Karnataka High Court
Smt. Rajavva W/O Ujanappa Chavhan vs Mallesh S/O Maanappa Haranshikari on 27 March, 2025
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CRL.A No.100223/2023
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS 27th DAY OF, MARCH 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100223 OF 2023 (A)
BETWEEN:
SMT. RAJAVVA
W/O. UJANAPPA CHAVHAN @ HARANSHIKARI
AGED 42 YEARS, OCC. COOLIE,
BYAHATTI, DHARWAD DIST.
PIN-580023.
...APPELLANT
(BY SRI. S.P. KANDAGAL, ADVOCATE)
AND:
MALLIKARJUN
RUDRAYYA
KALMATH
Digitally signed by
MALLIKARJUN
RUDRAYYA KALMATH
Date: 2025.03.28
1. MALLESH,
11:17:41 +0530
S/O. MAANAPPA HARANSHIKARI
AGED 22 YEARS,
OCC. LABOURER,
R/O. ALAGAWADI,
TQ. NAVALGUND,
DHARWAD DISTRICT-580011.
2. THE STATE OF KARNATAKA
THROUGH P L DHARWAD WOMEN P S,
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CRL.A No.100223/2023
DHARWAD,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENTS
(BY SRI. R.M. JAVED, ADVOCATE FOR R1;
SRI. M.B. GUNDAWADE, ADDL. SPP. FOR R2;
PW1-VICTIM-SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CODE OF CRIMINAL PROCEDURE, SEEKING TO PASS AN
ORDER CALLING FOR THE RECORDS FROM THE TRIAL COURT,
AND SET ASIDE THE JUDGMENT AND ORDER DATED
20.06.2022 PASSED BY THE II ADDL. DISTRICT AND
SESSIONS AND SPL. JUDGE, DHARWAD IN SPL. SC
NO.41/2020 AND PASS AN ORDER CONVICTING THE FIRST
RESPONDENT/ACCUSED OF THE OFFENCES UNDER SECTION
363, 376 AND 506 IPC, AND SECTION.6 OF THE POCSO ACT,
2012 IN SPL. S.C.NO.41/2020 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS AND SPL. JUDGE
DHARWAD.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.03.2025, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
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CRL.A No.100223/2023
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Appellant Smt. Rajavva who is the complainant and mother of victim, has preferred this appeal under proviso of Section 372 of Code of Criminal Procedure against the judgment of acquittal dated 20th June 2022 passed in SC No.41 of 2020 by the II Additional District and Sessions Judge and Special Judge Dharwad (for short, herein in referred to as the "trial Court"). It is relevant to mention here that the state has not preferred appeal against the include judgment of acquittal and hence State is made as a respondent No.2 in this appeal.
2. For the sake of convenience, the parties herein are referred to as per their ranking before the trial Court.
3. The factual matrix of the case is that the Police Inspector, Women Police Station, Dharwad has filed charge- sheet against the accused for offences punishable under Sections 363, 376 and 506 of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, 2012 (for brevity hereinafter referred to as "the POCSO Act"). It is alleged in the charge-sheet that on 21st August 2020 at about -4- CRL.A No.100223/2023 3.00 pm, the victim who is the daughter of the complainant studying seventh standard, was alone in the house. Accused came to house and kidnapped the victim from her house at Prabhunagar, Honnapura without the knowledge of their parents/guardians and took her in a bus to an under construction building near Jamadaghni Temple near Saundatti Yellamana Gudda and by threatening the victim and kept her in the room for four days and committed penetrative sexual intercourse with the victim, and finally at the request of the victim, accused dropped her to her village in the bus on 25th August 2020. Thus, accused committed offence punishable under Sections 363, 376 And 506 of Indian Penal Code and Section 6 of POCSO Act.
4. After filing charge-sheet, cognizance was taken against the accused and case was registered in Special Case No.41 of 2020. Accused was produced before the trial Court and thereafter he was enlarged on bail. Upon hearing on charges, the Special Court framed charges for alleged commission of offences and the same were read over and explained to the accused in the language known to him. Having understood the same accused, pleaded not guilty and claimed to be tried. To prove the guilt of the accused -5- CRL.A No.100223/2023 prosecution has examine fourteen witnesses as PWs1 to 14 and marked 34 documents as Exhibits P1 to P34 and nine material objects were marked as MOs1 to 9. On closure of the prosecution evidence, statement under Section 313 of the Code of Criminal Procedure was recorded. Accused has totally denied evidence of prosecution witness appearing against him and he has not chosen to adduce any defence evidence on his behalf. Having heard the arguments on both sides, the trial Court has acquitted the accused. Being accrued by this judgment of acquittal, the mother of the victim has preferred this appeal.
