Karnataka High Court
State Of Karnataka vs Masood Hussain @ Twinker on 16 August, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No. 356 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 356 OF 2017 (A)
BETWEEN:
State of Karnataka
By D J Halli P.S.
Rep By State Public Prosecutor,
High Court of Karnataka,
Bangalore-01
...Appellant
(By Sri. Gnanesh H. Kempanna, HCGP )
AND:
1. Masood Hussain @ Twinker
S/o B Nawaz,
Digitally signed
by
BHARATHIDEVI
Aged About 34 Years,
K KORLAHALLI
Location: High R/at No. Near Mujeeb Tea Stall,
Court of
Karnataka Nehrupuram,
Bharathinagar,
Bangalore-560056
2. Smt. Jakira
W/o Late Syed Sumshuddin,
Aged about 42 Years,
R/at No.60, Khuddus Compound,
Near Panchayath Hall,
Besides Mayor Public School,
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CRL.A No. 356 of 2017
D.J.Halli Main Road,
D.J.Halli,
Bangalore-45.
3. Ayesha
D/o Sayyad Shamshuddin
Aged about 20 Years
R/at 60, Khuddus Compound,
Near Panchayath Hall
Next To Mayor Public School
D.J. Halli Main Road
D.J. Halli
Bengaluru 560045.
...Respondents
(By Sri. Mohammed Haroon Rasheed, Advocate for R-1,
And Mrs.Vanajakshi P., Advocate for R-2 and R-3 )
This Appeal is filed under Section 378(1) and (3) of Code
of Criminal Procedure, praying to grant leave to file the appeal
against the order of acquittal in Spl.C.C.No.205/2015, dated
05.07.2016 passed by LIII Addl. City Civil and Session Judge at
Bengaluru acquitting A1 for the offence punishable under
Section 376 IPC and Section 5(L)(m) r/w Section 6 of the
Protection of Children from Sexual Offences Act, 2012 and
accused No.2 under Section 16 r/w Sec.17 of POCSO Act, 2012
and set aside the judgment of acquittal passed in
Spl.CC.No.205/2015 dated 05.07.2016 passed by LIII Addl.
City Civil and Session Judge at Bengaluru acquitting A1 for the
offences punishable under Section 376 IPC and Section 5(L)(m)
r/w Section 6 of the POCSO Act and Accused No.2 under
Section 16 r/w Sec 17 of POCSO Act, 2012 and convict the
respondents in Spl.C.C.No.205/2015 on the file of LIII City Civil
and Session Judge at Bengaluru i.e., A1 for the offences
punishable under Section 376 IPC and Section 5(L)(m) r/w 6 of
the POCSO Act and accused No.2 under Section 16 r/w Sec.17
of POCSO Act, 2012 and pass such other order that this Court
deems fit necessary in the interest of justice.
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CRL.A No. 356 of 2017
This Criminal Appeal is coming on for Hearing through
Physical Hearing/Video Conference this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 05.07.2016, passed by the learned LIII Addl.City Civil and Sessions Judge, Bengaluru, (hereinafter for brevity referred to as the `Sessions Judge's Court') in Special C.C.No.205/2015, acquitting accused No.1 of the offence punishable under Sections 376 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC') and Section 5(l)(m) read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as `POCSO Act') and accused No.2 of the offence punishable under Section 16 read with Section 17 of POCSO Act.
