Karnataka High Court
The State Of Karnataka, vs Shivanaik S/O Daka Naik, on 15 September, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CRIMINAL APPEAL NO.100219/2014 C/W
CRIMINAL APPEAL NO.100275/2017
IN CRL. A. NO.100219/2014
BETWEEN:
THE STATE OF KARNATAKA
THROUGH CIRCLE POLICE INSPECTOR
RURAL POLICE STATION, BELLARY.
REPRESENTED BY ADDL. STATE PUBLIC
PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING,
BENGALURU.
...APPELLANT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
AND:
SHRI SHIVANAIK S/O DAKA NAIK,
AGED ABOUT 28 YEARS,
OCC:LORRY DRIVER,
R/O BELAGAL TANDA,
BELLARY TALUK,
NOW AT GOUTHAMNAGAR,
BELLARY.
...RESPONDENT
(BY SRI. VISHNU BHAT, ADV.)
2
THIS APPEAL IS FILED UNDER SECTION 377 OF
CR.P.C. SEEKING TO SET-ASIDE THE JUDGMENT AND
ORDER DATED 7.8.2014 AND 16.08.201 INSOFAR IT
RELATES TO IMPOSITION OF INADEQUATE SENTENCE TO
THE RESPONDENT/ACCUSED IN SC NO.114/2013 BY
ALLOWING THIS CRIMINAL APPEAL AND IMPOSE
MAXIMUM SENTENCE PROVIDED UNDER SECTION 376
OF IPC AND SECTION 4 OF PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT.
IN CRL. A. NO.100275/2017
BETWEEN:
SHIVA S/O DAKA NAIK
AGE: 32 YEARS,
OCC:NIL, R/O BELAGAL TANDA,
NOW AT GOUTHAM NAGAR,
BALLARI, TQ & DIST:BALLARI.
...APPELLANT
(BY SRI. VISHNU BHAT, ADV.)
AND:
1. THE STATE OF KARNATAKA
THROUGH CPI, RURAL POLICE STATION,
BALLARI,
R/BY ADDL. SPP, HIGH COURT,
DHARWAD BENCH.
2. SMT. PARVEEN W/O ABDUL GANI
AGE: 32 YEARS, OCC:TAILORING,
R/O BELAGAL TANDA,
NOW AT GOUTHAM NAGAR,
BALLARI, TQ & DIST:BALLARI.
...RESPONDENTS
(BY SRI. V.M. BANAKAR, ADDL. SPP FOR R1)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO CALL FOR RECORDS IN
3
SESSIONS CASE NO.114 OF 2013, ON THE FILE OF THE
PRL. SESSIONS JUDGE, BALLARI FOR THE OFFENCE
UNDER SECTION 376 OF IPC AND SECTIONS 3 AND 4 OF
THE PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012 AND THAT THE ORDER PASSED BY
THE PRL. SESSIONS JUDGE, BALLARI DATED 16.08.2014
SPECIFYING THE QUANTUM OF SENTENCE IN THE SAID
SESSIONS CASE NO.114 OF 2013 IS VEXATIOUS AND
WITHOUT APPRECIATION OF THE MATERIAL FACTS, THIS
COURT KINDLY BE PLEASED TO SET-ASIDE THE SAME.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 7.6.2018 AND COMING
ON FOR PRONOUNCEMENT THIS DAY, B.M. SHYAM
PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant is convicted in SC No.114/2013 on the file of the Court of the Principal Sessions Judge, Bellary (for short, 'the Sessions Court') by judgment dated 7.8.2014 for the offences punishable under Section 376 of Indian Penal Code (for short, 'the IPC') and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act') and is sentenced to undergo Rigorous Imprisonment for a term of three years for each of the offences punishable under Section 376 of the IPC and under Section 4 of the 4 POCSO Act and pay fine of Rs.10,000/- with default imprisonment of Simple Imprisonment for one month. The State has filed its appeal in Crl.A. No.100219/2014 under Section 377 of Cr.P.C for enhancement of the sentence and the accused has filed an appeal in Crl.A. No.100275/2017 under Section 374 of Cr.P.C impugning the said conviction and sentence.
2. The prosecution's case is that the appellant (referred to as 'the accused') and the victim lived in the same neighborhood, and in fact, the victim's mother ran a petty shop in the neighborhood from where the accused would buy bread/tea and such other item regularly on credit. On 2.6.2013, the accused purchased cigarettes and eatables on credit, and when he returned from his work at about 2.30 p.m. he asked the victim's mother, who was at the shop along with her neighbors (PW3 and PW4), to send the victim to his house and he would hand over a sum of Rs.30/- that 5 was due from him to her. The victim's mother accordingly sent the victim, who was playing with neighborhood friends, to collect the amount that was due to the accused's house.
