Karnataka High Court
State Of Karnataka vs Dilleppa S/O Giriyappa Madivalara on 28 June, 2023
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NC: 2023:KHC-D:6400-DB
CRL.A No. 100237 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 100237 OF 2018 (A-)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
RANEBENNUR RURAL POLICE STATION,
DIST: HAVERI, THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE, HIGH COURT OF
KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
AND:
Digitally signed
by GIRIJA A
BYAHATTI
Location:
HIGHCOURT
DILLEPPA S/O. GIRIYAPPA MADIVALARA,
GIRIJA A
BYAHATTI
OF
KARNATAKA- AGE: 23 YEARS, OCC: AUTO DRIVER,
DHARWAD
BENCH
Date: R/O: MAIDURA PLOT, TQ: RANEBENNUR,
2023.07.03
13:21:50
+0530
DIST: HAVERI.
...RESPONDENT
(BY SRI. SUNIL S. DESAI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S.378 (1) & (3) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 03.02.2018 PASSED BY THE PRL. DIST.
AND SESSIONS JUDGE AND SPECIAL JUDGE, HAVERI, IN SPL.
S.C.NO.03/2016 AND TO CONVICT THE RESPONDENT/
ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTIONS
363, 366(A), 376, 506 OF IPC AND UNDER SECTION 4 OF
POCSO ACT.
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NC: 2023:KHC-D:6400-DB
CRL.A No. 100237 of 2018
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, VENKATESH
NAIK T. J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant - State has filed the present appeal against the impugned judgment and order of acquittal dated 03.02.2018, passed in Special S.C.No.3/2016 by the Principal District and Sessions Judge and Special Judge, Haveri, acquitting the respondent/accused for the offences punishable under Sections 363, 506, 366, 376 of IPC and under Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Facts of the case:
2. The brief facts of the prosecution case are as under:
The accused Dilleppa, an Auto driver, was in the habit of visiting the house of the complainant Sunil Anjaneyappa Sarathi (PW1) of Gangapur village, Ranebennur Taluk, in order to give fertilizers to the land, -3- NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 in his TATA ACE Goods Auto. Thus, the accused developed love with the daughter of the complainant, Victim (PW8), who was aged about 15 years then. PW1 and his family members came to know about the love affair of accused and the victim. They advised them not to continue the same. On 21.07.2013 at about 8.00 pm, the victim was interacting over phone and she came out of her house and at that time, accused came there, kidnapped her in his TATA ACE vehicle from her lawful guardianship, threatened her to take away her life if she reveals to her family members, The accused took the victim from Gangapur village to Ranebennur bus stand and then to Bengaluru, Sakaleshpur, Davangere and kept her in the house of PW14 - Ashok at Bengaluru and on 28.07.2013, accused committed rape on the victim, knowing that she was minor then, the accused committed sexual assault on the victim. Therefore, complainant has lodged the complaint against the accused as per Ex.P12.-4-
NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 On the basis of the complaint, Ranebennur Rural Police registered the case in Crime No.119/2013 and submitted FIR to the Magistrate and to their higher authorities as per Ex.P22 (FIR). Later, during the course of investigation, the Investigating Officer secured the victim and arrested the accused. They were undergone medical examination. Victim gave her statement under Section 164 Cr.P.C. before the Magistrate. After completion of investigation, Investigating Officer filed charge sheet against the accused for the offence punishable under Sections 363, 366A, 376 and 506 of the IPC and under Section 4 of the POCSO Act, 2012. After securing the presence of the accused before trial Court, charge was framed against accused, he pleaded not guilty and claimed to be tried, case was posted for evidence.
In order to prove charges against the accused, the prosecution in all examined 21 witnesses as PWs. 1 to 21 and got marked 26 documents at Exs.P1 to P26 and -5- NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 material objects as M.Os.1 to 7. On behalf of the defence, 6 documents were marked as Exs. D1 to D6.
After completion of evidence on behalf of the prosecution, statement of accused was recorded by the trial Court as contemplated under Section 313 Cr.P.C. The accused denied all the incriminating evidence appearing against him in the prosecution evidence, but he did not lead any defence evidence.
3. Based on the oral and documentary evidence, the trial Court framed the following points for consideration:
I. Whether the prosecution proves beyond all reasonable doubt that on 21.07.2013 at about 8.00p.m., at Gangapura village of Renebennur Tq.
While the victim came out of the house, the accused kidnapped her from her lawful guardianship and thereby committed an offence punishable u/s.363 IPC?
II. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused committed criminal intimidation by threatening the victim to take away -6- NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 her life and thereby committed an offence punishable u/S.506 of IPC?
III. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused by inducing the victim kidnapped the victim and took her to Bengaluru, Sakaleshpura and the to Davanagere and thereby committed an offence punishable u/S.366 of IPC? IV. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused kidnapped the victim and took her to Bengaluru and on 28.07.2013 in the house of CW.16 the accused committed rape on her and knowing that the victim is still minor, committed sexual assault on her and thereby committed an offence punishable u/S.376 IPC and u/S.4 of protection of children from Sexual offences Act, 2012?
V. What order ?
The learned Sessions Judge, after considering the entire oral and documentary evidence on record, recorded a finding that the prosecution has failed to prove that on 21.07.2013 at 8.00 pm, accused kidnapped the victim from her lawful guardianship at Gangapur village of Ranebennur Taluk, took her to Ranebennur, Bangaluru, -7- NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 Davanagere and Sakaleshapur, threatened her with dire consequence to take away her life, if she reveals the said fact to her family members, induced the victim and on 28.07.2013, in the house of PW14, accused committed rape on the victim knowing that she was minor then and thus committed sexual assault on her. The trial Court acquitted the accused for the alleged offences holding that the prosecution failed prove its case beyond reasonable doubt. Aggrieved by the judgment of acquittal the appellant-State has preferred this appeal.
