Karnataka High Court
State Of Karnataka vs Narayana on 17 January, 2023
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CRL.A No. 952/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 952/2017 (A)
BETWEEN:
STATE OF KARNATAKA
BY MYSURU SOUTH
POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
Digitally BENGALURU - 560 001 ...APPELLANT
signed by D K
BHASKAR (BY SRI.K.NAGESHWARAPPA, HCGP)
Location:
High Court of
Karnataka AND:
1. NARAYANA
S/O CHIKKUSAIAH
AGED ABOUT 28 YEARS
2. CHIKKA KUSAIAH
S/O LATE THIMMAIAH
AGED ABOUT 61 YEARS
3. KEMPAMMA
W/O CHIKKUSAIAH
AGED ABOUT 51 YEARS
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CRL.A No. 952/2017
4. CHIKKATHAYAMMA
W/O LATE MAHADEVAIAH
AGED ABOUT 53 YEARS
R/AT DODDAKANYA VILLAGE
JAYAPURA HOBLI
MYSORE TALUK
MYSORE DISTRICT ...RESPONDENTS
(BY SRI.B.LETHIF, ADVOCATE FOR R1 TO R3;
R4-SERVED)
THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 11.01.2017 PASSED BY THE
VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU IN
S.C.NO.303/2014 - ACQUITTING THE RESPONDENT/ACCUSED
NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
448,376 OF IPC AND UNDER SECTION 4 OF POCSO ACT AND
ACCUSED NO.2 AND 3 ARE ACQUITTING FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 323,504,506 R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard.
2. "In acquitting respondents/accused No.1 of the charges for the offences punishable under Sections 448, 376 IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act' for short) and accused Nos.2 and 3 of the charges for the offences -3- CRL.A No. 952/2017 punishable under Sections 323, 504 and 506 read with Section 34 of IPC, the trial Court has acted arbitrarily and illegally ?" is the question involved in this case.
3. Respondent Nos.2 and 3 are the parents of respondent No.1. Respondent Nos.1 to 3 were prosecuted in SC No.303/2014 on the file of the VI Addl. District and Special Judge, Mysuru for the aforesaid charges on the basis of the Charge sheet filed by Mysuru South Police in Crime No.195/2014 of their Police Station.
4. The case of the prosecution in brief is as follows:
(i) PW.1 the victim girl was aged 17 years. PW.2 is the mother of PW.1. They were residents of Doddakanya village Mysuru Taluk. Accused also belonged to the same village. On 26.04.2014 between 6.30 and 7.00 p.m when PW.1 was alone in the house, accused No.1 trespassed into the house, gagged her mouth with cloth, closed the door of the house and committed rape on her. By that time, PW.2 returned home and tapped the door. Accused No.1 escaped from the house removing the roof tiles of the bathroom of -4- CRL.A No. 952/2017 the house. Then PW.1 opened the door and narrated the incident to PW.2. On the complaint of the PW.2, PWs.4,5 and 10 the village elders advised PWs.1 and 2 not to proceed till they holding a panchayath.
(ii) On 27.04.2014 when PW.2 was grazing the sheep in the land, accused Nos.2 and 3 came there and threatened her of her life, if she proceeds to file complaint against them. At that time, PW.10 intervened and pacified the quarrel. On 27.04.2014 PWs.4, 5 and 10 had convened the panchayat in the village. The accused defying the panchayat went away. Thereafter, on 30.04.2014 PW.1 filed complaint as per Ex.P1 before PW.12 the PSI of Mysuru South Police Station. On registering the FIR Ex.P13, PW.12 handed over the further investigation to PW.13-CPI.
PW.13 conducted the investigation and filed the Charge sheet.