3. After about half an hour later, the victim came out from the accused's house crying and with blood on her. The victim was bleeding from her lips, and on enquiry, the victim related to her mother, and the two neighbors (PW3 and PW4), that the accused closed the door when she entered his house and that the accused forcibly took her to the kitchen and forced himself on the victim hurting the victim on her lips and on her genitalia. The accused let go off the victim when she cried out loud and she came out of the accused's house after putting her clothes on. When the victim's mother and the said neighbors examined the victim, they saw swelling of the victim's genitalia and they rushed into 6 accused's house and found him lying naked on the floor.
4. The victim's father also reached the place at the same time and all of them enquired with the accused, but the accused bolted himself inside. On 3.6.2013 i.e. the day after the incident, the victim was taken to Gousiya Hospital, Bellary. The doctor who attended on the minor administered an injection but the parents of the victim did not initiate any action as they felt helpless. However, in the later statement to the police on 15.6.2013, the neighbors (PW3 and PW4) have stated that the victim was not taken to the Gousiya Hospital, Bellary because the victim was given some medication at home and she informed her parents that the swelling had subsided. Later, on the advice of the elders in the community, the incident was brought to the notice of the jurisdictional police on 7.6.2013 who registered the First Information in Crime No. 159/2013. 7
5. Thereafter, the investigation was conducted and charge sheet was filed on 28.08.2013 against the accused for the offences punishable under Sections 376 of IPC read with Sections 3 and 5 of the POCSO Act. The accused, when the charge was read over, pleaded not guilty and the prosecution, to bring about the culpability of the accused for the charges punishable under Section 376 of the IPC and Section 4 of the POCSO Act, examined PW1 and PW5 as witnesses to the spot mahazar, PW2 as witness to the seizure mahazar under which the accused's clothes were seized, neighbors as PW3 and PW4, victim as PW6, victim's mother as PW7, the Doctor, who examined the victim, as PW9 and the police personnel as PW8, PW10, PW 11 and PW12. The prosecution inter alia marked Spot Mahazar (Ex.P1 and P2), further statement of the neighbors (Exs.P4 and P5), Seizure Mahazar (Ex.P7) under which the victim's personal wear, pubic hair and finger nail were seized, victim's Age Certificate (Ex.P8), 8 accused's Medical Certificate(Ex.P9), victim's School Certificate (Ex.P11 and P12) Wound Certificate (Ex.P17 and P18) and FSL Report (Ex.P19).
6. The Sessions Court relying upon the evidence of the victim (PW6) and her mother (PW7), and the other material on record, concluded that the prosecution was able to establish its case against the accused. The Sessions Court did not accept that the delay of 5 days in filing the complaint was fatal to the prosecution's case and the Sessions Court also did not accept the accused's defense (based on the evidence of PW3 and PW4 and his statement recorded under Section 313 of Cr.P.C.) that the accused had been falsely implicated because he had recovered the money lent to the victim's mother with the intervention of the police.
7. The Sessions Court convicted the accused for the offences punishable under Section 376 of IPC and Section 3 of the POCSO Act and sentenced the accused 9 to two terms of three years of Rigorous Imprisonment for the offences both under Section 376 of IPC and Sections 3 and 4 of the POCSO Act on the condition that such terms shall run concurrently, and the Sessions Court also allowed set-off under Section 428 of Cr.P.C. There is no dispute that the accused has served the said terms of Rigorous Imprisonment.
8. The learned Additional State Public Prosecutor submitted that there is no dispute that the victim was aged about eight years at the time of the occurrence and the prosecution is able to establish its case that the accused was guilty of the penetrative sexual assault as contemplated under Section 3 of the POCSO Act and Section 376 of IPC. The learned Addl. State Public Prosecutor further canvassed that the accused was liable for punishment under Section 4 of the POCSO Act and also under Section 376 (2) (i) of IPC; while Section 4 of the POCSO Act prescribes that the term of 10 imprisonment shall not be less than seven years but may extend to imprisonment for life, Section 376 of IPC prescribes that a person guilty of an offence under Section 376(2)(i) of the IPC shall be punished with rigorous imprisonment for a minimum of ten years which may extend up to imprisonment for life i.e., imprisonment for remainder of that person's natural life, and in terms of the provisions of Section 42 of POCSO Act, the greater of the punishments under these provisions must be imposed.
