Karnataka High Court
Sri H R Lokesh vs The State Of Karnataka on 20 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 551 of 2016
C/W CRL.A No. 1055 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 551 OF 2016
C/W
CRIMINAL APPEAL NO. 1055 OF 2016
IN CRL.A.551/2016
BETWEEN:
Digitally SRI H R LOKESH
signed by D S/O LATE SRI.RAJU
K BHASKAR AGED ABOUT 36 YEARS
Location: CENTERING WORK
High Court RESIDENT OF PUTANINAGAR
of Karnataka
MADIKERI
KODAGU DISTRICT-571201.
...APPELLANT
(BY SRI. RAJARAM S - ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY C.P.I., MADIKERI TOWN CIRCLE
MADIKERI, KODAGU DISTRICT
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
DR.B.R.AMBEDKAR VEEDHI
BENGALURU-560001.
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CRL.A No. 551 of 2016
C/W CRL.A No. 1055 of 2016
2. SMT KUSUMA H P
W/O SUNDARA
CAUVERY LAYOUT
MADIKERI
KODAGU-571201
...RESPONDENTS
(BY SRI. VIJAYAKUMAR MAJAGE - ADDL. SPP FOR R-1;
R-2 SERVED AND UNREPRESENTED)
THIS CRL.A. FILED U/S.449 CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 01.02.2016 AND ORDER DATED
03.02.2016 PASSED BY THE PRL. SESSIONS AND SPL. JUDGE,
KODAGU-MADIKERI IN SPL.C.(POCSO) NO.21/2014 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 376(2)(i) R/W 511, 363 AND 506 OF IPC AND SEC.3 AND
4 OF POCSO ACT, 2012 AND SENTENCING HIM TO UNDERGO
IMPRISONMENT AND TO PAY FINE.
IN CRL.A.1055/2016
BETWEEN:
THE STATE OF KARNATAKA
BY CIRCLE POLICE INSPECTOR
MADIKERI TOWN CIRCLE
MADIKERI, KODAGU DISTRICT
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001.
...APPELLANT
(BY SRI. VIJAYAKUMAR S. MAJAGE - ADDL. SPP)
AND:
1. SRI H R LOKESH
S/O LATE RAJU
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CRL.A No. 551 of 2016
C/W CRL.A No. 1055 of 2016
AGED ABOUT 36 YEARS
CENTERING WORK
RESIDENT OF PUTANINAGAR
MADIKERI
KODAGU DISTRICT-571201.
2. SMT KUSUMA H P
W/O SUNDARA
CAUVERY LAYOUT
MADIKERI
KODAGU-571201
...RESPONDENTS
(BY SRI. RAJARAM S - ADVOCATE FOR R-1
R-2 SERVED AND UNREPRESENTED)
THIS CRL.A. FILED U/S.449 CR.P.C PRAYING TO MODIFY
THE ORDER OF SENTENCE IMPOSED BY THE LEARNED PRL.
SESSIONS AND SPECIAL JUDGE, AT KODAGU - MADIKERI
DATED 01.02.2016 AND 03.02.2016 IN SPECIAL CASE
(POCSO) NO.21/2014 AND IMPOSE APPROPRIATE AND
ADEQUATE SENTENCE AGAINST THE RESPONDENT / ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 506,
376(2)(I) R/W SECTION 511 OF IPC AND SECTION 4 OF THE
POCSO ACT, 2012.
THESE CRIMINAL APPEALS, COMING ON FOR DICTATING
JUGMENT, THIS DAY, K. SOMASHEKAR .J., DELIVERED THE
FOLLOWING:
COMMON JUDGMENT
Since both these appeals arise out of the same
judgment rendered by the Trial Court, they are heard
together and are disposed of by this common order.