4. We have heard the arguments advanced by the learned Addl. SPP for the appellant - State and the learned counsel for the respondent-accused. Arguments advanced by the learned Addl. SPP
5. Sri. V. M. Banakar, learned Addl. SPP for the appellant-State, contended that the judgment and order of acquittal passed by the trial Court is contrary to law, facts and evidence on record; PW6 - complainant and father of -8- NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 the victim, PW1 - mother of the victim and PW8 - victim, have specifically stated about the incident and the manner of kidnapping the victim from her lawful guardianship; PW5 - Subhas Gangannavar and PW9 - Somappa Nayak, who are owners of neighboring lands of the complainant, had seen the accused kidnapping the victim on the date of incident; But the trial Court has not properly read and appreciated their testimony in a proper perspective. The learned Addl. SPP further contended that, PWs. 4 and 6 being the parents of victim have deposed before the Court regarding the sexual assault committed by the accused as narrated by the victim girl before them; their evidence is natural as they are natural parents of victim and the same is admissible under Section 6 of the Indian Evidence Act. The learned Addl. SPP further submitted that, the victim - PW8 was minor girl at the time of incident; in her evidence she has categorically stated that the accused kidnapped her from her house, took her to Ranebennur and Bengaluru from 22.07.2013 to 25.07.2023, where the accuse kept the victim in his relatives house at -9- NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 Sakaleshapur, Davangere and Bengaluru and thereafter on 26.07.2013 to 30.07.2013, accused kept the victim in the relatives house of Sakaleshapur, where he committed sexual assault on the victim without her will and wish; But the trial Court has not read the evidence of PW8 on its proper perspective. Learned Addl. SPP further submitted that, PW18 is the Officer of BEO office, Ranebennur, who issued Ex.P13 - Birth Certificate, to show that the date of birth of the victim is 09.08.1998 and the date of incident was 21.07.2013; Hence she was minor then (16 years), but the trial Court has not properly appreciated the oral testimony of PW18 and Ex.P13 - school certificate issued by PW18; PW17 is the doctor who examined the victim girl on 06.08.2013 and issued the medical certificate as per Ex.P20 and opined that there is rupture of hymen and the victim is subjected to sexual assault. The trial Court has not appreciated the evidence of PW17 and the medical certificate; The trial Court has not properly appreciated the evidence of official witnesses, such as Police Officers, doctor, Officer from the BEO office, but acquitted the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 accused by giving the benefit of doubt to him. The learned Addl. SPP further submitted that, the trial Court has acquitted the accused on the ground that, while proceeding from Ranebennur to Davanagere, Bengaluru and Sakaleshpur, the victim has not protested or made hue and cry to secure the help of public, to get herself released from the clutches of the accused; Further, the trial Court observed that the victim on her own will and wish went along with the accused, but the said reasoning is not sustainable as the victim has clearly stated before the trial Court that, because of the life threat given to her by the accused, she did not raise her voice, but the said aspect has not been considered by the trial Court. The learned Addl. SPP further submitted that, PW8 - victim has categorically stated regarding the act of sexual assault committed by the accused on her and the medical officer has categorically stated that there is rupture of hymen and the victim was subjected to sexual assault, which was sufficient to convict the accused since the same is truthful and natural evidence. The learned Addl. SPP relied upon
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 the decisions of the Hon'ble Apex Court in the case of Santosh Bhai Vs. State of Orissa reported in 2014 (4) Crimes 226 and in the case of State of Bihar Vs. Raj Bellana Prasad reported in (2017) 2 SCC 178. On these grounds, learned Addl. SPP prayed to set aside the judgment of acquittal and also prayed to convict the respondent/accused for the offences punishable under Sections 363, 366A, 376 and 506 of the IPC and Section 4 of the POCSO Act, 2012.
Arguments advanced by the learned counsel for the respondent/accused
6. Per contra, Sri. Sunil S. Desai, learned counsel for the respondent/accused sought to justify the impugned judgment and order of acquittal and contended that all the prosecution witnesses have not supported the case of the prosecution; PW8 had been to various places with accused persons voluntarily and during the relevant period, she was loving the accused and therefore, the alleged offences does not attract; Even considering both oral and documentary evidence on record, the trial Court has
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 rightly acquitted the accused and the same is just and proper; This Court cannot interfere with the same under the provisions of Section 374(2) of Cr.P.C. Therefore, he sought to dismiss the appeal.
Points for consideration:
7. After bestowing our anxious consideration to the rival contentions raised at the bar and perusing the entire materials including the original records, the points that would arise for our consideration in this appeal are:
i. Whether the prosecution has made out any case for interference with the impugned judgment and order of acquittal, acquitting the accused for the offences punishable under Sections 363, 366A, 376 and 506 of the IPC and Section 4 of the POCSO Act, 2012, in the facts and circumstances of the case?
ii. What order or decree?
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NC: 2023:KHC-D:6400-DB
CRL.A No. 100237 of 2018
Re: Point No.1
8. In order to re-appreciate the oral and
documentary evidence on record, we feel it just and necessary to have cursory look on the evidence of the prosecution witnesses and the documents relied upon by the prosecution.
PW1 - Vasanagouda Gangannavarm, is the witness to the spot mahazer. He deposed in his evidence that, he knows the complainant and the victim and her family members; About three years ago prior to the date of recording his evidence, Ranebennur Rural Police came to their village, PW1 - Sunil shown the spot to the Police, where the accused kidnapped the victim girl; Hence the police prepared the spot panchanama and sketch as per Exs. P1 and P2 and also took the photographs as per Exs.P3 and P4. In the cross-examination, he admits that, he cannot say the schedule of the alleged spot and mahazer was conducted in between 6.00 pm to 9.00 pm and rest of the things are denied by him.