5. The case of the prosecution was based on the following evidence:
(i) PW.1 the victim/complainant; -5- CRL.A No. 952/2017 (ii) PW.2 the res gestae witness, who allegedly
witnessed accused No.1 entering into the house of PW.2 and running away from the house after the commission of the offence;
(iii) PWs.4, 5 and 10 the village elders who convened the panchayat;
(iv) PW's.9 & 10 the alleged eye witnesses to the incident of accused intimidating and assaulting PW.2 in the land;
(v) PW.6 the doctor who examined the accused and submitted the report Ex.P6 to the Investigating Officer;
(vi) PW.7 the doctor who examined the victim PW.1 and issued medical report as per Ex.P7;
(vii) PW.8 the Headmistress of Higher Primary School, Doddakanya village who issued Exs.P8 to 10 regarding date of birth of PW.1;
(viii) PW.11 the doctor who conducted ossification test of PW.1 submitted the report Ex.P12;
(ix) PW.12 the Police Sub-Inspector who registered the FIR; and -6- CRL.A No. 952/2017
(x) PW.13 who conducted investigation and filed the Charge sheet.
6. The trial Court on conducting the trial and hearing the parties by the impugned judgment and order acquitted the accused on the following grounds:
i) That the victim PW.1 being aged below 18 years was not proved by acceptable evidence;
ii) Accused No.1 committing rape on PW.1 was not proved beyond reasonable doubt;
iii) The accused have probabilised their defence that PWs.1 and 2 have falsely implicated them in the case due to the rivalry viz., accused No.1 opposing the sale of liquor in the village by the uncle of PW.1.
Reg. Victim PW.1 being minor.
7. In a case of child sexual abuse the prosecution has to prove beyond reasonable doubt that the victim was aged below 18 years and that the accused committed sexual assault on her.
8. According to the prosecution, PW.1 was aged 17 years at the time of the incident. The said fact was disputed -7- CRL.A No. 952/2017 by the accused. How the age of Juvenile in conflict with law or the victim child has to be proved was dealt with by the Hon'ble Supreme Court in State of Madhya Pradesh. vs. Anoop Singh1. In para 14 of the said judgment, referring to its earlier judgment in Mahadeo vs. State of Maharashtra2, the Hon'ble Supreme Court held as follows:
"14. This Court in Mahadeo v. State of Maharashtra has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under:
"12. (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;1
(2015)7 SCC 773 2 (2013)14 SCC 637 -8- CRL.A No. 952/2017
(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 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, record 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."
(Emphasis supplied)
9. The reading of the above judgment goes to show that to prove the age of the victim, matriculation or equivalent certificate has to be produced. In the absence of the same the second option is to produce the date of birth certificate from the school where the victim first attended. In the absence of that the prosecution has to produce the birth certificate issued by a Corporation or Municipal -9- CRL.A No. 952/2017 authority or a panchayat. Only in the absence of the aforesaid evidence, the Investigating Officer has to subject the victim for the medical /ossification test.
10. In this case, admittedly PW.1 had studied up to VII Std and she had taken admission in Government Higher Primary School of Doddakanya village. The prosecution relied on Ex.P8 the date of birth certificate issued by PW.8 to the Investigating officer to the effect that as per the school records the date of birth of PW.1 was 26.04.1997. PW.8 says that such certificate was issued based on Ex.P9 their School Admission Register extract and Ex.P10 certified copy of transfer certificate issued by the Headmistress of Government Higher Primary School, Doddakanya Village which was submitted at the time of admission to Doddakanya Higher Primary School. Ex.P9 is the admission register extract. But the author of the said document was not examined.
11. As per the judgment in Anoop Singh's case referred to supra it is not the transfer certificate but the date of birth certificate issued by the first school that has to
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CRL.A No. 952/2017be produced and proved. The Investigating Officer had no explanation why he did not collect the admission register extract of the Primary School, Doddakanya which was first attended by PW.1. He did not cite the said school authorities as charge sheet witness. Again PW.8 does not say who furnished the date of birth particulars at the time of admission. Therefore, the evidence of PW.8 with regard to the date of birth was of no avail to the prosecution. In the absence of any concrete material in proof of date of birth of the victim, the evidence of PWs.1 and 2 is also of no avail with regard to age of PW.1. Even as per the Ossification Test Report Ex.P12 and the evidence of PW.11 who conducted the Ossification test, the age of the victim is above 17 years and below 18 years. In the light of judgment in Anoop Singh's case referred to supra, the Investigating Officer should not have resorted to ossification test without making attempts to collect the other records mentioned therein.