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CRL.A No. 551 of 2016
C/W CRL.A No. 1055 of 2016
2. Both these appeals are directed against the
Judgment of conviction and order of sentence dated
01/03.02.2016 rendered by the Prl. Sessions & Special
Judge at Kodagu-Madikeri in Special Case (POCSO)
No.21/2014. By the said judgment, the Trial Court
convicted the accused for offences punishable under
Sections 363, 506, 376(2)(i) read with Section 511 of the
IPC and Section 4 of the POCSO Act, 2012 and sentenced
him to undergo imprisonment for a period of 5 years and
to pay a fine of Rs.10,000/- for the offence punishable
under Section 376(2)(i) read with Section 511 of the IPC,
with default clause; further to undergo imprisonment for a
period of 5 years and to pay a fine of Rs.5,000/- for the
offence punishable under Section 363 IPC, with default
clause; further to undergo imprisonment for a period of 3
years and to pay a fine of Rs.3,000/- for the offence
punishable under Section 506 IPC, with default clause and
further to undergo imprisonment for a period of 5 years
and to pay a fine of Rs.5,000/- for the offence punishable
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under Section 4 of the POCSO Act, 2012, with default
clause. All the sentences were to run concurrently.
Crl.A.No.551/2016 is filed by the appellant / accused
seeking to allow the appeal by considering the grounds
urged therein and thereby to acquit the accused of the
aforesaid offences. The connected appeal
Crl.A.No.1055/2016 is filed by the State seeking to impose
appropriate and adequate sentence against the respondent
/ accused for the offences punishable under Sections 363,
506, 376(2)(i) r/w Section 511 of IPC and Section 4 of the
POCSO Act, 2012.
3. Heard the learned counsel Shri Rajaram S for the
appellant / accused in Crl.A.No.551/2016 and for the
respondent in Crl.A.No.1055/2016 and the learned HCGP
Shri Vijayakumar S. Majage for the State in both appeals.
4. Perused the impugned judgment of conviction and
order of sentence rendered by the Trial Court in Spl.C
(POCSO) No.21/2014 and so also the evidence of PW-1 to
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CRL.A No. 551 of 2016
C/W CRL.A No. 1055 of 2016
PW-17 inclusive of Exhibits P1 to P18 and MO-1 to MO-8
marked on the part of the prosecution and also DW-1
examined on the part of the accused and Exhibit D1
marked on behalf of the accused.
5. Factual matrix of the appeals is as under:
It transpires from the case of the prosecution that on
24.05.2014 at about 1.30 p.m., the accused namely H.R.
Lokesh, had abducted the victim girl aged about 16 years
from the Junction Road in front of St. Joseph's Convent at
Madikeri Town and took her in a Scooter to an old house
situated near Lotus Cottage on Galibeedu road. In the
second room of that house, the accused is said to have
committed penetrative sexual assault on the victim girl
forcibly against her will and without her consent by giving
life threat to her.
6. On filing of a complaint by the complainant / H.P.
Kusuma, the mother of the victim girl, a case was
registered in Crime No.120/2014 by the Madikeri Town
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P.S. for the offences reflected therein. Subsequent to
registration of the crime, the Investigating Officer had
taken up the case for investigation and conducted
thorough investigation by complying with the relevant
provisions of the Cr.P.C. During investigation, the I.O.
recorded the statement of witnesses and also drew the
mahazar in the presence of panch witnesses apart from
securing medical evidence inclusive of the Medical Report
relating to subjected to examination the victim girl and so
also FSL report and then laid the charge-sheet against the
accused before the Committal Court.
7. Subsequent to laying of the charge-sheet against
the accused, the Committal Court had passed an order
under Section 209 of the Cr.P.C. and committed the case
to the Court of Sessions for trial. Accordingly, the case in
Spl.C.(POCSO) No.21/2014 was registered against the
accused wherein the accused were secured for trial.
Subsequently, the Trial Court heard the arguments of the
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learned Spl. Public Prosecutor and the defence counsel and
framed charges against the accused for the offences
punishable under Sections 363, 506, 376(2)(i) read with
Section 511 of the IPC and Section 4 of the POCSO Act,
2012. The charges were read out to the accused in a
language known to him, but he denied the charges and
claimed to be tried. Accordingly, charges were framed and
plea of the accused was recorded by the Trial Court.