9. The learned Addl. State Public Prosecutor argued that contrary to this mandate, the Sessions Court has convicted each of the accused for terms of three years each under Section 376 (2) (i) of IPC and Section 4 of the POCSO Act; and the accused, at the least, is liable for punishment which is greater in degree viz. a minimum period of ten years in terms of Section 376 (2) (i) of IPC.
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10. The learned counsel for the accused, on the contrary, contended that indisputable circumstances of the case establish that the entire evidence is fabricated to falsely implicate the accused in the case, and therefore, the accused is entitled for acquittal. The learned counsel emphasized that the Sessions Court has not considered that the reason assigned for the delay in filing the complaint is not established and this creates serious doubt about the prosecution's case. The learned Counsel further contended that the Sessions Court ought to have considered that the contradictions in evidence on the injury to the victim's person were material and that neither of the neighbors before whom the victim allegedly related the sexual assault on her have not supported the case of the prosecution. These and the material contradictions even in the evidence of the victim's mother, cumulatively established the accused's exculpatory statement under Section 313 of 12 Cr.P.C. Further, the learned counsel also argued that in the facts and circumstances of the case as borne out by the evidence, it would be unsafe to rely on the evidence of the victim, a child witness who even according to the prosecution was only aged about 8 years at the time of the alleged occurrence. The learned Counsel relied upon the decision of the Hon'ble Supreme Court in the case of Chhagan Dame Vs. State of Gujarat1, and the decision of the Bombay High Court in the case of Subhash Dhondiba Pandit Vs. State of Maharashtra2, to bolster his submissions in this regard. The Learned Counsel relied upon the observation in Para of 4 Chhagan Dame's case which reads as follows:
" In the case of child witness, the Court has to carefully consider whether the child was under the influence of tutoring. In the case, her answers to the questions in the cross examination clearly indicate that she was tutored and was made to give evidence in accordance with the earlier statement recorded under Section 162. Therefore, we 1 1995 Supreme Court Cases (Cri) 182 2 Reported in LAWS(BOM) 1996 7 21 13 find it highly unsafe to place reliance upon her evidence."
11. This Court, in view of the grounds urged in these appeals, is called upon to decide whether the prosecution has established beyond all reasonable doubt that the accused is guilty of the offences punishable under Section 376 (2) (i) of IPC and Sections 3 and 4 of the POCSO Act, and if the accused is guilty of the offences punishable under Section 376 (2) (i) of IPC and Sections 3 and 4 of the POCSO Act, should the accused be sentenced to greater of the punishment prescribed under Section 376 (2) (i) of IPC as contemplated under Section 42 of POCSO Act.
12. The accused in his statement recorded under Section 313 of Cr.P.C., while denying the prosecution's evidence as against him, has tried to exculpate himself stating that he had financial transaction with the prosecutrix's mother and he was able to recover the 14 monies lent by him to her with the intervention of the police, and therefore, the prosecutrix's mother was fighting with him and the present complaint is lodged against him because he was able to recover the amount due through police. The neighbor, Ms. Jyothi (PW4), who according to the prosecution heard the prosecutrix when she for the first time related the sexual assault by the accused after coming out of his house, has turned hostile but has spoken about loan transaction between the accused and the prosecutrix's mother both in the chief-examination as well as in the cross-examination. This testimony by this witness as regards the loan transaction between the accused and the prosecutrix's mother has not been tested in cross-examination on behalf of the prosecution.
13. The panch witnesses have turned hostile and so also the neighbors (PW3 and 4) who, according to the prosecution, were present when the victim related the 15 sexual assault on her by the accused for the first time immediately after stepping out of the accused's house. Insofar as the recovery of the accused's clothes and the victim's dress and undergarment under Ex. P 2 and P 7, respectively, PW2 (as regards Ex. P2) and Doctor (PW9) are examined. PW 2 has turned hostile entirely and the Doctor has stated that she collected the victim's dress and undergarment and sent for forensic examination. The prosecution has not examined any other witness. The Forensic Report, which is marked as Ex. P 9 by consent, is categorical in that no seminal stains were found on the relevant material objects and the liquid blood sample sent had disintegrated and therefore not available for examination. Thus, the prosecution's case entirely rests on the testimonies of the victim (PW6) and victim's mother (PW7) and the medical evidence.
14. The victim was aged about 8 ½ years as of the date of the alleged assault, and as of the date of her 16 examination-in-chief before the Sessions Court, she was aged about 9 years. The learned Counsel for the accused has strenuously argued that there are glaring infirmities in the prosecution's case, and therefore, it would be very unsafe to rely upon the testimonies of the victim or her mother, and if their testimonies are unacceptable, there is no evidence to establish the guilt of the accused and the accused ought to be acquitted entirely.