5. Sri S.P. Kundagol, learned Counsel appearing for the appellant submit that evidence on record is sufficient to pass the order of conviction on the accused for the offence punishable under Sections 363, 376, 506 of Indian Penal Code and Section 6 of POCSO Act. The trial Court has committed grave error in not considering, both oral and documentary evidences which are sufficient to hold that the offence alleged against the accused have been proved by the prosecution beyond any doubt. The trial Court has also erred in not considering that, apart from oral evidence of the victim, there are other evidences which prove the charges against the -6- CRL.A No.100223/2023 accused. He would further submit that though the victim has supported the case of prosecution while recording the statement under Section 164(5) of Indian Evidence Act, but during trial, she has not supported the case of prosecution. PW2, the mother of victim supported the case of prosecution. On all these grounds he sought to allow the appeal.
6. On the other hand, Sri R.M. Javeed, learned counsel appearing for respondent No.1-accused, submitted that the trial court has properly appreciated evidence on record in accordance with law and facts and there are no grounds to interfere with the impugned judgment of acquittal and accordingly, sought for dismissal of the appeal.
7. Having heard the arguments on both sides and on perusal of material placed before us, the following points would arise for our consideration:
1. Whether the appellant has made out a ground to interfere with the impugned judgment of acquittal?
2. What order?
8. Our answer to the above points is:
Point No.1: In the negative -7- CRL.A No.100223/2023 Point No.2: As per final order Regarding point no.1
9. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal.
10. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus:
"23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it -8- CRL.A No.100223/2023 may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
11. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: -9- CRL.A No.100223/2023
"16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. ..."
12. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:
"4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of
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PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice...."
13. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:
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"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."
14. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:
"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion."
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CRL.A No.100223/2023
15. We have examined the materials placed before us. In the charge-sheet, the Investigating Officer has cited nineteen witnesses. Out of them, nine witnesses are examined as PWs1 to 9.
16. CW8-said to be the victim, is examined as PW1. She has deposed in her evidence that CW1 and 9 are her parents. She knows CWs2 and 3. Herself and her parents were residing at Kambaraganavi village in the year 2020 and now they are staying at Byahatti. Her parents are doing coolie work in agriculture lands. Her parents have got five children including her and she do not know her date of birth. She has studied up to 7th standard at Honnapur Government Primary School. She has further stated that accused is known to her, and he is not her their relative and she do not know the native place of the accused or his residence. She also stated that accused has not visited their house anytime or accused has taken her to any place, including Yellammana Gudda. She has also deposed that accused has not threatened her. She has further post that accused has not committed any offence upon her. They have not stayed in Yellammana Gudda. Accused has not left her anywhere and she has not stated about the incident to her parents. It is her mother who has lodged the complaint and
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CRL.A No.100223/2023she does not know the reason for lodging the complaint. She has also stated that police has not recorded any statement through video not taken her before any medical officer. She has not given the history of incident before the medical officer. She has also stated that doctor has not collected any article pertaining to her. She has identified her signature on Panchama, which is marked as Exhibit P1. She has not given any statement before the Court. She has not informed the incident before the Court. The sealed packet of statement of fitness is marked as Exhibit P5 and the signature of witness is marked as Exhibit P5(a). This witness has been treated as hostile witness with the permission of the Court and the learned Public Prosecutor has cross-examined her. Even during her cross-examination, the prosecution has not elicited any answer so to attract the alleged commission of offence. But during the course of cross-examination, she has denied as to the statement given before the Court as per Exhibit P5.
17. Smt. Rajamma, mother of the victim examined as PW2, has deposed in her evidence that Victim is her daughter, CW9 is her husband and she knows CW2 and 3 and they were staying at Jai Bharat Colony, Alnavar in the year 2020. One year back, the accused and his mother came and took her
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CRL.A No.100223/2023daughter for fair. After five days, they left her daughter in the Bus stand. She had advised her daughter for bathing and to change her dress. She has further deposed that her daughter has planned to go to Alagawadi with others. They have caught hold of her daughter at Shivanagari village and she had lodged the complaint as per Exhibit P8. Police have conducted Panchanama which is marked as Exhibit P9. Police have also snapped photo which is marked as Exhibit P10. She has deposed that her daughter told her that accused has committed penetrative sexual assault upon her and her daughter has given statement to police also. This witness is treated as hostile witness and was cross-examined by the Public Prosecutor with the permission of the Court. In her cross-examination, she has admitted that on 21st August 2020 at about 3.00 pm, accused kidnapped her daughter by giving false promise when they were not present at home. It is also admitted that they were searching their daughter on 21st August 2020 and the accused has left her daughter and went away. Her daughter has told her that the accused has kidnapped her from their house and in a bus took her to Yellammna Gudda and kept in a room there for five days and committed repeated forcible penetrative sexual assault upon her and dropped her back in a bus. Hence,
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CRL.A No.100223/2023she gave complaint against accused for the alleged sexual assault.