2. The summary of the case of the prosecution as could be gathered from the charge sheet is that, the -4- NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 complainant, who is the respondent No.3 herein, was studying in 4th standard schooling during the year 2015. The accused No.1, who is the respondent No.1 herein, was the paramour of accused No.2, who is the respondent No.2 herein. The accused No.1 was frequently visiting the house of accused No.2 and was sleeping with accused No.2. The same has been seen by the complainant. The accused No.2 is a widow of deceased husband Syed Samshuddin, who died while the complainant, who is his daughter, was still a small girl. On the date 25.12.2014, the accused No.1 had been to the house of the complainant and in the guise of taking the measurement for stitching the dress to the complainant, misbehaved with her and forcibly made her to undress herself. Accused No.2 supported the accused No.1 and made her daughter i.e., the complainant to undress. Thereafter, the accused No.1 took the complainant to a room in the house of accused No.2 and committed rape upon her. Accused No.2 knowing the same, had allowed accused No.1 for the said act. According to the prosecution, even though the -5- NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 complainant complained before her mother i.e., accused No.2, about the incident, however, accused No.2 did not take any preventive steps, rather, she allowed the accused No.1 for ten more days to continuously visit their house and to repeat his act of alleged sexual intercourse with the complainant continuously for those ten days. It was only when the complainant vomited in the school to which she was attending, her Class Teacher noticed the same and enquired, at which, the complainant revealed the entire details before her School Teacher. It is thereafter, the School Teacher Smt.Anita sent the girl with the ladies staff of the school to the Police Station. The complainant herself lodged a complaint with the police on 12.01.2015. After getting the alleged victim girl (complainant) to medical examination and conducting the investigation, the police claimed to have filed charge sheet against the accused for the offence punishable under Section 376 of IPC and Section 5(l)(m) read with Section 6 of POCSO Act. -6-
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3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges against the accused No.1 under Section 376 of IPC and Section 5(l) read with Section 6 of POCSO Act and framed charges against accused No.2 under Section 16 read with Section 17 of POCSO Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined two witnesses as PW-1 and PW-2 and got produced and marked documents from Exs.P-1 to P-4(b). From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 05.07.2016, acquitted accused No.1 of the offence punishable under Section 376 of IPC and Section 5(l)(m) read with Section 6 of POCSO Act and accused No.2, for the offence punishable under Section 16 read with Section 17 of -7- NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 POCSO Act. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant -State is represented by the learned High Court Government Pleader and respondent No.1 and respondent Nos.2 and 3/accused are represented by their respective learned counsels. The learned High Court Government Pleader and the learned counsels for the respondents (accused) are physically appearing in the Court.
6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
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9. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond all reasonable doubt that on the date 25.12.2014, at 12.00 O'Clock in the midnight, the accused has committed rape on CW-1-
complainant/victim girl who was minor in her age, in the house of accused No.2 at D.J.Halli, Bengaluru, within the limits of complainant-Police Station and accused No.1 repeated the similar act of sexual assault upon the complainant on the subsequent few days against the very same complainant in the same place and thus, has committed the offences punishable under Section 376 of IPC and Section 5(l)(m) read with Section 6 of Protection of Children from Sexual Offences Act, 2012?
(ii) Whether the prosecution has proved beyond reasonable doubt that accused No.2 has abetted the above said criminal act of accused No.1 in committing the rape on CW-1/victim girl and thus has committed the offence punishable under Section 16 read with Section 17 of Protection of Children from Sexual Offences Act, 2012?
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(iii) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
10. Learned High Court Government Pleader appearing for the appellant-State in his argument submitted that even though the victim girl who was examined as PW-1 has not supported the case of the prosecution, her evidence shows that accused No.1 was a person known to their family and was visiting their house. Her evidence also shows that accused No.1 was staying several nights in their house. Moreover, her statement under Section 164 of Cr.P.C., also go to show that it was the accused No.1 who has committed the alleged offences against her.
Learned High Court Government Pleader further submitted that the doctor who examined the victim girl, was examined as PW-2, who in his evidence has stated that he has examined the victim girl and has noticed the signs of recent sexual intercourse with the girl, in which regard, he has given his report at Ex.P-3. The very same
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 doctor has examined the accused also and has noticed by his examination that nothing was there to hold that the accused was not capable of having sexual intercourse. Learned High Court Government Pleader submitted that the medical evidence corroborates the prosecution version, however, the trial Court has not noticed the said aspect in its proper perspective which has resulted in passed it an erroneous judgment of acquittal against the accused.
11. Learned counsel for respondent No.1/accused No.1 in his arguments submitted that in order to prove the alleged guilt against the accused, the prosecution has examined only two witnesses. The important and material witness is PW-1 (CW-1) the complainant, who has given a complete go-by to the case of the prosecution. Merely because she has stated that accused No.1 was a known person, by that itself, the occurrence of the alleged offence against the complainant, that too, by none else than accused No.1, cannot be dreamt of. As such, the mere medical evidence stating that girl was subjected to
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 sexual intercourse does not mean that accused No.1 has committed the said act. With this, he submitted that the impugned judgment as such does not warrant any interference at the hands of this Court.
12. Learned counsel for respondent Nos.2 and 3 in her single sentence argument submitted that she has nothing to say in the matter, except that the complainant- victim girl has already been married and leading a happy marital life.
13. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused No.1 for the offence punishable under Section 376 of IPC and Section 5(l)(m) read with Section 6 of POCSO Act and accused No.2, for the offence punishable under Section 16 read with Section 17 of POCSO Act. Therefore, the accused have primarily the double benefit. Firstly, the presumption under law is that, unless their guilt is proved, the accused have to be treated as innocent in the alleged crime.
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 Secondly, the accused are already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(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
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 reinforced, reaffirmed and strengthened by the trial court.