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 PW2 - Suresh Solabannavar, is witness to the seizure mahazer Ex.P5. In his evidence, he has stated that he do not know PW5 - complainant and he do not know the fact of kidnapping the victim by accused. According to PW2, about one year prior to the date of recording his evidence, the police came near Basaveshwara Agrotech Company, Ganagapura of Ranebennur, where the police seized the TATA ACE vehicle bearing registration No.KA 27/A 3724 and took the photograph as per Ex.P6. In the cross- examination he admits that he cannot say the date of seizure of the vehicle by the police; He do not know the contents of Ex.P5 - mahazer and he affixed his signature in the Police Station.
PW3 - Kenchappa Jangari, witness to the spot mahazer. In his evidence he has stated that he has witnessed to Exs.P7 to P9 mahazers, but he turned hostile to the case of the prosecution.
PW4 - Smt. Vidya Sarathi, is the step mother of the victim and second wife of the complainant (PW6). In her
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 evidence she has stated that, the first wife of the complainant by name Smt. Savitri died about 13-14 years ago and thereafter the complainant Sunil married her and she got two children; At the time of the incident, the victim was aged about 16 years and she was studying in IX standard at Ganagapura High School; She knows accused Dilleppa, who is the driver of TATA ACE Auto Rickshaw and he was supplying fertilizers, seeds etc., to the house of the complainant; She further deposed that, the victim was studying in the Government High School at Gangapur and the said school is in a distance of 1 km from Ganagapura village; Hence the victim while going to the school and returning from the school, accused was harassing her, interacted with her. In this regard, the victim informed the complainant and PW4; Therefore they advised the accused and the victim; She further deposed that, about two years ago at 7.00 pm, complainant PW4 and victim were in the house; at that time, the victim was interacting in mobile phone and she went outside as there was no network in the house; even after 20 minutes she
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 did not return home; thus the complainant PW4 her mother-in-law searched her, but she heard the hue and cry raised by the victim from some distance, she saw goods vehicle and the victim went in the said vehicle; there were 7-8 persons in the said vehicle; she saw accused in the said vehicle; Therefore, the complainant lodged the complaint to the Ranebennur Rural Police Station. After 15-20 days of the incident, police informed the complainant and PW4 about tracing of accused and victim and hence they lodged complaint to the police.
PW5 - Subhash Gangannavar and PW9 - Somappa Naik are stated to be the owners of adjacent land owners and they have deposed before the Court that, at the time of alleged incident they were in their agricultural fields and on hearing hue and cry near the house of the complainant, they saw moving of vehicle and with the help of torch light they saw the accused, who took the victim in his TATA ACE vehicle. Accordingly, they informed the incident to PW6 - complainant and his family members. In the cross-
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 examination of PW5, he has admitted that, he is a M.A. graduate, but not completed his LL.B degree. They further admits that, the farm house of complainant is situated in the agricultural land and there cannot be any street light or road facility to his house and at the time of alleged incident, there was no street light facility to enable the by passers to see as to who were all passing in the vehicle. According to PW5, victim was in the backside of the vehicle and in all 7-8 persons were there in the vehicle; He also admits that the accused was driving the vehicle and victim was in the backside of the vehicle.
PW6 - Sunil Sarathi, is the complainant and father of the victim. In his evidence, he has stated that the incident of kidnap was occurred between 7.30 pm and 8.00 pm in the night and in all 7-8 persons were there in the vehicle. He further stated that, the victim (PW8) is his daughter and he had two wives; His first wife was Savitri, who is none other than the mother of the victim; Savitri died about 13-14 years ago; After the death of Savitri in the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 year 2001, he married Vidya (PW4) and they are living in Anaveri village in his farm house. He further deposed that, his farm house is constructed in 20 acres of land and there are no neighboring houses near his house; He knows the accused Dilleppa, who was driving TATA ACE vehicle and who was supplying pesticides and seeds and he is the distant relative of PW6, who was oftenly visiting the house of PW6; During July, 2013, victim was aged about 16 years; At that time, accused was insisting the victim to marry him, but his daughter was denying to marry him; Therefore, on 21.07.2013, between 7.30pm and 8.00 pm, when PW8 was interacting in mobile phone and as there was no network in the house, she came out from the house, accused took her in his TATA ACE vehicle and there were 7-8 persons in the vehicle; At that time, PWs.5 and 9 came to the house of PW6 and they informed that the accused took the victim in his vehicle and they saw both of them in their torch light. Later, he went to the police station and lodged the complaint as per Ex.P12 and after 7-8 days of the complaint, police secured the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 victim and accused and enquired with the victim; She revealed that, soon after her kidnap, accused took her to Ranebennur and later to Sakaleshpura, where accused had sexual assault on her. He further stated that, the police visited the spot and prepared panchanama as per Ex.P1 and police also seized Tata ACE vehicle under Ex.P5.
PW7 - Basavaraj Allalli is witness to the spot panchanama (Ex.P7). He turned hostile to the case of the prosecution.
