Karnataka High Court
The State Of Karnataka vs Yallappa S/O Parutappa Divatagi on 13 January, 2020
Bench: P.B.Bajanthri, Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MR. JUSTICE P.B.BAJANTHRI
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
CRIMINAL APPEAL NO.100089 OF 2015
BETWEEN:
THE STATE OF KARNATAKA,
REPRESENTED BY THE POLICE INSPECTOR,
KALGHATAGI POLICE STATION,
THROUGH ADDL. STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING, DHARWAD.
... APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
AND:
YALLAPPA
S/O PARUTAPPA DIVATAGI,
AGE 45 YEARS,
OCC: AGRICULTURE,
R/O BOGENAGARAKOPPA,
TQ: KALAGHATAGI,
DHARWAD DISTRICT.
... RESPONDENT
(BY SRI. MAHESH WODEYAR, ADVOCATE)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CRIMINAL PROCEDURE CODE,
1973, PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED
31.12.2014 PASSED BY THE II ADDL. DISTRICT AND
SESSIONS AND SPECIAL JUDGE, DHARWAD IN SPECIAL
S.C. No.16/2013, TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 31.12.2014 PASSED BY
THE II ADDL. DISTRICT AND SESSIONS AND SPECIAL
JUDGE, DHARWAD IN SPECIAL S.C. NO.16/2013 BY
ALLOWING THIS CRIMINAL APPEAL AND TO CONVICT AND
SENTENCE THE RESPONDENT/ ACCUSED FOR THE
OFFENCE CHARGED AGAINST HIM.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 02.12.2019 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY NATARAJ RANGASWAMY
J., DELIVERED THE FOLLOWING:
JUDGMENT
This Criminal Appeal is filed assailing the Judgment and Order of acquittal dated 31.12.2014 passed by the II Additional District Sessions and Special Judge in Spl. S.C. No.16/2013.
2. The mother of the prosecutrix lodged a complaint (Ex.P1) on 01.10.2013 at 11:30 hours with Kalaghatagi Police Station alleging that her elder daughter, who was of borderline intelligence and 3 studying in 8th standard, went for nature call at about 6:30 p.m. In the evening at about 7 p.m., CW.7 and his wife - CW.8 accompanied the prosecutrix to her house and left her in the custody of CW.1. The complainant - CW.1 disclosed that when she enquired with the prosecutrix, the latter informed her that the accused forcibly took her near Ittangi brick kiln and pinned her to the ground and undressed her and sexually assaulted her. The complainant also stated in her complaint that when the prosecutrix screamed out, CWs.7, 8 and 9 came to the spot and seeing them the accused fled from the scene. Later, the incident was narrated to CWs.10, 11 and to Imam Sab - CW.3 and one Khasim Sab, who apprehended the accused. A Crime in 163/2013 was registered by the Police for the offences punishable under Section 376 of the Indian Penal Code, 1860 (for short, 'the IPC') and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act, 2012'). 4 The prosecutrix was sent for medical examination at the Karnataka Institute of Medical Sciences, Hubli, which disclosed that there was no history of sexual intercourse. The hymen was intact and no external injury was found and there was no evidence of recent sexual intercourse. Subject to the final opinion, it was provisionally opined that the prosecutrix was not used to the act of sexual intercourse. In order to assess her mental deprivation, the prosecutrix was referred to Dharwad Institute of Mental Health and Neurosciences, Dharwad on 01.10.2013. When she was clinically examined, she presented bouts of irritable seizures and discoherent speech and the clinical Psychologist indicated that the mental age of the prosecutrix was 11 years with the corresponding intelligence quotient of 78 and possessed border line intelligence with behavioural problems. The statement of the prosecutrix was recorded under Section 164 of the Criminal Procedure Code, 1973 (for short, 'Cr.P.C.') by CW.19 on 5 07.10.2013. After obtaining the forensic report, a conclusive opinion was furnished indicating that there was no sexual intercourse or forcible sexual assault on the prosecutrix. It was also found from the report of the Forensic Science Laboratory that there were no seminal stains on the clothes worn by the prosecutrix and there were no skin tissue on the nail clippings of the accused and the prosecutrix.