Subsequent to framing of charges by the Trial Court
against the accused, the prosecution let in evidence of
PW-1 to PW-17 and got marked several documents at
Exhibits P1 to P18 and so also got marked MO-1 to MO-8.
On the part of the defence side, accused was examined as
DW-1 and Exhibit D1 / Arrest memo was got marked.
8. Subsequent to closure of the evidence of the
prosecution, the incriminating statement of the accused as
contemplated under Section 313 Cr.P.C. was recorded,
whereby the accused had denied the truth of the evidence
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of the prosecution adduced so far. Accordingly it was
recorded. Subsequent to recording the incriminating
statements of the accused, the Trial Court had called upon
the accused to enter into defence evidence as
contemplated under Section 233 Cr.P.C. Accordingly, the
accused examined himself as DW-1 and got marked
Exhibit D1. Subsequent to closure of the evidence on the
part of the prosecution and defence, the Trial Court had
heard the arguments advanced by the learned Spl. PP and
so also the counter arguments advanced by the defence
counsel. Thereafter, the Trial Court had gone through the
evidence of PW-1 / Smt. H.P. Kusuma, the mother of the
victim based upon whose complaint criminal law was set
into motion and FIR was recorded as per Exhibit P9.
a) PW-1 / Smt. H.P. Kusuma has stated in her
evidence that her sister's son namely Rajesh had written a
police complaint as per her instruction and she lodged the
said complaint as per Exhibit P1 at about 8.30 p.m. on the
date of occurrence of the incident itself, based upon which
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criminal law was set into motion. PW-1 being the author
of the complaint has stated in her evidence that they went
to the scene of crime and saw the victim / PW-2, who on
enquiry, had narrated the incident stating that the accused
had abducted her in his scooter forcibly to Galibeedu old
building and therein he had forcible sexual intercourse
with her twice, as a result of which she had pain in her
private parts. This witness was subjected to cross-
examination at length on the part of the defence side.
However, no worth mentioning points were elicited to
discredit her evidence in respect of the sexual assault, as
observed by the Trial Court.
b) PW-2 / victim girl has deposed that on
24.05.2014, her parents had not taken lunch to their work
place. Therefore, herself and Darshan had carried lunch to
her parents at about 1.30 p.m. and while returning home,
Darshan went home hurriedly and that she was going
slowly. At that time, near the backside of her Convent
School, the accused had come in a red scooter and had
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forced her to board the scooter. When she refused, he
gave her life threat and forcibly made her board the
scooter and took her to Galibeedu to a lonely old building,
wherein he committed forcible sexual intercourse on her
twice. Thereafter he is said to have left her in the spot
and gone away. PW-2 has further stated in her evidence
that when she was returning to her house, near Nursing
Hostel, she met her parents and disclosed about the
incident to them. From there, she was taken to police
station and that her mother gave a police complaint.
Thereafter on 25.05.2014, the police are said to have
taken her to Madikeri Government Hospital and examined
her. She identified the Medical Certificate at Exhibit P2
and MOs 1 to 4. On 28.05.2014, the police had taken her
to the spot from where she was abducted and then she
was taken to the place of scene of crime and in the said
two places, police are said to have drawn spot of
abduction and sexual intercourse for mahazar as per
Exhibit P3. These are the evidence let in by PW-2.
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Thereafter, the victim / PW-2 was subjected to cross-
examination relating to the accused having had forcible
sexual intercourse on her. Her voluntary statement under
Section 164 Cr.P.C. was recorded as per Exhibit P4. The
victim has also identified the accused before the Court and
in this regard, the police have recorded her statement.