PW8 - is the victim in this case. In her evidence she has stated that, PW6 - Sunil is her father, PW4 - Smt. Vidya is her step-mother and she was studying in SSLC at Gangapur village during 2013 and her date birth is 09.08.1998; Her family was residing at the farm house situated at a distance of 2 km from Gangapur village; accused is her distant relative, who was supplying pesticides and seeds for agricultural operation; He came into contact with the victim during the year 2012 and he was loving her; This fact came to the knowledge of her
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 family members and her family members advised him; According to the victim, on 21.07.2013 at 7.30 pm, she was in her house and there was no electricity in the house; At that time, a phone call came and she came out of the house due to network issue inside the house; At that time, accused was standing in front of her house and he had parked his TATA ACE vehicle at a distance from her house; The accused forcibly took her in the TATA ACE vehicle and she raised hue and cry; At that time, accused threatened her to eliminate her family members, if she raised hue and cry; One Subhash (PW5), a friend of her father saw the victim and accused together in the TATA ACE vehicle; Later they went to Ranebennur bus stand in a separate vehicle; Later they went to Bengaluru and were residing in the house of PW12 - Hanumanthappa for four days; Later accused took her to Sakaleshwapur, where they stayed for seven days in the house of PW13 - Suma and PW14 - Ashok, where accused have had sexual intercourse with the victim against her will; Later accused and victim came to Davanagere and they stayed in the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 house of the aunt of accused PW10 - Neelamma Madiwalar for a period of three days and at that time, she came to know that her father lodged complaint in Ranebennur Police Station and hence PW10 - Neelamma brought accused and victim to Ranebennur and later her parents came and took her and accused to Ranebennur Rural Police Station, where the police recorded her statement, sent her for medical examination and seized M.Os.1 to 7. Later police took her to Ranebennur JMFC Court, where she gave her statement to the Magistrate under Section 164 Cr.P.C; Later accused took her to the house of PW12
- Hanumantappa at Bengaluru, where they conducted mahazer as per Ex.P7, took photograph as per Ex.P9 and sketch as per Ex.P10 and later they took her to Sakaleshpur and Davanagere.
PW8 - victim was undergone intensive cross- examination by the counsel for the accused. In the cross- examination she has categorically admitted that, accused is her distant relative; Accused came into contact with the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 victim through one Kavita, cousin of accused, who was friend of the sister of victim by name Varsha; She visited the house of said Varsha and hence the accused also came into contact with the victim during this period. She further admits that, she do not know the number of her mobile phone; on 21.07.2013 at 7.30 pm, accused called over phone and as soon as accused was found in front of her house, she left her house by interacting in phone. She further admits that, accused and victim came to Ranebennur bus stand at about 8.00 or 8.30 pm and there is a police station in Ranebennur bus stand, but at that time she did not raise hue and cry; As soon as they reached Bengaluru, at that time also she did not raise hue and cry; Further she did not raise hue and cry in Davanagere as well Sakaleshpur; She admits that from Bengaluru to Sakaleshpur and from Sakaleshpur to Davanagere, they traveled in public transport, but she did not raise hue and cry. She further admits that, her father completed LL.B degree and doing legal profession, however, this witness states that her father is not a
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 practicing advocate. The victim further admits that, she wrote love letters as per Ex.D3 to the accused.
PW9 - Somappa Naik, is the neighboring land owner, has deposed in line with PW5 - Subhash.
PW10 - Smt. Neelamma, is the aunt of accused and resident of Davanagere. In her evidence, she has stated that accused is the son of brother of her husband and she never saw the victim with the accused, he never brought the victim to her house and she never gave any statement before the police. Therefore, she turned hostile to the case of the prosecution.
PW11 - Prakash in his evidence has stated that, the victim and her father are his relatives; He came to know that the victim and accused eloped and during that period, he saw accused and victim in Ranebennur and hence informed the said fact to PW6 - Sunil and later they went to police station and gave statement before the police. PW11 has undergone intensive cross-examination. In the cross-examination, PW11 has admitted that, since one
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 year prior to 2013, he was not aware about the love affair of accused and victim; He is not aware about any advice given to accused by the family of victim; He admits that accused hails from poor family and PW6 - Sunil is a rich man. PW11 admits that, PW6 Sunil is his uncle. He denied the suggestion that the victim was loving one Rudresh, who was working in their house and PW6 kept the victim in Mumbai in the house of their relative.
PW12 - Hanumantappa Madiwalar is the resident of Bengaluru, where accused brought the victim to their house. But PW12 turned hostile to the case of the prosecution.
PW13 - Suma is the wife of PW14 - Ashok, who is the relative of accused and resident of Sakaleshapur, where accused brought the victim in their house. PW13 turned hostile to the case of the prosecution.
PW14 Ashok is the husband of PW13 and relative of accused. He also turned hostile to the case of the prosecution.
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 PW15 - Ravikumar Kabbar is the car driver, who accompanied Investigating Officer to Bengaluru, Sakaleshapur, Davanagere and Ranebennur, for the purpose of conducting mahazer. He turned hostile to the case of the prosecution.
PW16 - Dr. Shivayogi Gadad, is the Medical Officer of Government Hospital, Davanagere, who examined the accused and issued Ex.P19 - medical report about the competency of the accused to do sexual act.
PW17 - Dr. Bharati S. G, is the Medical Officer of C.G Government Hospital, Davanagere. She has stated that on 06.08.2013 at 9.30 pm, she examined the victim and issued the medical report as per Ex.P20. PW17 further deposed that, on examination of the victim, she found that the hymen was absent; There were possibilities of sexual activities. In the cross-examination she admits that if the victim was used the bicycle for going to school, there were every possibilities of tearing of hymen.
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 PW18 - Shivaraj Simikeri is the Officer at BEO Office, Ranebennur, who issued birth certificate of the victim (PW8) as per Ex.P13.
PW19 - Shashidhar is the PSI of Haveri Rural Police Station, who seized TATA ACE vehicle in Ex.P5 - panchanama and received Ex.D3 - letter from PW8.
PW20 - Jayappa Masanagi is the ASI of Hansabhavi Police Station. He received the complaint at Ex.P12 and registered the FIR at Ex.P22 and conducted spot panchanama (Ex.P1) and handed over further investigation of the case to his higher authorities.