42(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."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
14. Even though the charge sheet has shown fifteen witnesses as charge sheet witnesses, however, the prosecution it ended up
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 in examining only two witnesses i.e., the alleged victim girl (CW-1) as PW-1 and one Dr.B.M.Nagaraj, the Medical Officer (CW-10) as PW-2 and four documents were marked from Exs.P-1 to P-4(b). Thus, for the reasons best known to it, the prosecution did not chose to examine any other witnesses, except these two witnesses.
15. PW-1 (CW-1) the alleged victim girl in her examination-in-chief has stated that accused No.2 is her mother. However, she categorically and specifically stated that accused No.1 has never misbehaved with her indecently and never committed any sexual assault upon her. She also specifically stated that her mother i.e., accused No.2 has never co-operated or abetted the alleged crime against her by accused No.1. She has stated that, she has not given any statement before the police. Though she has identified her signature on a document shown to her, but, she stated that she has subscribed her signature to the said document in the complainant-Police Station without knowing what is
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 written in it. The said document, which according to the prosecution, was a complaint said to have been lodged by her, was marked at Ex.P-1 and the signature of the witness identified by her was marked at Ex.P-1(a). She was shown another signature of her for identification, which the witness has identified, the said document after calling it as a statement under Section 164 of Cr.P.C., was marked as Ex.P-2. One more signature was identified by the witness. The said document shown to be a medical examination report of the complainant was marked at Ex.P-3 and the signature of the witness therein at Ex.P-3(a).
Since this witness in very clear terms had given a go-by to the case of the prosecution, she was treated as hostile and at the request of the prosecution, was permitted to be cross-examined by the prosecution.
In her cross-examination, she denied a suggestion that she had given her complaint before the police as per Ex.P-1 and also denied that the incident as narrated by the
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 prosecution in the charge sheet has occurred. It was suggested to her that since accused No.1 is in close terms with accused No.2, who is her mother, she is giving a false evidence, which also the witness has not admitted as true.
16. The other witness examined by the prosecution is PW-2 (CW-10) Dr.B.M.Nagaraj, Head of the Department of the Forensic Medicines at Dr.Ambedkar Medical College and Hospital, Bengaluru. The said witness in his examination-in-chief has stated that, on the date 12.01.2015, at the request of the complainant-Police Station, he examined the complainant in this matter who was brought by a Women Police staff of the complainant- Police Station. He recorded the history of the injured and after obtaining the consent for the physical examination of the victim girl, he examined the complainant. He has stated that, he saw few abrasions on the left side of the neck and middle of the right arm, which were healing and aged about one week. He has also stated that hymen of the victim girl was ruptured. He collected the vaginal
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 swab. The witness has also stated that since no stains were found on the dress material of the complainant-girl, he has not collected her dress material. The doctor has opined that, based on the dental examination, the age of the girl was between 12 to 16 years, as such, her average age was 13 years. The witness has specifically stated that by the genital examination of the alleged victim girl, he could find the signs of recent involvement in the sexual activity within a period of one week prior to the date of her examination. Stating so, the witness has identified his report at Ex.P-3.
17. PW-2 has further stated that, on the date 13.01.2015, he examined the accused in this case brought to him by the complainant-Police. He did not notice any external injury upon the accused and his growth was normal. By his physical examination and dental examination, his age was assessed at 32 years. The witness has opined that, by his examination, he did not find anything to hold that the accused was not capable of
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 involving in sexual activity. Stating so, the witness has identified his report at Ex.P-4.
18. In his cross-examination from the accused side, attempts were made by suggesting to the witness that there would be other reasons for the rupture of hymen of the girl, including cycling and athletic activities, however, the witness has not admitted those suggestions as true.
19. The prosecution even though had arraigned fifteen witnesses as charge sheet witnesses, however, for the reasons best known to it, it ended up in examining only two witnesses. Probably after noticing that the alleged victim girl has not supported the case of the prosecution and given a total goodbye to the case of the prosecution, it has given up the other witnesses from examining.
20. The sole witness, upon whom the prosecution has anchored, was the victim girl, however, as seen above, she has not supported the case of the prosecution even to a smallest extent. Except stating her relationship with
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 accused No.2 as her mother, she has not stated anything in support of the prosecution. Incidentally, the prosecution did not ask about the identity of accused No.1 to this witness. It did not even ask as to whether accused No.1 was visiting their house regularly or frequently. However, after reading the evidence of PW-1 in its entirety, we may have to presume that complainant was knowing accused No.1. Thus, at the threshold, the prosecution has not asked any important and material question for bringing out the alleged fact of the complainant knowing the accused. Even after getting the witness treated as hostile and giving permission to cross-examine the witness, the prosecution except making few suggestions about facts of alleged sexual assault upon her, as has been shown in her alleged complaint at Ex.P- 1, did not made any attempt to elicit further details about the alleged incident which could have supported the case of the prosecution. Thus, even in the cross-examination, the prosecution has given a clear go-by to its own case, except complying the formality of cross-examining PW-1.
