis of proving the alleged guilt against the accused. Though the said witness in his examination-in-chief has stated about he receiving a complaint on 15-10-2014 as per Ex.P1 and submitting an FIR as per Ex.P11 and thereafter, proceeding to the place from where the girl was found missing and drawing a scene of offence panchanama as per Ex.P12 and recording the statements of CWs.3 and 4 that itself is not sufficient to hold that the accused had kidnapped PW2 and had subjected her to repetitive sexual
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 assault. Incidentally, the major aspect of the investigation has been done by CW14.
39. The said CW14-Raghupathi, who was examined as PW9, though has stated about he conducting the investigation in this matter, including recording the statements of several of the witnesses, including PW2 the victim girl and getting both the victim girl and the accused medically examined by the Doctor, obtaining the medical report from the Doctor and contacting PW8-Headmaster of the School and obtaining the Date of Birth Certificate as per Ex.P10 and getting the statement of the victim girl recorded through Magistrate under Section 164 of the Cr.P.C. and filing charge-sheet against the accused for the alleged offences, however, are not sufficient to prove the alleged guilt against the accused, particularly, when other important and material witnesses have not at all supported the case of the prosecution. The Investigating Officer, who files charge-sheet, requires the evidence to prove his charge-sheet and the allegations made thereunder. In the
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 instant case, though PW9, as an Investigating Officer, claims to have collected some proof which led him to file charge-sheet against the accused, but those persons who should have corroborated the alleged proof collected by the Investigating Officer since themselves have not fully supported the case of the prosecution, except the official witnesses, it is highly unsafe to hold the conviction merely based upon the evidence of the Investigating Officer.
40. Since it is appreciating the evidence placed before it, in its proper perspective, the Special Court has proceeded to pronounce the impugned judgment of acquittal, we do not find any reasons to interfere in the same. Accordingly, we proceed to pass the following order:
ORDER i. The appeal stands dismissed as devoid of merits.
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NC: 2024:KHC:8630-DB CRL.A No. 1924 of 2018 Registry to transmit a copy of this judgment along with the Special Court records to the concerned Special Court, immediately.
Sd/-
JUDGE Sd/-
JUDGE KVK List No.: 1 Sl No.: 10