3. The prosecution is stated to have recorded the statements of CWs.7, 8 and 9 as well as the other panch witnesses, the mother of the prosecutrix and other witnesses who allegedly apprehended the accused and also of the Investigating Officer and the medical experts who conducted the examination. The prosecution thereafter filed a charge sheet against the accused for the offences under Section 376 of the IPC read with Section 4 of the POCSO Act, 2012 whereupon Special S.C. No.16/2013 was registered. 6
4. The Trial Court charged the accused on 28.01.2014 for the offences under Section 376 of the IPC and Section 4 of the POCSO Act, 2012. The charge was later altered for the offences under Section 376 of the IPC read with Section 511 of the IPC and under Section 10 of the POCSO Act, 2012. The accused pleaded not guilty and requested to be tried.
5. Before the trial Court, PWs.1 to 15 were examined and Exs.P1 to P20 were marked and M.O. Nos.1 to 16 were marked. The accused submitted his written statement under Section 313 of the Cr.P.C and claimed that CW.3 was inimically ill-disposed towards him and therefore, to wreak vengeance, he had set up his sister (CW.1) and niece (CW.6) to file a false complaint.
6. The Trial Court after considering the oral and documentary evidence on record, passed the impugned judgment dated 31.12.2014 and acquitted 7 the accused of the offences alleged under Section 376 read with Section 511 of the IPC and Section 10 of the POCSO Act, 2012.
7. Aggrieved by the aforesaid Judgment and order of acquittal, the State has filed this appeal.
8. Heard the learned Additional Special Public Prosecutor and the learned counsel for the respondent. Perused the lower Court records and the Judgment and Order of the Trial Court.
9. The following questions would arise for our consideration:
1. Whether the prosecution has proved beyond doubt that the accused committed an offence punishable under Section 376 read with Section 511 of the IPC and Section 10 of the POCSO Act, 2012 ?
2. Whether the Judgment and Order of the Trial Court calls for interference ?8
10. It is evident from Ex.P1 that PWs.2, 3 and 4 (CWs.7, 8 and 9) were the eye-witnesses to the incident. However, PWs.2, 3 and 4 have turned hostile and the prosecution was unable to extract any evidence from the said witnesses. The evidence of PW.1, who is the mother of the prosecutrix, can at best be treated as hearsay. PW.5 is the maternal uncle of the prosecutrix who stated that he was taking care of the prosecutrix and his mother. Curiously, in his cross-examination, he claimed that he had seen the incident but yet did not rescue the girl. The evidence of PW.5 is hard to believe since PW.1 did not state about the fact that PW.5 was present at the scene of the crime and / or that PW.5 had accompanied PWs.2, 3 and 4 to the house of PW.1. Therefore, the evidence of PW.5 is not trustworthy and cannot be believed. PW.6 and PW.13 are the two persons who allegedly nabbed the accused. But, they are not eye witnesses to the crime. PW.13 turned hostile. Thus, there is no ocular evidence to prove the 9 commission of the alleged crime by the accused beyond reasonable doubt.
11. In the present case, the accused was charged for offences punishable under Section 376 read with Section 511 of the IPC and Section 10 of the POCSO Act, 2012. The medical evidence on record does not disclose the commission of an offence under Section 376 of IPC as the hymen of the prosecutrix was intact and there were no external injuries on her genitalia and there was no evidence of signs of recent sexual intercourse. The Forensic laboratory report discloses that there was no seminal stain on the pubic hair of the prosecutrix and there was no seminal stain on the clothes that were worn by her. The spot mahazar discloses that the brick kiln was located in the land bearing Sy. No.415 which belongs to Shivappa. It is found from Ex.P15 that the alleged offence took place in the said land. However, the medical examination of the 10 prosecutrix does not disclose any bruise injuries on her body. In the absence of any clinching evidence to prove the commission of the alleged offence beyond reasonable doubt, the accused cannot be held guilty of an offence under Section 511 of the IPC.