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CRL.A No. 952/2017
12. The Hon'ble Supreme Court in the judgment in Vishnu vs. State of Maharashtra3 has held that the ossification test report leaves a margin of two years on either side. As per PWs.1 & 2 themselves PW.1 was aged 17 plus. Therefore the only possibility is PW.1 being elder by 2 years of 17-18 years. Thus the evidence of PW.11 who issued Ex.P12 is of no avail to prove that the victim was aged below 18 years. If the prosecution fails to prove that the victim was aged below 18 years, then the offence under Section 4 of the POCSO Act does not attract. Therefore, the trial Court was justified in holding that the prosecution has failed to prove that the victim was aged below 18 years and the charge under Section 4 of the POCSO Act was not proved.
Reg. Charge of sexual abuse:
13. It was contended that if Section 4 of the POCSO Act is not attracted on account of proof of age of the victim, at least Section 376 of IPC applies. To prove the said fact the prosecution has relied on the evidence of PW.1 victim.
Her evidence was sought to be corroborated by the 3 (2006)1 SCC 283
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CRL.A No. 952/2017evidence of her mother PW.2 res gestae witness, PW.3, panchayathdars-PWs.4, 5 and 10 and the medical evidence.
14. PW.3 who allegedly witnessed the accused entering into the house of the victim and after committing the rape running away from the scene of offence did not support the prosecution case. PWs.4, 5 and 10 the panchayathdars also did not support the prosecution case and they turned hostile. Nothing was elicited in the cross examination of PWs.3 to 5 and 10 to show that they have any reason much less strong reason to turn hostile. Then what remained to prove the offence was the evidence of PWs.1, 2 and the medical officer PW.7.
15. As rightly pointed out by the Trial Court, though the offence allegedly took place on 26.04.2014 between 6.30 p.m. to 7.00 p.m., and PW.2 also learnt about the incident during the same day, the complaint was filed on 30.04.2014 at 3.00 p.m. The said delay had to be explained. The explanations of PWs.1 and 2 was that PW.2 informed the incident to PWs.4, 5 and 10 and they asked her to wait till they decide the matter in panchayat. But
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CRL.A No. 952/2017PWs.4, 5 and 10 totally turned hostile and did not support the theory of PWs.1 and 2 revealing the incident to them. They deposed that neither PW.2 informed about the incident nor they assured her to convene the panchayat. They did not even the support the version of the complaint and PWs.1 and 2 of accused defying the panchayat and thereafter they filing the complaint. Therefore such delay in filing the complaint creates doubt about the genuineness of the complaint.
16. Ex.P13 shows that FIR was received in the Court on 03.05.2014 after 3 days of registration of the complaint. PWs.12 and 13 have not given explanation for such delay in delivering the FIR. Such delay in registering the FIR and delivering the same to the Court itself creates doubt that there was some deliberation in filing the complaint. Further the evidence of PWs.12 and 13 clearly shows that they did not even try to record the statements of the police constable who carried and delivered the FIR to the Court. PWs.1 and 2 have admitted in their cross examination that the uncle of PW.1 was carrying on illicit liquor business in the village and accused No.1 had
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CRL.A No. 952/2017objected the same. They have also admitted that a complaint was filed against the uncle of PW.1 regarding that incident, he was arrested and was sent to jail in that case. Admissions of PWs.1 and 2 probabilized the animosity of the complainant against the accused. In that background the prosecution was required to lead evidence in strict proof of the charge.