During the course of trial, she has also identified the
photos taken at the time of mahazar, which are marked at
Exhibits P7 and P8.
c) PW-3 / Shri Sundara, being the father of the
victim girl has deposed that on 25.05.2014, the police
took him to the house of the accused where they seized a
red scooter and one black pant of the accused and
conducted mahazar as per Exhibit P5. He identified the
photos at Exhibit P6 and MO-5 and MO-6. The evidence of
PW-3 corroborates with the facts narrated at Exhibit P1
complaint and corroborates with the evidence of PW-1 and
further corroborates with the evidence of PW-4 / Manju,
panch witness. PW-3 was also subjected to cross-
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examination but no worthwhile points were elicit to
disbelieve his evidence as contended by prosecution.
d) PW-4 / Shri Manju is the panch witness to Exhibit
P5 being the clothes and scooter seizure mahazar.
e) PW-5 / Shri H.S. Muthappa is the panch witness to
Exhibit P3 being the place of kidnap and the place of rape
mahazar.
f) PW-6 / Shri Ramesh H.G. is also a panch witness
to Exhibit P3 being the place of kidnap and the place of
rape mahazar.
g) PW-7 / Smt. Savitha is the woman Police
Constable who has stated regarding taking the victim girl
to Madikeri District Hospital for medical check up.
h) PW-8 / Shri B.C. Devaiah is the Head Constable
who has also stated regarding taking the accused Lokesh
to Madikeri District Hospital for medical check up.
i) PW-9 / Shri Harish P is the Police Constable who
has stated regarding receiving the FIR and complaint from
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the Station House Officer on 25.05.2014 and submitting
the same to the Special Judge.
j) PW-10 / Shri Ravikumar is the Police Constable
who has stated regarding the arrest of the accused on
25.05.2014 at about 10.00 a.m. near Junior College Road
and producing him before the CPI.
k) PW-11 / Shri M.M. Bharath is the PSI /
Investigating Officer in part who has received the
complaint at Exhibit P1 from PW-1 Smt. Kusuma and
based upon her complaint, criminal law was set into
motion by registering a case in Cr.No.120/2014 by
recording an FIR as per Exhibit P9.
l) PW-12 / Sister Arulamma is the Head Mistress of
St. Joseph's Convent who has stated regarding issuing of
Study Certificate as per Exhibit P10 and issuing Age
Certificate as per Exhibit P11 stating the date of birth of
the victim girl as 25.12.1999.
m) PW-13 / Dr. K.K. Jeevan Prakash is the Medical
Officer who has deposed that on 25.05.2014, the accused
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Lokesh was brought by HC-95 with the history of rape on
a minor girl. On examining the accused, the Doctor issued
the certificate as per Exhibit P13.
n) PW-14 / Dr. Shanthijyothi K is the Blood Bank
Medical Officer who has deposed that on 25.05.2014 at
about 4.00 a.m., in the early morning, the victim girl aged
about 15 years was brought by the WPC by name Latha,
to the casualty and subjected to examination. PW-14 had
collected 16 articles and handed over the same to WPC-
201 and she issued the certificate as per Exhibit P2. After
getting the reports from FSL and Pathology Department,
PW-14 had given her final opinion as per Exhibit P14
stating that, as there are no fresh injuries seen in and
around the genital region and no recent signs of sexual
intercourse present, the Doctor opined that there is no
evidence to suggest that recent sexual intercourse has
occurred.
o) PW-15 / Dr. Harsha T.L. is a Senior Specialist who
has deposed that on 25.05.2014, Dr. Shanthijyothi / PW-
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14 had referred the victim girl for medical examination and
he issued the certificate as per Exhibit P2.
p) PW-16 / Dr. K. Shilpa is the Doctor who had
issued RFSL report at Exhibit P15 after examining 4
articles pertaining to the victim.
q) PW-17 / Shri P.B. Bosaiah is the CPI and the
Investigating Officer who has stated regarding sending the
victim girl to the Government Hospital for medical
examination and arresting the accused and seizing the
pant, shirt and one scooter of the accused under mahazar
Exhibit P5. He had also conducted the spot mahazar
Exhibit P3 and prepared 2 sketches as per Exhibits P16
and P17 and obtained school certificate as per Exhibit P10.
9. These are the evidence let in by the prosecution
and on appreciation of the evidence, the Trial Court had
arrived at a conclusion that the prosecution has proved the
guilt of the accused beyond all reasonable doubt and
rendered a conviction judgment in respect of the offences
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stated supra. It is this judgment which is under challenge
in this appeal by urging various grounds.