18. CW2-Maruti Tayappa Annigeri and CW3-Prahlad Govindappa Annigeri examined as PWs3 & 4, have not supported the case of prosecution.
19. CW4-Subhas Chavhanand CW5 Shankar, examined as PWs5 & 6 said to be the attesters to Panchanama Exhibit P1, have not supported the case of prosecution.
20. CW18-Sheela Jamboti, Women Police Inspector examined as PW7, has deposed that as per the direction of CW 19, on 02nd September, 2020, she has recorded statement of the victim marked as Exhibit P7, and handed over the same to CW 19.
21. CW7-Kashappa Madar examined as PW8, has deposed as to Exhibit P11 and seizure of MOs5 to 15.
22. CW11-Dr. Prabhu Senior Specialist District Hospital, Dharwad has deposed in his evidence as to the examination of the accused and issuance of provisional medical certificate Exhibit P17 at the request of police as per Exhibit P15 dated 23rd October, 2020 and issuance of report as per Exhibit P17 as
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CRL.A No.100223/2023per request of police and request of witness vide Exhibits P15 and 16 respectively.
23. CW10-Dr Neeta Beelagi, Senior Specialist, District Hospital, Dharwad examined as PW10. She has deposed as to examination of victim, genetically and medically and as to issuance of final opinion as per Exhibit P24. She has deposed that she cannot say the possibility of sexual assault upon the victim based on record.
24. CW12 Vimla Sanu, Incharge Head Mistress, Government Higher Primary School, Honnapur, examined as PW11 has deposed as to issuance of Transfer Certificate Exhibit P26 and also issuance study certificate.
25. CW9-Ujanappa Haranashikari who is the father of the victim examined as PW12, has deposed that he do not know the date of birth of the victim. Accused is his relative. They were staying at Jai Bharat colony, Alnavar in the year 2019-20. He, his wife and children were staying therein. They used to go to work as coolies in the agriculture lands from 7.00 am to 6.00 pm and children used to attend classes. He has deposed that the accused has taken his daughter from Jai Bharat colony to Yellamana Gudda about two years back and when they
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CRL.A No.100223/2023returned to home at 6.00 pm, victim-daughter was not present at home. They have searched at different places and could not trace out their daughter. He has deposed that after five days, her daughter was brought by the mother of accused and a relative. His daughter has not told anything about incident and he do not know about the offence committed by the accused upon his daughter and he has not given any statement to the Police. Even during the cross-examination by the Public Prosecutor, after treating him has hostile witness with the permission of the Court, he has denied the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, which is marked as Exhibit P29.
26. CW17-Parimala Muragod, Women Police Constable No.804, Office of Inspector of Police Garag, examined as PW13 has deposed that she has typed Exhibits P11 and P13 as per the direction of the Investigating Officer Police inspector. She has got snapped the photos as per Exhibits P2 to P4 and Exhibit P10. She has also issued certificate under Section 65B of the Indian Evidence Act as per Exhibit P30. She has videographed the statement of the victim through her mobile phone as per Exhibit P6. The video record from her mobile has been transformed into DVD as per Exhibit P6.