17. The evidence of PWs.1 and 2 showed that the house/scene of offence was surrounded by the other houses and was in residential locality. If PW.1 had raised alarm, that would not have gone unnoticed by the residents of the locality. According to PW.1 accused No.1 trespassed into the house by closing door of the house and on committing the offence, on arrival of PW.2 he removed the tiles of the roof and escaped. To prove the same, the prosecution relied on the evidence of PW.1 and Ex.P2 the spot mahazar. As per the contents of Ex.P2 the accused had removed two tiles of the roof of the bathroom of the house. The said roof was at the height of 8 feet. Despite denial of Ex.P2 the prosecution did not examine the mahazar witness to prove the same.
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CRL.A No. 952/2017
18. Then the only evidence that remained was that of PWs.1 and 2 who had some ill-will against accused No.1. When the spot mahazar Ex.P2 says that two tiles were removed, PW.2 in her cross examination states that accused No.1 had removed four to five tiles. Further if accused No.1 had removed four to five tiles and escaped, there should have been some damage to the other adjacent tiles or that part of the roof. But Ex.P2 does not indicate any of them. Therefore the Trial Court rightly suspected and rejected the theory that accused No.1 escaped from the scene of offence by removing the tiles of the roof of the bathroom.
19. So far as the commission of penetrative sexual assault, under the aforesaid circumstances, PW.1's evidence required corroboration. PWs.2's evidence was also doubtful. The other witness who was relied to prove the incident was, PW.3 who allegedly witnessed the accused entering into the house and running away from the house. He did not support the prosecution case and turned hostile. Even in his cross examination, the prosecution could not
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CRL.A No. 952/2017elicit that he had any reason much less strong reason to turn hostile.
20. The other evidence relied on was that of PW.7 - the doctor who examined PW.1 and issued certificate as per Ex.P7. PW.7 in her chief examination deposes that PW.1 revealed to her that since one month, accused No.1 was luring PW.1 of sexual relationship, which she had denied, ultimately on 26.04.2014 at about 7.00 p.m. he committed the offence. But neither in the complaint nor in the evidence of PWs.1 and 2, there were such allegations of accused No.1 luring PW.1 of such sexual favour. That is not found even in the report Ex.P7. Such kind of evidence of PW.7 creates doubt about the evidence of PWs.1 and 2 that accused No.1 abruptly trespassed into the house and committed rape on her. Such version also creates doubt about the evidence of PW.7. When it is not the case of PWs.1 and 2 that PW.1 had suffered bite injuries on her lower lip and one of her teeth was broken in the incident, PW.7 says that on examination she found such injuries on
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CRL.A No. 952/2017PW.1. With all that PW.7 gave the opinion that there were no traces of commission of sexual assault on PW.1.
21. Having regard to such evidence, the Trial Court justifiably held that there were major contradictions in the evidence of PWs.1, 2 and 7 which go to the root of the matter and create doubt about the core case of the prosecution regarding commission of sexual assault. The Trial Court on sound appreciation of the evidence came to such conclusion that the charge of sexual assault was not proved beyond reasonable doubt.
Reg.offence under Sections 504, 506 and 323 of IPC
22. It is the case of the prosecution that when PWs.1 and 2 thought of filing the complaint and convening the panchayat, enraged accused Nos.1 to 3 assaulted PW.2 in her land on 27.04.2014 at 4.00 p.m. When the first incident of commission of rape, which is the basis for the alleged acts of accused No.1 to 3 itself failed, the said charges had no legs to stand. Apart from that the said evidence of PWs.1 and 2 did not get any corroboration by the evidence of PWs.4, 5, 9 and PW.10 the alleged eye
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CRL.A No. 952/2017witness to the incident dated 27.04.2014. Apart from that PW.2 was not subjected to any medical examination for the alleged injury. Therefore, the Trial Court was justified in acquitting the accused for the said charges also. Conclusion:
23. It is settled law that in an appeal against acquittal, the Appellate Court shall be slow in interference. Unless it is shown that the judgment and order of acquittal suffers glaring illegalities leading to injustice, such acquittal shall not be interfered. The above discussions show that no glaring illegality leading to injustice is found in the case. The appeal deserves no merit. Hence the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE AKC List No.: 2 Sl No.: 2