PW21 - K. R. Nagaraj is the Investigating Officer, who conducted investigation and filed Charge Sheet against accused.
On the basis of the above evidence, the trial Court proceeded to acquit the accused.
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 Consideration
9. Having re-appreciated the entire oral and documentary evidence on record, it appears that PW1 - Vasanagouda witnessed to spot mahazer Ex.P1 and the place of kidnap. He has deposed that the police have conducted panchanama where the victim was kidnapped as per Ex.P1. PW2 - Suresh, who is the seizure mahazer witness of TATA ACE vehicle (Ex.P5) and PW3 - Kenchappa, who is the witness to the spot panchanama (Ex.P7) prepared at Sakaleshpura and seizure panchanama (Ex.P8), wherein M.Os. 1 to 7 were seized in their presence, have turned hostile to the case of the prosecution.
10. PW7 - Basavaraj Allalli also accompanied PW3 - Kenchappa and he is also a witness to Exs. P7 and P8 spot and seizure mahazers and turned hostile to the case of the prosecution.
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018
11. PW10 - Neelamma, is the aunt of accused and she is the resident of Davangere, in whose residence the accused alleged to have kept the victim, has also turned hostile to the case of the prosecution.
12. PW12 - Hanumantappa, who is the resident of Bengaluru, in whose residence the accused alleged to have kept the victim, has also turned hostile to the case of the prosecution.
13. PW13 - Smt. Suma and her husband PW14 - Ashok, who are the relatives of the accused, are the resident of Sakaleshpura, in whose residence the accused alleged to have kept the victim, has also turned hostile to the case of the prosecution.
14. PW15 - Ravikumar, who accompanied the Investigation Officer for conducting mahazers at Bengaluru, Sakaleshpura and Ranebennur have turned hostile to the case of the prosecution.
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15. Now, the evidence of PWs.4 to 6, 8, 9 11 and 16 to 21 are available. In this regard, it is relevant to examine the evidence of PW4 - Vidya, the step mother of the victim, PW5 - Subhash, neighboring land owner, PW6 - father of the victim, PW8 - victim, PW9 - Somappa, neighboring land owner of PW6 and PW11 - Prakash, who saw the accused and victim together in Ranebennur and later he informed the same to PW6.
16. On perusal of the complaint (Ex.P12), the incident of kidnap was occurred at 8.00 pm at Gangapur village of Ranebennur Taluk. On perusal of the evidence of PW4 - Vidya, she has stated that, at 7.00 pm, her daughter was kidnapped. Insofar as the presence of accused is concerned, PW4 has stated that, in all 7 to 8 persons were there in the vehicle. She further stated that, accused was driving the vehicle and victim was in the backside of the vehicle. As per the evidence of PW6 - Sunil, the incident of kidnap was occurred between 7.30
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 pm and 8.00 pm and in all 7 to 8 persons were there in the vehicle.
17. On perusal of the evidence of victim, i.e., P.W.8, she has categorically stated that on 21-7-2013, at 8-00 P.M., she came out of the house, at that time, accused came in his TATA ACE vehicle, took her in his vehicle, then took her to Ranebennur, and later he took the victim to the house of PW12 - Hanumanthappa at Bengaluru, however, PW12 - Hanumanthappa has turned hostile to the case of the prosecution. PW8 further deposed that, accused took her to Sakaleshpura, in the house of PWs. 13 and 14, where he alleged to have had sexual intercourse with her forcibly. In this case, PWs.13 and 14 have turned hostile to the case of the prosecution. PW8 further stated that, accused also took her to the house of PW10 - Neelamma at Davanagere and later PW10 Neelamma brought them to Ranebennur. But in this case, PW10 has also turned hostile to the case of the prosecution.
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018
18. In order to corroborate the oral testimony of P.W.8, none of the independent witnesses or the circumstantial witnesses, where accused kept her and have had sexual intercourse with her, have supported her oral testimony, except her step mother PW4 - Vidya and her father PW6 - Sunil.
19. On perusal of medical evidence, PW17 - Dr.Bharati has stated that, on 06.08.2013, at 9.30 pm, she examined PW8 victim and she conducted medical examination and she came to know that, hymen was absent; Therefore, there was possibility of sexual activity. But in the cross-examination, PW17 has admitted that, if the victim had used bicycle for her school, hence while riding the bicycle, there were possibility of tearing the hymen. On perusal of the evidence of PWs.4, 6 and 8, it reveals that, the distance between farm house of PW4 and the school is more than 2 kms and therefore, possibility of tearing hymen due to riding of bicycle cannot be discarded. The trial Court observed that, even hymen was
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 absent due to the sexual act with the accused, it was a consensual act from both sides, therefore, for such act accused alone cannot be blamed. In this regard, the trial Court has much gave reliance on Ex.D3 statement of PW8
- victim, Exs.D4 and D5 - letters, and Ex.D6 - statement of the victim and based on these documents, the trial Court has held that, it is consensual sex between accused and the victim.
