Karnataka High Court
The State Of Karnataka vs Raju @ Rajappa on 5 October, 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL APPEAL No.3579/2013
BETWEEN:
The State of Karnataka,
Through Jalahalli Police Station,
Dist. Raichur.
Represented by the
Addl. State Public Prosecutor.
... Appellant
(By Sri S.M.Patil, HCGP)
AND:
Raju @ Rajappa S/o Peetappa,
Age: 26 years, Occ: Agriculture,
R/o Karisogi-tanda,
Tq. Devadurga,
Dist. Raichur.
... Respondent
(By Sri Ishwaraj S. Chowdapur, Advocate)
This Criminal Appeal is filed under Section 378(1) &
(3) of the Code of Criminal Procedure, praying to grant
leave to appeal against the judgment and order dated
02.03.2013 passed in S.C.No.52/2012 by the FTC-I,
Raichur thereby acquitting the accused / respondent for
the offences punishable under Sections 366(A). Set aside
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the judgment and order dated 02.03.2013 passed in
S.C.No.52/2012 by the FTC-I, Raichur thereby acquitting
the accused/respondent for the offences punishable under
Sections 366(A). Convict and Sentence the accused /
respondent for the offences punishable under Sections
366(A) of IPC, in the interest of justice and equity.
This appeal coming on for final hearing on this day,
the Court made the following:
JUDGMENT
The State has preferred this appeal aggrieved by the impugned judgment of acquittal dated 02.03.2013 passed in SC No.52/2012 on the file of learned Presiding Officer, FTC-I at Raichur (hereinafter referred to as 'the Trial court'), acquitting the accused for the offences punishable under Sections 366(A), 504 and 506 of IPC.
2. Heard, Sri S.M.Patil, learned High Court Government Pleader for the appellant and Sri Ishwaraj S. Chowdapur, learned counsel for the respondent.
3. It is the contention of the prosecution that on 18.04.2011 at about 5.00 a.m. accused No.1 kidnapped the victim who is the minor daughter of the first informant 3 from her house, situated at Karisogi-thanda Sooladagudda in Devadurga Taluka, with an intention to force her to have illicit intercourse. When the father of the victim enquired accused No.1 over phone about missing of his daughter, he intentionally insulted CW1 by abusing him in filthy language and gave provocation to break public peace and gave life threat. Thereby committed the offences punishable under Sections 366(A), 504 and 506 of IPC. On the basis of the first information lodged by PW1-father of the victim, Jalahalli police registered crime No.53/2011 against accused No.1 to 4 for the aforesaid offences. But however vide order dated 13.09.2012 accused No.2 to 4 were discharged. On the basis of the charge sheet and after hearing the accused charge was framed for the aforesaid offences and accused No.1 pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its contention examined PWs.1 to 7 and got marked Ex.P1 to Ex.P7 in support of his contention. Accused No.1 denied 4 all the incriminating materials available on record in his statement recorded under Section 313 of Cr.PC. but has not chosen to lead any evidence in support of his defence. However, he got marked Ex.D1 and Ex.D2 during cross examination of the prosecution witnesses.
5. The Trial court after taking into consideration all these materials on record came to the conclusion that the prosecution is not successful in proving the guilt of the accused and proceeded to acquit him vide impugned judgment of acquittal referred to above.
6. Aggrieved by the said judgment of acquittal passed by the Trial court, the State has preferred this appeal on various grounds. The learned High Court Government Pleader in support of his contention, submitted that the prosecution is relying on the evidence of PW1-the father, PW3 the mother of the victim and PW2- the victim herself. It also relies on the transfer certificate marked as Ex.P7 to prove that the victim was a minor at the time of incident. In spite of that the Trial court 5 proceeded to acquit the accused without any valid reasons. On the basis of the evidence of PWs.1 to 3, the Trial court should have convicted the accused for the aforesaid offences. Hence, he prays for allowing the appeal and to convict the accused No.1 for the above said offences.
7. Per contra, the learned counsel for accused No.1/respondent supporting the impugned judgment of acquittal, submitted that PW1 and PW3 are not eye witnesses to the offence punishable under Section 366(A) of IPC. Even though the prosecution contended that accused No.1 has committed the offences punishable under Sections 366(A), 504 and 506 of IPC, it failed to prove the same against the accused. Under such circumstances, the Trial court was right in acquitting the accused. There are no grounds to interfere with the impugned judgment of acquittal passed by the Trial Court. Hence, he prays for dismissing the appeal as devoid of merits.
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8. Perused the materials including the Trial court records in the light of the rival submissions.