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 Thus, primarily the prosecution has got no support from the material witness i.e., the complainant.
21. PW-2 - the doctor though has stated that he has examined both the complainant and the accused on two different dates and also has stated that he could see the signs of sexual intercourse with the complainant within a week just prior to the date of her examination, however, merely because the girl, who according to the said witness, was aged between 12 to 16 years, is shown to have undergone sexual activities, by that itself, it cannot be held that such a sexual act was committed by accused No.1 and accused No.1 alone. The medical evidence though says that the girl was subjected to sexual intercourse recently, however, the same evidence of PW-2 further shows that no stains were present on the dress material of the girl, as such, the dress material worn by her were not seized by the witness and sent to the police for its further chemical examination. Thus, even the doctor also appears to be under an impression that the
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 dress material were required to be collected, provided some visible stains were found on the dress material.
22. We are not happy with the said reasoning given by the doctor for non-collection of the dress material worn by the complainant. Further even though the medical examination of the accused and the report of the doctor at Ex.P-4 shows that the accused was fit and not incapable to have any sexual intercourse, but, by that itself, it cannot be held that the accused No.1 has committed any act of sexual intercourse, that too, with the complainant. Thus, on the basis of the available evidence, both oral and documentary evidence of PW-1 and PW-2 and the alleged statement of the victim before the police and her statement under Section 164 of Cr.P.C. and the medical reports, it cannot be held that there are either oral or documentary evidence to prove the alleged guilt against the accused.
23. As a part of the above observation, it also can be noticed that even though the alleged statement of the
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 victim girl under Section 164 of Cr.P.C., was marked as Ex.P-2, however, what was confronted to the witness was only a signature in the said document. The said document was not even got identified by the witness as a statement given before a Judicial Magistrate under Section 164 of Cr.P.C. Even the Court which recorded the evidence also has not got the said document either identified or confronted to the witness. On the other hand, merely because the signature alone was confronted, it marked the document as though it is a statement of the complainant under Section 164 of Cr.P.C. Thus, due to the non-confronting the contents of the said document to the witness and also not-bringing the said document to the notice of the witness for the purpose of identification of the nature of the said document, mere getting the signature of the witness identified in the said document also would not take the case of the prosecution any further.
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24. Thus, necessarily a conclusion can be drawn without further discussion that the prosecution has utterly failed to prove the alleged guilt against both the accused. As such, we do not find any reason to interfere in the impugned judgment passed by the Sessions Judge's Court.
25. However, before parting with the judgment, we would like to observe that, we are not happy about the manner in which the trial was conducted in the Sessions Judge's Court. The charge framed against accused No.1 shows that the alleged act of sexual intercourse and rape was taken place on the night at 12.00 p.m. on 25.12.2014, whereas, the point that was raised for consideration by the Sessions Judge's Court has shown the date, time and place of occurrence of the incident on 24.12.2014 at 12.00 a.m. Secondly, merely because the complainant-victim girl is said to have not supported the case of the prosecution, the other thirteen witnesses were not examined by the prosecution. The Court also did not ask the prosecution to
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 examine other material witnesses, including the panchas for the various panchanamas and the School Teacher, before whom the girl was said to have revealed about the incident for the first time after the girl was said to have suffered with some heath issues in the classroom. It also did not examine the other school teachers, including the Principal of the school where the alleged victim girl was said to have been studying. Thus, both the prosecution and the Sessions Judge's Court appears to have shown some reluctance in conducting a quality trial in the matter and have decided the fate of the accused the moment the victim girl shown to have not supported the case of the prosecution and given up all other material witnesses. However, since the Sessions Judge's Court has held that the prosecution has failed to prove the alleged guilt against the accused, we have no other option, but, to analyse both oral and documentary evidence placed before us in the matter. Since the said analysis has shown that the prosecution could not able to prove any of the guilt
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NC: 2023:KHC:28980-DB CRL.A No. 356 of 2017 alleged against either of the accused, we do not find any reason to interfere in the impugned judgment.
26. Accordingly, we proceed to pass the following:
ORDER The Criminal Appeal stands dismissed as devoid of merits.
The registry to transmit copy of the judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.
Sd/-
JUDGE Sd/-
JUDGE bk / List No.: 1 Sl No.: 7