20. On perusal of the evidence of PW8 (victim), it appears that, she has deposed as if the accused being the stranger had kidnapped her, took her to Bengaluru, Sakaleshapura and Davanagere and had sexual intercourse with her against her will. On the contrary, as per the evidence of PW6 - Sunil (father of the victim), one year prior to the alleged incident, there was yet another similar incident between the parties and on 15.08.2012, victim went with the accused and both have been traced by PW6 and the ASI of Ranebennur Police Station in Arasinahalli of Huvina Hadagali Taluk and on that day, in
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 spite of their best efforts, the victim and accused were escaped and on 16.08.2012, both were appeared in Ranebennur Police Station, and in this regard, PW6 did not lodge any complaint. Hence, considering this aspect of the matter, the trial Court observed that, victim and accused were in love with each other and as against the desire of family members, the victim went out of her house and moved with the accused here and there and such material aspect has not been whispered either by the victim - PW8 or her step mother PW4 - Smt. Vidya. It clearly establishes that, PW8 and her parents PWs.4 and 6 are not disclosing true facts before the Court and they have concealed the same. On the contrary, from perusal of Exs. D3, D4 and D6 and the admission of father of victim - PW6, it establishes that, accused and victim were very much fell in love and as against the desire of her family members, PW8 was moving on hand with the accused and she was moving behind the accused and even if there was any incident of both moving from their house on 21.07.2013, it was a joint collective act of the victim and
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 accused and for such voluntary act, accused alone cannot be blamed.
21. In cases concerning the offences under POCSO Act, sheet anchor of the arguments made on behalf of State is presumption that operates against accused under Section 29 of the POCSO Act. It is also contended that in cases pertaining to POCSO Act, as contended in the present case by learned Addl. SPP on behalf of the appellant-State, court has to presume that accused has committed the alleged offence for which he is charged under the said Act, unless contrary is proved. On this basis, it was submitted on behalf of the appellant-State that court has to presume that accused has committed the offence for which he is charged under the said Act, unless the contrary is proved. On this analysis, it is contended on behalf of the State that it is for accused to have proved contrary and burden was entirely upon him to prove his innocence, which he had failed to discharge.
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018
22. In light of aforesaid contention raised by the State, it is necessary to examine the effect of presumption arising under Section 29 of POCSO Act and the manner in which accused can rebut such presumption. Section 29 of the POCSO Act reads as follows:
"Section 29 - Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
23. Perusal of the above provision does indicate that it is for the accused to prove the contrary namely, he has not committed or abetted the commission of an offence under section 3, 5, 7 and 9 of the POCSO Act and in case he fails to do so, presumption would operate against him leading to his conviction under the provisions of the Act. It cannot be disputed that no presumption is
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 absolute and every presumption is rebuttable. It cannot be countenanced that presumption under Section 29 of the Act is absolute. It would come into operation only when prosecution is first able to establish the fact and that would form the foundation for presumption under Section 29 of the Act to operate. Otherwise, all the prosecution would be required to do, is to file a charge-sheet against the accused under the provisions of the said Act and then claim that evidence of prosecution witness would have to be accepted as gospel truth and entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the Act cannot be accepted as it would clearly violate the constitutional mandate and no person can be deprived of liberty, except in accordance with the procedure established by law.
24. In the case of Sachin Baliram Kakde Vs. State of Maharashtra (2016 ALL MR [Cri] 4049), the Bombay High Court in the context of presumption under
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 Section 29 of the POCSO Act after quoting the said provision has held as follows:
"17. Thus, when a person is prosecuted for commission of the offence specified in the said section, the court is required to presume that the said person has committed the said offence unless the contrary is proved.
18. The presumption, however, cannot be said to be irrefutable. In-fact, no presumption is irrebuttable in law, as this cannot be equated with conclusive proof. The provisions of Section 29 of the POCSO Act mandates the court to draw the presumption unless contrary is proved.
19. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law, they fly in twilight but vanish in the light of facts."
25. In the matter of Subrata Biswas & Anr. Vs. State (2019 SCC ONLINE CAL 1815) it has been held as under:
"21. I am not unconscious of the statutory presumption engrafted in Section 29 of the POCSO Act which reads as follow:-
"Presumption as to certain offences.-
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved".
22. The statutory presumption applies when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove the contrary. The word "is prosecuted" in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence. If that were so then the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours there of by leading reliable and admissible evidence. Such an interpretation not only leads to absurdity but renders the aforesaid provision constitutionally suspect. A proper interpretation of the said provision is that in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the foundation of its case by leading cogent and reliable evidence (which does not fall foul of patent absurdities or inherent probabilities)the onus shifts upon the accused to prove the contrary. Judging the evidence in the present case from that perspective, I am constrained to hold that the version of the victim (PW-1) and her mother (PW-2) with regard to twin incidents of 24th March, 2016 and 18th April, 2016 if taken as whole, do not inspire confidence and runs contrary to normal human conduct in the backdrop of the broad probabilities of the present case."
23. Hence, I am of the opinion that the evidence led by the prosecution to establish the primary facts suffer from inherent contradictions and patent improbabilities particularly the inexplicable conduct of the victim herself. One part of the prosecution case improbabilises the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, I am of the opinion that the factual matrix of the case does not call for invocation of the aforesaid statutory presumption
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 so as to convict the appellant on the charges levelled against him."
26. In the case of Sitaram Das vs. State Of West Bengal (2020 SCC ONLINE CAL 522) it has been held as under:
"29. Let us now address the applicability of Section 29 of the POCSO Act dealing with availability of presumption to be attracted to against the accused/appellant, in the given set of facts.
30. Most of the witnesses during trial either being declared hostile to prosecution, or not having rendered desired support to the prosecution version, shown in FIR, for the reasons ascribed in the judgment, learned Trial Judge thought it prudent to make the presumption applicable against the accused person, available under Section 29 of the POCSO Act. The principal thrust of this appeal was the imperfect application of Section 29 of the POCSO Act dealing with presumption in a case, where victim herself had given a go-by to the persecution story developing a separate story in her own version, contrary to the case set up in F.I.R, and subsequently in her 164 statement. The evidence adduced by the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 prosecution irresistibly indicates one and only important feature that the foundational evidence with respect to the offence charged has not been led in the instant case. It would be most improper, if the presumption available in Section 29 of the POCSO Act is straightway made applicable in a case even in absence of foundational evidence being led by prosecution. As has already discussed that besides medical evidence, there was no other evidence in making out a case, either of rape or aggravated sexual penetrative assault, and that medical evidence cannot be considered to be conclusive in sense in the given set of facts, so in the absence of proof of foundational evidence corresponding to the charges framed in this case against the accused person, there hardly left any circumstances for making any application of presumption available under Section 29 of the POCSO Act. The words appearing in Section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross- examination by
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 defence. When a different story is developed during trial by the victim prosecutrix, contrary to the story of prosecution, and that developed story received ratification from the near relatives of the victim prosecutrix, in the given facts situation, it stands to reasons that despite having been provided with sufficient opportunity to prove the case, prosecution failed to probalise the incident complained of in the F.I.R."