9. The prosecution in support of its contention that accused No.1 procured the minor girl by inducing her knowing that it is likely that she will be forced or seduced to illicit intercourse with another person kidnapped her and intentionally insulted PW1 to provoke breach of peace and criminally intimidated him, examined PW1 the father of the victim. This witness stated that his daughter was a minor aged 16 years at the time of incident and she was taken away by accused No.1 and the accused threatened to kill him. One day thereafter his daughter was traced and he lodged the first information with Jalahalli police. Again the witness stated that his daughter was traced along with accused No.1 four days after she found missing. He was informed by his daughter that accused No.1 had came to his house and took her away by gagging her mouth, under the pretext of marring her. During cross examination witness pleaded his ignorance about the school in which 7 his daughter was studying. He also stated that while admitting his daughter to the school the Head Master had not enquired about the date of birth of the child. He pleaded his ignorance about the contents of the first information-Ex.P1. He denied the suggestion that he filed the false complaint against the accused.
10. PW3 is the mother of the victim who deposed before the Court that on the date of incident the victim was sleeping in the house. Witness stated that she had gone out to answer nature's call and when returned, she found her daughter missing. She felt that accused might have taken away her daughter and accordingly she informed her husband. Witness stated that her daughter was aged 16 years and studied in the school for 4-5 years. During cross examination she admitted that her daughter puts her thumb impression to any document and she does not know reading and writing. Witness denied the suggestions that she is deposing falsely. 8
11. PW2 is the victim who is stated that on the date of incident when she was sleeping in her house at 5.00 a.m, accused came and lifted her on his shoulder and took her in his autorikshaw. He took her to Bellary and from there to Yadgir. Subsequently accused brought her to Jalahalli police station. She narrated the incident to the police. Witness stated that she was aged 16 years at the time of incident and accused had eloped her with an intention to cheat her and outrage her modesty. During cross examination witness stated that on the date of incident she was in her house along with other family members. Accused had gagged her mouth with a piece of cloth, but she had not removed the same nor raised hue and cry. Even when she was taken in the autorikshaw and when they proceeded in the bus from Bellary to Yadgir, she had not complained to any of the co-passengers. Witness stated that accused had not asked her to marry him and she never had physical contact with the accused.
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12. PW4 is the pancha for spot mahazar Ex.P2. PW5 is the brother of PW2 and stated that on the date of incident when he wakeup he found his elder sister missing. He came to know that accused had taken her away.
13. PW6 is the doctor who examined the victim who came with the history of sexual assault. Witness stated that the victim was subjected to examination by dentist, radiologist and gynecologist to confirm her age and the sexual assault. He has stated that on the basis of the finding he gave Ex.P3 and Ex.P4. During cross examination witness stated as per the radiologist the victim was aged 18-19 years.
14. PW7 is the investigation officer who spoke about the investigation and also got marked Ex.P7 the transfer certificate. This certificate was marked subject to the objection raised by the learned counsel for the accused.
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15. Ex.P3 is the letter issued by PW6 to the effect that as per the radiologist and dental surgeon, the approximate age of the victim is between 18-19 years. As per Gynecologist, Hymen was ruptured, but it may not necessarily attributable to sexual intercourse per se. No Spermatozoa was found in the specimen collected by the Gynecologist. No bodily injuries were found and there was no evidence of seminal stains in the articles sent for examination.
16. Ex.P7 is the transfer certificate issued by the Head Master, Government Higher Primary School, Sooladagudda relating to the victim. As per this document the victim was born on 05.06.1994. Except the investigating officer no other witness has spoken to about this transfer certificate even though the same was marked subject to objection. The prosecution relies on Ex.P3 according to which the victim was aged 18-19 years. When the victim is a major it cannot be said that the 11 offence under Section 366(A) of IPC was committed by the accused.
17. Regarding the offence punishable under Section 504 and 506 of IPC except the interested testimony of PW1, there is no other material to support the case of the prosecution. Even the call details to prove that PW1 had called the accused over phone, is not produced.
18. On perusal of all these materials on records, the contention of the prosecution that PW2 is the victim and she was a minor at the time of incident is not proved. Ex.P7-transfer certificate is not proved in accordance with law, to prove the fact that the victim was a minor as on the date of incident. The evidence of PWs.1 to 3 do not inspire confidence in the mind of the court about commission of offence by the accused. Under such circumstances, it cannot be said that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. As such the accused is entitled to be acquittal by extending the benefit of doubt. 12
19. I have gone through the impugned judgment of acquittal passed by the Trial court. I do not find any reason to interference with the same. Hence, I am of the opinion that the appeal is to be dismissed. Accordingly the same is dismissed as devoid of merits.
Sd/-
JUDGE SMP