10. Learned counsel Shri Rajaram S for the appellant
in Crl.A.No.551/2016 has taken us through the narration
of the incident in the complaint made by PW-1 / mother of
the victim girl that on the fateful day, the accused is
alleged to have abducted her in his scooter and had taken
her to Galibeedu old building where he is said to have
committed sexual assault on the victim girl. Based upon
her complaint at Exhibit P1, criminal law was set into
motion by recording the FIR wherein it indicates offences
punishable under the IPC, 1860 and so also for offences
under the POCSO Act, 2012.
11. The statement of PW-2 / victim girl was recorded
as contemplated under Section 164 of the Cr.P.C. But she
did not give any evidence relating to commission of an
offence by the accused as narrated that the accused had
forcible sexual intercourse upon her. PW-14 / Doctor
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Shanthijyothi K has deposed that she had collected 16
articles and handed over the same to WPC 201 Smt. Latha
and issued certificate as per Ex.P.2. After getting the
report from FSL and Pathology Department, Mysore, the
Doctor has given her final opinion as per Ex.P.14 stating
that "as there are no fresh injuries seen in and around
genital region and no recent signs of sexual intercourse
present and she opined that there is no evidence to
suggest that recent sexual intercourse had occurred."
Hence, the evidence of PW-14 Dr. Shanthijyothi K, clearly
manifests that there was no recent sexual intercourse.
Hence, it is contended that the complaint itself is a false
complaint and Section 376(2)(ii) of IPC and Section 3 and
4 of POCSO Act do not attract to the case on hand. In so
far as the ingredients of the said offences are concerned,
the prosecution has miserably failed to bring home the
guilt of the accused by facilitating worthwhile evidence.
12. PW-15 / Dr. Harsha T.N., Senior Specialist has
deposed before the Trial Court that he examined with
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regard to genital of the victim / PW-2. According to him,
no external injuries were found on her private parts.
Hence, the evidence of the Doctors PW-14 and PW-15
clearly reveals that the entire complaint averments made
is false and only to suit the purpose in order to register the
crime against the accused. Simply because crime is
registered against the accused, it would not serve any
purpose unless there is cogent, corroborative, positive and
acceptable evidence put forth by the prosecution.
Therefore, in the instant case, it requires for re-
appreciation of the evidence in a proper perspective, that
is the evidence of PWs 1 and 2. If not, the accused would
become the sufferer and it would lead to a miscarriage of
justice.
13. It is further submitted that PW-16 / Dr. K. Shilpa,
Associate Professor, Department of Pathology, after
examination of 4 articles pertaining to the victim CW-2
and the RFSL Report, has opined that it is a negative one.
It clearly reveals that there is no material with regard to
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the alleged offence. Hence, Section 376(2)(i) of IPC and
Sections 3 and 4 of POCSO Act do not attract, in the
instant case.
14. It is also contended by the learned counsel for
the appellant that accused deposed before the Trial Court
that one year prior to the incident, when he was in the
workshop belonging to one Sri. Ramesh, he met the victim
girl and that she took his mobile number and used to call
him daily. It is also stated that so many times the
appellant had scolded her saying that he is a married man
and that she should not call him further. But, the said
victim did not listen to his words. So, the deposition of the
accused clearly reveals that the victim was trying to get
money from him in an illegal way. Hence, it is contended
that she has given a false complaint. But the Trial Court
has not considered the statement of the Accused.
15. It is further stated that DW-1 / Accused had
deposed before the Trial Court that on 24.05.2011 at
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about 1.00 P.M., the victim had called the Accused and at
the same time he scolded the girl and once again at 2.00
P.M., he received a phone call from her and again he had
scolded her. It is thereafter that she has given the
complaint against the Accused for the alleged offences and
thereafter he was arrested at 10.00 P.M. on the same day.