27. Keeping the aforesaid position of law in mind, evidence of prosecution witnesses in the present case, will have to be examined to find out whether prosecution has established the presumption arising under Section 29 of POCSO Act.
28. PW6 is the complainant and father of victim girl (PW8) and PW4 - Smt. Vidya is the step-mother of the victim girl (PW8). They are eyewitnesses to the incident of kidnap and saw the accused, who was kidnapping their daughter victim in TATA ACE vehicle. But neither PW4 nor PW6 followed accused and prevented him from kidnapping. No efforts have been made by them. Their
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 demonor at the time of kidnapping of victim by accused, creates doubt as duty bound father and mother kept quite while kidnapping their daughter, which is unnatural one.
29. Insofar as an offence under Section 376 of IPC is concerned, except the evidence of PW8 - victim, the evidence of PW4 and PW6 is in the nature of hearsay evidence. PW4 and PW6 have claimed that victim had told them about the alleged act perpetrated by the accused soon after her kidnap. But, their evidence is only hearsay evidence.
30. Prosecution has examined the victim girl as PW8. Therefore, it is only the evidence of PW8 which could be said to be direct evidence in support of the prosecution.
31. It is an undisputed fact that victim girl - PW8 was of tender age when the alleged incident took place and also when her evidence was recorded in the court. Being a child witness of tender age and sole direct witness in support of the prosecution case, evidence of PW8 has to
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 be evaluated with great care and caution. In this context, judgment of Hon'ble Apex Court in case of Radheshyam Vs. State of Rajasthan can be noted with benefit whereunder it has been held as follows:
"In Panchhi, (1998 SCC (cri) 1561) after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation"
32. Keeping the aforesaid authoritative principles laid down by Apex Court in mind pertaining to appreciation of evidence of witnesses, particularly a child witness, it will have to be first examined as to which category the testimony of PW8 (victim) would fall in the present case. If the testimony is found to be wholly reliable, there would be no necessity of corroboration and if it was found to be wholly unreliable, it would have to be discarded. But, if it is found neither wholly reliable nor wholly unreliable, it would definitely require corroboration.
33. In the instant case, PW8 - victim has suppressed the fact that she had written love letters (Exs.D2 & D4) to the accused prior to the incident and in the evidence she has not stated a single word about such love letters, on the contrary, father of the victim (PW6) has admitted in his evidence that, accused being his distant relative, was loving his daughter and in this regard,
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 victim also written several love letters to him. PW6 deposed to an extent that, one year prior to the alleged incident, victim went with accused and though accused and victim were traced by him, an ASI of Ranebennur Police Station, again they have escaped. This factual aspects have not been deposed by PW8 in a perspective manner, on the contrary, she has stated as if accused is stranger to her and he kidnapped her and have had sexual intercourse with her. The sole testimony of the victim is not corroborated with any independent witnesses, where accused have had sex with the victim. Admittedly, though corroboration should ordinarily be enquired in the case of a grown up woman, it is unnecessary in the case of child of tender age, but as a matter of prudence, a conviction should not ordinarily be based on the uncorroborated evidence of a child witness, as held in Rameshwar Vs. State of Rajasthan, reported in AIR 1952 SC 54.
34. On perusal of the medical evidence, PW17 - Dr.Bharati, who examined the victim has stated that, there
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 is evidence of intercourse and hymen was ruptured. PW17
- Dr. Bharati furnished her opinion subject to final opinion to be furnished by the FSL and on receipt of FSL report (Ex.P21), PW17 has opined that "based on clinical examination and FSL report, there is no evidence of recent sexual act." and accordingly she issued final opinion as per Ex.P26. Hence, the medical evidence in the present case is also of no assistance to the prosecution. On the other hand it is against the victim. This report clearly establishes that there was no sexual assault committed by accused on the victim as claimed by PWs.4, 6 and 8.
35. This lead us to draw the irresistible conclusion that offence under Section 376 IPC and Section 4 of POCSO Act is not proved by the prosecution or in other words, the burden cast on the accused stands rebutted.
36. Therefore, only evidence available in the present case is the self serving testimony of victim girl PW8. Applying the principles governing the manner in which evidence of a solitary child witness is to be analyzed
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 and accepted in a criminal trial as discussed by Hon'ble Apex Court in Radheshyam's case referred to supra to the case on hand, it becomes evident that corroboration was required from other evidence and material on record. It is clear that PW4 i.e., mother of PW8 (victim) was deposing on the information allegedly given by the victim, rendering her evidence as a hearsay evidence. There was no other prosecution witness who would support the statement of child witness PW8 (victim). The medical evidence on record did not show any corroboration of sexual assault on the victim. This creates a serious doubt about the veracity of the statement made by PW8 and it appears that she has made a statement on being told to do so or in other words she was tutored.