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CRL.A No.100223/2023
27. CW19-Basavaraj Kamanbailu, Police Inspector examined as PW14 has deposed as to the investigation conducted by him.
28. To prove the offence under Section, 363 of IPC, the prosecution has to prove the following essential ingredients:
"(a) Essential Ingredients.- An offence under Section 363 has following essentials:
(i) That the accused did:
(a) Forceful compulsion or inducement by deceitful means;
(b) The object of such compulsion or inducement must be the going of a person from any place;
(ii) That such kidnapping of any person was done from India or from the lawful guardianship
(b) Evidence.- To bring an offence, under Section 363 of the Indian Penal Code, 1860 the prosecution is to establish (a) the accused conveyed the victim beyond the limits of India; (b) that this removal was without the consent of the victim or of any person legally authorized to consent removal;
or
(a) The accused has either taken or enticed away (voluntary accompaniment excepted) a minor; (b) the
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CRL.A No.100223/2023said minor if a male was under 167 years of age or if a female was under 18 years of age on the date of taking or enticing; (c) that the said taking or enticing has been made out of the keeping of a lawful guardian or a de facto guardian lawfully entrusted with the keeping of the minor without the consent of such guardian;
or
(a) the accused has either takes or enticed away a person or unsound mind; (b) this taking or enticing has been made out of the keeping of lawful guardian or de facto guardian lawfully entrusted with the keeping of the person of unsound mind; (c) that this removal of person of unsound mind has been effected without the consent of such guardian."
29. In the case on hand, the victim has not supported the case of the prosecution. Even in her cross-examination, prosecution has failed to elicit any favourable answers to attract the alleged commission of offences under Section 363 of Indian Penal Code. Parents of victim PWs2 and 12 have also not deposed anything as alleged kidnap. The trial Court has properly appreciated the evidence record and acquitted the accused.
30. In order to establish the charges against the accused under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act, the prosecution primarily relied on the
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CRL.A No.100223/2023testimony of the victim-PW1. However, during the trial, PW1 did not support the case of the prosecution. It was the contention of the prosecution that the victim had disclosed to her mother about the repeated acts of forcible penetrative sexual assault committed by the accused. Contrary to this assertion, the victim, while deposing on oath before the Court, unequivocally stated that she had not informed her parents about any such incident. Furthermore, the father of the victim, who was examined as PW12, also did not make any statement corroborating the alleged acts of sexual assault on his daughter.
31. Additionally, the prosecution placed reliance on the statement of the victim recorded under Section 164(5) of the Code of Criminal Procedure, which was marked as Exhibit P5. In this statement, the victim had provided details regarding the alleged forcible intercourse by the accused. However, it is a well-settled principle of law that a statement recorded under Section 164(5) of Cr.PC. does not have substantive evidentiary value. Such a statement is merely an improvement upon a statement recorded under Section 161 of Cr.PC by the Investigating Officer and can only be used for the purposes of contradiction or corroboration during cross-examination. Given
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CRL.A No.100223/2023that, the victim did not make any deposition before the Court supporting the allegations of sexual assault, the prosecution could not derive any evidentiary benefit from her earlier statement recorded under Section 164(5) of CrPC, as it remained uncorroborated by any other independent evidence. As a result, the prosecution failed to establish the guilt of the accused beyond a reasonable doubt solely on the basis of the victim's prior statement.
32. Moreover, the prosecution's case was not supported by any conclusive medical evidence. Exhibit P24-medical report issued by the Medical Officer, provided a final opinion on the genital examination of the victim, taking into consideration the Forensic Science Laboratory (FSL) report dated 26th November 2020. The report explicitly stated that there were no signs suggestive of recent sexual intercourse or assault. This crucial medical finding further weakened the prosecution's case, as it failed to provide any physical evidence substantiating the allegations of penetrative sexual assault.
33. The testimony of PW10-Dr. Neeta Beelagi, who conducted the medical examination of the victim, also aligned with the findings of Exhibit P24. In her deposition before the
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CRL.A No.100223/2023Court, she confirmed that there were no medical indications of recent sexual activity or forceful penetration. In light of these medical findings, the trial Court took a holistic view of the evidence presented and concluded that there was no credible, acceptable, or convincing proof to establish the guilt of the accused. Consequently, owing to the absence of direct testimony from the victim, lack of corroborative evidence from her parents, and the non-availability of medical findings supporting the allegations, the trial Court held that the prosecution had failed to prove the charges beyond a reasonable doubt. Giving the benefit of doubt to the accused, the trial Court proceeded to acquit him of all charges.
34. On appreciation, re-examination and reconsideration of the entire evidence on record and also upon keeping in mind, the aforesaid decisions of the Supreme Court, we do not find any error or legal illegality/infirmity in the impugned judgment of acquittal. Hence, we answer point number one in the negative.
Regarding Point No.2:
35. For the aforestated reasons and discussions, we proceed to pass the following:
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ORDER
(i) Appeal is dismissed;
(ii) Judgment of acquittal dated 20th June 2022 passed in SC No.41 of 2020 by the II Additional District and Sessions Judge and Special Judge Dharwad is confirmed;
(iii) Registry to send back the trial Court records along with the copy of this judgment to the concerned Court.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE Sd/-
(G. BASAVARAJA) JUDGE lnn