The statement of DW-1 / Accused manifests that the
complaint itself is a false complaint and has been filed with
a view to grab money by illegal mode. The Trial Court has
not considered the statement/deposition by the Accused
and proceeded to pass the impugned Judgment and Order
on the basis of the false complaint. Hence, it is contended
that the Judgment rendered by the Trial Court is liable to
be set aside as suffers from infirmities.
16. It is also contended that the occurrence of the
incident has not been proved and the Mahazar also is not
acceptable and it is not in accordance with law. Under
these circumstances, it is contended that the conviction of
the Accused on the basis of the unreliable evidence, is not
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sustainable. On all these grounds, the learned counsel
for the accused / appellant in Crl.A.No.551/2016 prays to
allow the appeal and thereby to acquit the accused of the
alleged offences and further prays to dismiss the appeal
filed by the State in Crl.A.No.1055/2016.
17. Contrary to the arguments advanced by the
learned counsel for the appellant, the learned Addl. SPP
for the State Shri Vijayakumar Majage has taken us
through the theory of the prosecution, that too the
evidence of PW-1 / the mother of the victim who has filed
the complaint as per Exhibit P1. Based upon her
complaint, criminal law was set into motion by registering
the case for offences punishable under Sections 363, 506,
376(2)(i) read with Section 511 of the IPC and Sections 3
and 4 of the POCSO Act, 2012.
18. PW-1, the mother of the victim girl has narrated
in her complaint that the minor girl / PW-2 was abducted
by this accused near Convent Junction in his scooter and
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was taken to Galibeedu old building, where he forcibly
removed her clothes and committed sexual intercourse on
her twice. PW-2 / victim girl has also categorically stated
about the incident of rape and further, her deposition is
corroborated by the depositions of PW-1 / Smt. Kusuma
and PW-3 / Shri Sundara, parents of PW-2 and their
evidence is also supported by the evidence of PW-14 / Dr.
Shanthijyothi, who has fully supported the prosecution
version.
19. PW-2 / victim girl was secured by the I.O. and
was produced before the JMFC, Madikeri, who recorded
her statement under Section 164 Cr.P.C. Further, the
victim girl has also identified the accused during the
course of trial. These are the evidence on the part of the
prosecution to prove the guilt against the accused. In
view of the fact that the Doctor who had examined the
victim girl having opined that there was no recent sexual
activity, it cannot be said that the accused did not commit
the said act and further, it cannot be a ground to acquit
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the accused. The evidence of the Doctor K.K. Jeevan
Prakash / PW-13 also has to be borne in mind who has
stated after examining the accused that, there is nothing
to suggest that the accused was incapable of doing sexual
intercourse. When the evidence of the victim girl is fully
corroborated with the evidence of PW-1 / her mother and
PW-3 / her father and other supporting witnesses, which is
also fortified by the expert opinion of the Medical Officers
namely PWs 14 and 15 which are corroborative, consistent
and firm in nature, the Trial Court has rightly convicted
the accused for the offences punishable under Sections
363, 506, 376(2)(i) read with Section 511 of the IPC and
under Sections 3 and 4 of the POCSO Act, 2012. Hence,
the learned Addl. SPP contends that the judgment of
conviction and order of sentence rendered by the Trial
Court being justified, it does not warrant interference by
this Court in this appeal. Hence, he prays that the
appeal in Crl.A.No.551/2016 filed by the appellant /
accused be rejected by confirming the judgment of
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conviction and order of sentence rendered by the Trial
Court in Spl.C.No.21/2014. Further, he prays that the
appeal in Crl.A.No.1055/2016 be allowed and appropriate
and adequate sentence be awarded to the accused for the
alleged offences.
20. In the context of the contentions made by the
learned counsel for the appellant / accused in
Crl.A.No.551/2016 and the learned Addl. SPP for the
State, it is relevant to refer that on 24.05.2014 at about
2.30 p.m., the accused namely H.R. Lokesh, had abducted
the victim girl aged about 16 years from the Junction Road
in front of St. Joseph's Convent at Madikeri Town. He took
her in a Scooter to an old house situated near Lotus
Cottage on Galibeedu road, where the accused is said to
have committed penetrative sexual assault on the victim
girl forcibly against her will and without her consent, by
giving life threat to her.