37. A reading of the evidence of these witnesses i.e., PWs. 4, 6 and 8 clearly establishes that it would not be safe to rely upon the sole testimony of child witness i.e., PW8 to convict the accused in the present case. There is no corroboration to the evidence of the said child
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 witness PW8 and evidence of other witnesses would not support the case of prosecution and they have turned hostile. As there is no medical evidence on record to support the theory of prosecution that victim was subjected to sexual assault by the accused, it becomes difficult to reverse the acquittal judgment passed by the trial Court.
38. The trial Court on considering the evidence of prosecution inclusive of defence theory rendered the judgment of acquittal. Whereas it is relevant to refer the judgment of the Hon'ble Apex Court rendered in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 wherein at paragraph 163, it is held as under:
"164. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused undoubtedly entitled to the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this court made the following observations (para 25 p.820).
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, they view which is favourable to the accused would be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
39. The Hon'ble Apex Court in the case of Umedbhai Jadavbhai Vs. State of Gujarat reported in 1978 SCC (Cri) 108 wherein at paragraph 10 held as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 if the same were arrived at after proper appreciation of the evidence."
40. The Hon'ble Apex Court in the case of Chandrappa and Others Vs. State of Karnataka reported in (2007) 4 SCC 415 wherein at paragraph 44 it is held as under:
"In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside."
(emphasis supplied)
41. In the backdrop of the above said contentions of the learned counsel for the parties and the evidence placed on record, we may refer to few decisions of Hon'ble Apex Court in regard to the jurisdiction and limitations of the Appellate Court while considering the appeal against an order of acquittal.
42. In Tota Singh Vs. State of Punjab reported in (1987) 2 SCC 529, the Hon'ble Apex Court in para 6 has held as under:
"6. ... The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
43. In State OF Rajasthan Vs. Raja Ram reported in [(2003) 8 SCC 180, the Hon'ble Apex Court has held that :
"7. ... The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. [Further, it is held that] in a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only where there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."
44. In Surajpal Singh Vs. State reported in 1951 SCC 1207, the Hon'ble Apex court has held as under:
"7. It is well established that in an appeal under Section 417 CrPC [old], the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 reversed only for very substantial and compelling reasons."
45. In view of the above proposition of law and decisions cited supra, in the present case, we have independently analyzed and scrutinized the evidence of the material witnesses and found that there is practically no evidence to show that accused kidnapped victim girl, took her to Bengaluru, Sakaleshapura and Davangere, where he had sex with the victim.
46. The learned trial Judge has appreciated the evidence of PWs. 1 to 21 in its right perspective and concluded that the evidence of these witnesses has not been established that the victim was kidnapped and sexually assaulted by the accused.
47. The Hon'ble Apex Court in the case of Harendra Narain Singh Vs. State Of Bihar reported in AIR 1991 SC 1842, has held that if there are two views possible from the evidence on record, one pointing to the guilt of accused and another to the innocence of accused,
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 then, the view, which is favourable to the accused, is to be accepted and benefit of doubt shall be given to the accused. The Learned Sessions Judge placing reliance on the aforesaid judgment of the Hon'ble Apex Court, has given benefit of doubt to the accused.
48. There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of the Justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 an innocent. This ratio is laid down in the case of Ramanand Yadav Vs. Prabhunat Jha and in the case of C.K. Dase Gowda And Others Vs. State of Karnataka, reported in (2003) 12 SCC 606.
49. Proper analysis of the evidence of prosecution witnesses and medical evidence brought on record by prosecution shows that foundational facts necessary in the present case to raise a presumption under Section 29 of POCSO Act, have not been laid or established beyond reasonable doubt by the prosecution. The statutory presumption under Section 29 of the POCSO Act must be understood and tested on the anvil of the golden thread which runs through web of the criminal jurisprudence system in this country that an accused is presumed to be innocent till the guilt is conclusively established beyond reasonable doubt. The defence has been able to demonstrate that prosecution story cannot be believed and therefore the presumption would not operate in favour of victim girl and even otherwise it had stood rebutted by the
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 medical evidence and oral evidence of PW8 and documentary evidence Ex.P20 - medical report of victim, FSL report (Ex.P21) and final medical report of victim (Ex.P26), issued by PW17 - doctor.
50. The fact that there is no independent witness to support the case of the prosecution, it requires that the standard of evidence tendered through an independent witness and official witness is to be an unimpeachable nature. But the very sequence of events is not convincingly portrayed. On the other hand, it is demonstrated that, the oral testimony of PWs. 4, 6 and 8 and other official witnesses falls short of the standard of proof required to connect the accused with the offence alleged. All these factors when view cumulatively, we are of the considered opinion that the evidence placed on record is not sufficient enough to prove the charges levelled against the accused beyond all reasonable doubt.
51. On careful scrutiny of the evidence available on record, we hold that the prosecution has failed to bring
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 home the guilt of the accused beyond reasonable doubt. Therefore, the trial Court has rightly acquitted accused for the aforesaid offences.
52. Considering all these aspects of the matter, the learned Sessions Judge has rightly extended the benefit of acquittal to respondent / accused. Hence, we do not find any grounds to interfere with the well reasoned judgment passed by the trial Court.
53. Hence we answer point No.1 in the negative, holding that the criminal appeal filed by the State is liable to be dismissed.
Re: Point No.2:
54. In the result, we pass the following:
ORDER The appeal is dismissed.
The judgment of acquittal passed by the Principal District and Sessions Judge at Haveri, in Special
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NC: 2023:KHC-D:6400-DB CRL.A No. 100237 of 2018 S.C.No.03/2016 dated 03.02.2018, acquitting accused for the offences punishable under Sections 363, 506, 366, 376 of IPC and Section 4 of the POCSO Act, 2012, is confirmed.
Sd/-
JUDGE Sd/-
JUDGE gab/ct-abn List No.: 1 Sl No.: 3