15. It is settled by a catena of decisions that in cases of prosecution of accused for sexual assault, the sole testimony of the prosecutrix would suffice as her testimony stands on a higher pedestal and the Courts should not seek corroboration, except corroboration by medical evidence and circumstantial evidence like scientific evidence, when the broad probabilities of the case does not render the prosecutrix's testimony incredulous. The Hon'ble Supreme Court in the 17 recent decision in Mukesh vs. State (NCT of Delhi)3 per R. Banumathi., J, has held:
'In a case of rape, like other criminal cases, onus is always on the prosecution to prove affirmatively each ingredients of the offence. The prosecution must discharge this burden of proof to bring home the guilt of the accused and this onus never shifts. In Narender Kumar v. State (NCT of Delhi) (2012) 7 SCC 171, it was held as under:-
"29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defense to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defense. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt."
At the same time while dealing with cases of rape, the Court must act with utmost sensitivity and appreciate the evidence of prosecutrix in view of settled legal principles. Courts while trying an 3 (2017) 1 SCC Page 1 18 accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. It is now well-settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination etc., if the same is found natural and trustworthy".
16. Thus, in the prosecution of an accused for the offence of sexual assault, the Courts must consider the testimony of the prosecutrix with utmost sensitivity being conscious of the social milieu ignoring minor infirmities and that Courts can base conviction based on the prosecutrix's testimony if corroborated by medical evidence and circumstantial evidence such as the report of chemical examination and other scientific examination if such testimony is found natural and trustworthy.
17. As regards the testimony of a child witness, the Hon'ble Supreme has held that Courts must subject the 19 testimony of a child witness to a close scrutiny and rely upon the testimony if the Court were to find such testimony reliable, truthful and corroborated by other evidence on record. The Hon'ble Supreme Court in Radhey Shyam Vs State of Rajasthan4 has held as follows referring to its earlier decision in Panchhi vs. State of UP5:
"12. ......... 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 is more a rule of wisdom than of law. It is not necessary to refer to other judgments cited by the learned Counsel because they reiterate the same principle. The conclusion which can be deducted 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 evidence. If found reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation."4
(2014) 5 SCC Page 389 5 (1998) 7 SCC Page 177 20
18. If in the prosecution of an accused for offence/s of sexual assault, the accused can be convicted on the sole testimony of the prosecutrix which is natural and trustworthy and corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination and scientific examination, even in cases of prosecution for sexual assault on a child, the sole testimony of such child/ victim should be sufficient if the same is found natural and trustworthy in the broader probabilities of the case and corroborated by medical evidence and circumstantial evidence such as scientific examination. The Courts, in all cases of prosecution of an accused for sexual assault (whether on a child or not), will have to be sensitive to, and conscious of, the social milieu, and in cases of prosecution of accused for sexual assault on children, the Courts' scrutiny of the evidence will also have to coalesce this indubitable obligation to be sensitive in examining any infirmity in a victim's 21 testimony with the need to examine child's testimony with a measure of caution and seek corroboration. This would be necessary to eliminate tutored or influenced testimony because a child witness could be amenable to easy tutoring and influence. The rule of seeking corroboration of a child witness's testimony, as held by the Hon'ble Supreme Court, is more a rule of wisdom than law, and this need to coalesce should also be more a rule of wisdom than law.
19. The Sessions Court, while recording the evidence of the victim in camera, has asked the victim general questions and opined that though the victim answered the questions correctly but the victim could not understand the significance of stating the truth on oath and therefore the victim in not administered the oath before recording her testimony in camera. Therefore, the victim's testimony is considered with greater caution.
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20. The victim is categorical that the accused hurt her on the lips and she suffered bleeding injury on her lips, and she is also categorical that she suffered bleeding injury on her genitalia. The victim's mother has also stated that the accused caused bleeding injury on the victim's lips and genitalia, and in fact, the victim's mother has stated that the victim suffered tear injury on her genitalia. Their testimony is not that the accused penetrated but it is that the accused pressed himself and caused the bleeding/ tear injury, and if this be so, the medical evidence would be crucial.