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21. On filing of a complaint by the complainant / H.P.
Kusuma, the mother of the victim girl, a case was
registered in Crime No.120/2014 by the Madikeri Town
P.S. for the offences reflected therein. Subsequent to
registration of the crime, the Investigating Officer had
taken up the case for investigation and conducted
thorough investigation by complying with the relevant
provisions of the Cr.P.C.
22. In this regard, it is relevant to refer to the
evidence of PWs 1, 2, 3, 14, 15 and 16. They are material
witnesses on the part of the prosecution. The FSL report
is negative and the Doctors have opined that there are no
injuries on the private part of the victim girl and that there
is also no sign of recent sexual activity. However, the Trial
Court has rendered a conviction judgment without
appreciating the evidence of the witnesses in a proper
perspective. Therefore, the conviction judgment requires
to be interfered with by this Court. If not, it would result
in a miscarriage of justice.
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23. In the instant case, PW-2 being a minor girl who
has alleged offences under the POCSO Act, but her
evidence requires to be weighed on a golden scale, as the
testimony of a child witness has to be assessed carefully
because, it can form the basis of conviction. Her evidence
must be credible, trustworthy and corroborated by other
witnesses namely with the medical evidence brought on
record. Corroboration is not a must to record conviction
but it is a rule of prudence.
23. Keeping in view Section 134 of the Indian
Evidence Act, it is well-known principle of law that reliance
can be based upon even solitary statement of witnesses if
the Court comes to the conclusion that the said statement
is the true and correct version of the case of the
prosecution. Insofar as Section 134 of the Indian
Evidence Act, it is the quality of evidence and not the
quantity of the evidence which is required to be judged by
the Court to place credence on the statement.
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24. Section 3 of the POCSO Act is definition clause
relating to 'penetrative sexual assault' containing four
segments. Section 4 of the POCSO Act relates to
punishment of penetrative sexual assault, containing three
segments. The first segment states that, whoever
commits penetrative sexual assault shall be punished with
imprisonment of either description for a term which shall
not be less than ten years but which may extend to
imprisonment for life, and shall also be liable to fine.
Segment (3) of Section 4 of the POCSO Act states that the
fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical
expenses and rehabilitation of such victim. Merely
because the provisions of Sections 3 and 4 of the POCSO
Act are invoked, the accused cannot be convicted by the
Court unless the guilt against the accused is established
beyond all reasonable doubt. But in the instant case,
merely though PW-1 and PW-2 victim, PW-3 and several
witnesses have been examined, on a close scrutiny of the
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evidence, it is found that there are inconsistencies and
contradictions in their evidence and more so, do not
inspire confidence in the mind of the Court to render
conviction judgment for offences under the IPC, 1860 or
POCSO Act, 2012. The same is seen from the evidence of
PW1, 2 and 3 coupled with the evidence of PWs 13, 14, 15
and 16. But PWs 13, 14, 15, 16 are official witnesses.
Merely because the statement of witnesses were recorded
after criminal prosecution was launched, it cannot be said
that the entire narration of the incident is gospel truth,
unless the prosecution establishes the guilt of the accused
beyond all reasonable doubt.
25. In the instant case, PW-2 / minor girl aged 16
years was abducted by the accused and committed sexual
intercourse upon her against her will, which is evident
from the theory put forth by the prosecution. But there is
no evidence let in by the prosecution to prove the guilt of
the accused. It is settled position of law that it is quality
of evidence and not quantity of evidence which is taken
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into consideration and evidence has to be weighed and not
counted according to the provision of Section 134 of the
Indian Evidence Act. If the evidence is not appreciated in
a proper perspective, it would lead to a miscarriage of
justice and the accused would be the sufferer. On a close
scrutiny of the evidence of PW-1, her evidence is
contradictory to the evidence of PW-2 / victim aged about
16 years. But PW-2 had given statement under Section
164 Cr.P.C. wherein her statement as well as the evidence
let in by her on behalf of the prosecution is further
contradictory to the evidence of PW-1 / author of the
complaint at Exhibit P1. Even at a cursory glance of the
evidence of the Doctor who subjected to examination PW-
2 / victim girl, no medical evidence is put forth on the part
of the prosecution to prove that the accused had forcibly
committed sexual intercourse on the victim girl by
abducting her in his scooter to the place of occurrence.