12. The accused is also charged for an offence punishable under Section 10 of the POCSO Act, 2012.
"Aggravated sexual assault" is defined under Section 9 of the POCSO Act, 2012. The clinical assessment of the prosecutrix at the hands of PW.11 disclosed that "persons such as the prosecutrix could have common sense but not high level learning process. Such persons can also express their feelings of their mind and acts undergone by them. Such persons may be able to express sometimes everything or sometime nothing or something. Sometime they may not be able to express everything. The examination of the prosecutrix revealed that the above girl had behavioural disorder. On the 11 basis of the clinical examination report, I say that the said girl had behavioural disorder". PW.11 identified the clinical assessment report of the prosecutrix marked as Ex.P11. The report at Ex.P11 discloses that the prosecutrix was suffering from epilepsy and was of borderline intelligence and her mental age was determined at 11 years though her actual physical age is found to be 16 years (age is shown as 14 years in Ex.P11). The statement of the prosecutrix was recorded under Section 164 of the Cr.P.C. However, when she was cross-examined, the Trial Court found that the prosecutrix was unable to speak clearly and that her disclosures were beyond comprehension. The Trial Court, therefore, held: "further evidence cannot be recorded at this stage unless the prosecution takes further steps to ascertain the ways and means by which the witness can be examined". Later on 22.04.2014, the statement of the prosecutrix under Section 164 of the Cr.P.C. was treated as her examination-in-chief and she 12 was permitted to be cross-examined in accordance with Section 33(2) of the POCSO Act, 2012. The prosecutrix has claimed that the accused undressed her and also undressed himself and lay upon her. The accused was aged 45 years and was physically able to copulate. It is, therefore, strange to believe that his seminal stains were not found on the body of the prosecutrix or on her pubic hair or on her clothes since it is in the evidence of PW.1 that PWs.2, 3 and 4 brought the prosecutrix from the scene of crime to her house directly. It is also evident from Ex.P9 certificate issued by the Karnataka Institute of Medical Sciences, Hubli, that the prosecutrix had not taken bath and had not changed her clothes after the incident and Medical opinion also do not reveal of any act of intercourse. The aforesaid evidence is therefore, just not sufficient and does not pass muster of proof of a fact and therefore, the prosecution was unable to prove the guilt of the accused beyond reasonable doubt.13
13. In this context, the judgments of Hon`ble Apex Court in the case of Sham Singh vs. The State of Haryana in Criminal Appeal No.544 of 2018 and in the case of State of Rajasthan vs. Babu Meena in Criminal Appeal No.570 of 2007 are profitable to be referred to. Likewise, it is profitable to refer to the Judgment of the Apex Court in the case of Muralidhar vs. State of Karnataka reported in (2014) 5 SCC 730, wherein it is held:
"12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State (AIR 1954 SC 1), Madan Mohan Singh v. State of U.P. (AIR 1954 SC 637), Atley v. State of U.P. (AIR 1955 SC
807), Aher Raja Khima v. State of Saurashtra (AIR 1956 SC 217), Balbir Singh v. State of Punjab (AIR 1957 SC 216), M.G.Agarwal v. State of Maharashtra (AIR 1963 SC 200), Noor Khan v.
State of Rajasthan (AIR 1964 SC 286), Khedu Mohton v. State of Bihar [(1970) 2 SCC 450], Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793], Lekha Yadav v. State of Bihar [(1973) 14 2 SCC 424], Khem Karan v. State of U.P. [(1974) 4 SCC 603], Bishan Singh v. State of Punjab [(1974) 3 SCC 288], Umedbhai Jadavbhai v. State of Gujarat [(1978) 1 SCC 228] , K.Gopal Reddy v. State of A.P. [(1979) 1 SCC 355], Tota Singh v. State of Punjab [(1987) 2 SCC 529], Ram Kumar v. State of Haryana (1995 Supp (1) SCC 248), Madan Lal v. State of J & K [(1997) 7 SCC 677], Sambasivan v. State of Kerala [(1998) 5 SCC 412], Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85], Harijana Thirupala v. Public Prosecutor [(2002) 6 SCC 470], C.Antony v. K.G.Raghavan Nair [(2003) 1 SCC 1], State of Karnataka v. K. Gopalakrishna [(2005) 9 SCC 291], State of Goa v. Sanjay Thakran [(2007) 3 SCC 755] and Chandrappa v. State of Karnataka [(2007) 4 SCC 415]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;15
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trail court. It is so because the trail court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal 16 is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
14. In view of the above, we are of the firm opinion that the Trial Court was thoroughly justified in acquitting the accused and therefore, we are clear in our mind that the Judgment and Order of acquittal passed by the Trial Court was based on proper appreciation of the evidence and thus, the same does not call for any interference. Hence, the following:
ORDER The Criminal Appeal fails and is dismissed.
Sd/-
JUDGE Sd/-
JUDGE sma