Karnataka High Court
State Of Karnataka vs Bharathesh on 20 February, 2017
Bench: B.S Patil, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF FEBRUARY, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
CRIMINAL APPEAL No.575/2016
BETWEEN:
State of Karnataka
By Davanagere Women Police
Represented by SPP
High Court of Karnataka,
Bangalore - 577 001.
...APPELLANT
(By Sri.Chethan Desai, HCGP)
AND:
Bharathesh,
Son of late Parashuram,
25 years, R/O 1st Cross,
I Main, Vijaya Nagara Badavane,
Kondajji Road,
Davanagere - 577 001.
...RESPONDENT
(By Sri. M.Vishwajith Rai, Adv.)
*****
2
This Criminal Appeal is filed under Section
378(1)(3) of Cr.P.C. praying that this Hon'ble Court may
be pleased to a) grant leave to appeal against the
judgment and order of acquittal dated 17.10.2015
passed by the learned II Addl. District and Sessions
Judge and Spl. Judge at Davanagere in
S.C.No.33/2015, thereby acquitting the
respondent/accused for the offences P/U/S.366 of IPC
and Sec.6 of POCSO Act and Sec.3(1)(xi), 3(2)(v) of
SC/ST (POA) Act and etc.,
This Criminal Appeal coming on for admission this
day, B.V.NAGARATHNA J. delivered the following
judgment:
JUDGMENT
This appeal has been filed by the State Government assailing the judgment and order of
acquittal passed by the II Additional District and Sessions Judge and Special Judge at Davangere in S.C.No.33/2015 dated 17.10.2015. By the said judgment, the respondent-accused has been acquitted of the offences punishable under Section 366 of the Indian Penal Code (IPC) and Section 6 of Protection of Children from Sexual Offences (POCSO) Act, 2012, and 3 Section 3(1)(xi), 3(2)(v) of SC/ST (Prevention of Atrocities) Act.
2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows:
It is the case of the prosecution that on 3.9.2013 at 10.00 a.m. the respondent-accused kidnapped the complainant's minor daughter Kum.Chaitra from the custody of her parents with an intention to marry her without the knowledge and consent of her parents. He took her to a temple at Udupi, married her by tying a turmeric piece on her neck and thereafter committed sexual assault on her in the house of PW14 - Vishwanatha, situated at Bhatkal, knowing fully well that she belongs to Scheduled Caste. The jurisdictional police filed the charge sheet against the accused for the aforesaid offences. After registering the case, investigation was made and accused was arrested and 4 produced before the Court on 20.11.2014 and thereafter was remanded to the judicial custody.
3. After completion of investigation, charge sheet against the accused was filed in respect of the aforementioned offences. The presence of the accused was secured and the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined as many as 16 witnesses and produced 17 documents which were marked as Exs.P1 to P17. Statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was recorded, wherein he has denied the incriminating evidence adduced against him. He has not let in any evidence. Thereafter, the Special Court heard the matter and after formulating the points for consideration and on considering the evidence on record has acquitted the respondent-accused. 5
5. We have heard the learned High Court Government Pleader appearing for the appellant-State. The learned High Court Government Pleader has taken us through the judgment of the trial Court and has contended that the trial Court has not appreciated the case of the prosecution in its proper perspective and therefore the judgment of acquittal is liable to be set aside. We have considered the submission of the learned High Court Government Pleader appearing for the appellant-State and perused the material on record.
6. In order to prove the case of the prosecution Ex.P9 has been produced to show that at the time of committing the offence, PW2 was only sixteen and half years old and a minor and therefore the sexual assault on her is punishable under Section 6 of POCSO Act. But the evidence of PW2 is full of contradictions. In her cross-examination she has admitted that she had taken the accused along with her, forced him to marry her and 6 had sexual intercourse with him and had begotten a child. In substance, she has stated that she has found no fault on the part of the accused. In fact, this evidence is corroborated by her mother's evidence who has stated that, she did not consent to the marriage of PW2 with the accused, she eloped with him, got married and after having a child returned home. In fact, she wanted to withdraw the complaint against the accused. When PW1 had categorically deposed that there was no force on the part of the accused and neither was any adverse circumstance established, it cannot be held that the accused was guilty of the offence punishable under Section 366 of the IPC. In fact, PW2 the prosecutrix has further deposed that, she was willing to marry the accused, whereas, the accused had requested her to postpone the same for two years, but she did not agree to do so. Therefore, she and accused left Davangere for Udupi and after getting married indulged in sexual acts 7 which cannot be construed to be a sexual assault within the meaning of Section 6 of POCSO Act. In fact, she has given birth to a child. The other independent witnesses have also not supported the case of the prosecution.
7. The prosecution relied upon Ex.P9 to contend that at the relevant point of time she was a minor and that it must be construed that she was not aware of the consequences of her acts and neither her consent can have any validity in law. But a doubt is cast on Ex.P9, as the evidence of PW2 indicates that when the time she left her house she was 18 years of age. In fact, the opinion of the dentist in this regard has also been obtained. It is stated that PW2 was one year above 17 years or one year less than 17 years. Thus, there is no categorical evidence brought on record by the prosecution to come to the conclusion that PW2 was a minor at the relevant point of time. There is a doubt with regard to her age and also with regard to the very 8 fact as to whether the respondent had committed any offence against PW2. This is because, if PW2 is held as not proved to be a minor, then the charges framed against the respondent-accused would itself fall to the ground with respect to Section 6 of POCSO Act which would not apply. Further, when PW2 herself voluntarily and on her own volition accompanied the respondent- accused to Udupi and left her parents' house on her own choice with the object of marrying the accused and thereafter begetting a child, it cannot be held that any offence under the SC/ST (PA) Act has been committed by the accused. Further, no offence punishable under Section 366 of Indian Penal Code would arise.
8. Having regard to the aforesaid discussion it is clear that the finding arrived at by the trial Court holding that the prosecution has failed to prove the guilt of the accused for having committed the offences is justified, we find that the findings of the trial Court does 9 not suffer from any error or illegality warranting interference in this appeal. Further the trial Court was justified in acquitting the respondent for the offences punishable under Section 366 IPC, Section 6 of POCSO Act and Section 3(1)(xi), 3(2)(v) of SC/ST (PA) Act. In the circumstances, we find no merit in the appeal. The appeal is, hence, dismissed.
9. At this stage we may also note the submission made at the Bar to the effect that PW2 on her own having married the accused has begotten two children and they are living happily together.
Sd/-
JUDGE Sd/-
JUDGE ap