Insofar as the age factor is concerned, there is evidence
on the part of the prosecution that even ossification test
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revealed that the age of the victim girl was between 15 to
18 years. But there is no specific evidence on the part of
the prosecution that she was a minor girl as on the date of
the incident. PW-2 even though was subjected to cross-
examination at length, but her evidence is not credible or
believable version to secure conviction relating to the
offences. More so, even the school documents have been
secured by the I.O. during the course of investigation and
the same was got marked on the part of the prosecution
relating to her age proof at Exhibits P10 and P11. Merely
because of production of documents, it cannot be said that
the prosecution has proved the guilt of the accused
relating to her age and that she was a minor as on the
date of the incident as narrated in the complaint made by
her mother who is examined as PW-1. In the instant case,
the contents at Exhibits P10 and P11 relating to the age
and so also the evidence of the Doctor who examined the
victim girl, their witnesses are contradictory in nature.
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26. In the totality of the circumstances of the case, it
indicates that the prosecution has miserably failed to
establish the guilt against the accused. Despite of the
same, the Trial Court has rendered a conviction judgment
for offences under the IPC and under Sections 3 and 4 of
the POCSO Act. But in this regard, it is relevant to refer to
a judgment of the Hon'ble Supreme Court in the case of
RAI SANDEEP @ DEEPU vs. STATE OF NCT OF DELHI
((2012 (8) SCC 21)) relating to 'sterling witnesses' has
been dealt with and considered by the Hon'ble Apex Court.
In our considered opinion, the 'sterling witness' should be
of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the
version of such witness should be in a position to accept it
for its face value without any hesitation. To test the quality
of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness
of the statement made by such a witness. What would be
more relevant would be the consistency of the statement
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right from the starting point till the end, namely, at the
time when the witness makes the initial statement and
ultimately before the Court. These are the observations
made by the Hon'ble Apex Court. The same squarely
applies to the present case on hand. Therefore, we are of
the opinion that the judgment of conviction rendered by
the Trial Court requires interference. If not interfered
with, certainly the accused being the gravamen of the
accusation would be the sufferer and it would result in a
miscarriage of justice. On a close scrutiny of the
impugned judgment, it is found to suffer from infirmities
and also inconsistencies and contradictions and there is no
cogent evidence to believe the theory put forth by the
prosecution. When the doubt arises in the evidence of
prosecution, the benefit of doubt always accrues in favour
of the accused alone. In the instant case, the trial Court
did not appreciate the evidence in a proper perspective
manner. Therefore, in this appeal warranting
circumstances arise, since the prosecution has not proved
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the guilt of the accused beyond all reasonable doubt.
Therefore, in terms of the aforesaid reasons and findings,
it is deemed appropriate for intervention of the impugned
judgment of conviction rendered by the trial Court.
Accordingly, I proceed to pass the following:
ORDER
Crl.A.No.551/2016 preferred by the appellant / accused under Section 449 of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction dated 01.02.2016 and order of sentence dated 03.02.2016 rendered by the trial Court in Spl.Case (POCSO) No.21/2014 is hereby set-aside. Consequent upon setting aside the judgment of conviction, the accused is hereby acquitted for the offences punishable under Sections 363, 506, 376(2)(i) read with Section 511 of of IPC, 1860 and Sections 3 and 4 of the POCSO Act.
If any bail bond has been executed by the accused, the same shall stand cancelled.
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NC: 2023:KHC:21338-DB CRL.A No. 551 of 2016 C/W CRL.A No. 1055 of 2016 Further, the appeal in Crl.A.No.1055/2016 preferred by the State, stands dismissed, being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE KS