21. The prosecution's case as presented through Ex. P3, P5 and Ex. P 13 (the neighbor's statements and the complaint by the victim's mother) is that the victim was taken to Ghousia Hospital at Bellary on the day after the incident because the victim complained of pain in the genitalia and the doctor, who examined the victim, administered an injection. However, there is a 23 retraction of sorts as in the subsequent statement recorded vide Ex. P5 and Ex. P 6. The neighbors have stated on 15/6/2013 that their earlier statement that the victim was taken to the Ghousia Hospital on 3/6/2013 is incorrect and the victim was not taken to the Hospital as victim informed her mother that the swelling in the genitalia had subsided after she was given medicine at home. The neighbors have not supported either the Ex. P3, Ex. P5 and Ex. P 13 (dated 7/6/2013) or Ex. P5 and Ex. P 6 dated 15/6/2013. Further, neither the victim nor her mother have testified about the victim being taken to Ghousia Hospital or being treated at home. In fact, they have not spoken about the treatment given to child between 2/6/2013 (the date of the alleged sexual assault) and 7/6/2013 when the victim was examined by the doctor (PW9). It would be rather difficult to believe that the victim would not have been taken for medical treatment had she suffered injuries as spoken by them.
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22. The Doctor - PW9 has testified categorically that she examined the victim on 7/6/2013 and she did not find any external or internal injury on the genitalia or on any other part of the victim's person. The Doctor has also testified that there was no evidence of sexual intercourse with the victim. Further, this witness is the signatory to two wound certificates that are marked as Ex.P17 (dated 18.6.2013) and P18 (13.8.2013), and she admits the issuance of both the wound certificates. In the first of the wound certificates, she has opined that there was no clinical evidence of sexual intercourse and she has specifically noted that there were no injuries either on breast or other body surface of the witness. In the latter wound certificate, she has tried to clarify that she did not see any swelling in the genitalia of the victim, but because she did not examine the victim immediately after the assault i.e. on 2.6.2013, it was not possible for her to comment on as to whether there 25 was any swelling or the swelling had subsided. The first wound certificate dated 18.6.2013 does not support the prosecution's case and the second would certificate dated 13.8.2013 seems very contrived and does not lend any credence to the prosecution's case against the accused
23. Further, both the victim and her mother have not only spoken about the injuries to the victim as discussed above but have also spoken about the accused undressing the victim before he sexually assaulted the victim and the victim putting on her dress back before she exited from the accused's house. If the victim had indeed suffered bleeding injuries and she had put on her dress/undergarment back after sustaining such injury, it is very unlikely that her dress/undergarment would not be blood stained. However, neither the seizure mahazar (Ex. P 7) nor the FSL Report mention about the victim's dress/undergarment being blood stained. 26
24. Further, the Doctor (PW9) has testified that she collected the Victim's dress on 7.6.2013 viz., the day on which she examined the victim, and to similar effect is the Panchanama dated 8/6/2013 (Ex. P 7). But, the victim's mother has testified that she handed over the victim's dress and undergarment to the police when they visited their residence after registering the complaint. This contradictory evidence, when coupled with the doubtful testimony as regards the injuries on the victim and the undisputed fact that dress/ undergarment are not blood stained, undermines the victim and her mother's testimonies, and consequentially the prosecution's case. The evidence as regards the recovery and the victim's dress/ undergarment do not appear either natural or trustworthy.
25. The Prosecution's case is that the accused sexually assaulted the victim in the afternoon on 27 2/6/2013, but the complaint with the police is lodged by the victim's mother on 7.6.2013 at about 4:00 p.m. In the complaint (Ex. P 13), she has stated that she took the victim to the Doctors at Ghousia Hospital Bellary on the day after the day of sexual assault and that she, accompanied by her husband, was lodging the complaint as advised by the elders of the community. In the evidence, however, she has deposed that her husband and she called on the police on the date of occurrence and informed the police of the assault. The Police secured the accused on the same day and detained him, and when she learnt that the accused was let off by the police, her husband and she again visited the police station. The police informed her that they had not lodged any first information because they were concerned about the welfare of the victim, and only because her husband and she insisted, the police registered the complaint (EX. P 13) as FIR in Crime No. 15/2013 (Ex. P14). This is not mentioned in the 28 complaint (Ex. P 13). The prosecution has not offered any explanation as to why this is not mentioned in Ex. P
-13 or for non - examination of the people from the community who advised her to approach the police after five days or for the non-examination of the victim's father, who according the prosecution, was present right from the time immediately after the incident. This infirmity also affects the broader probabilities of the prosecution's case against the accused
26. The victim's mother has deposed that the accused was locked up in his house when the victim's parents, and neighbors, found him lying nude on the floor of the house; when the victim's father and another had gone to inform the police, the accused broke open a wall of his house and tried to assault the victim's mother with an axe. The victim's mother has spoken about this for the first time in her evidence. Though in the spot mahazar (conducted on 8/6/2013) there is a 29 mention of a collapsed wall constructed to close an earlier door, there is no recovery of the axe allegedly used by the accused, and in fact, in the spot mahazar it is recorded that no traces of occurrence was found. If indeed the accused had broken down the wall and come out as alleged, and which would be immediately after the assault, it could not have been recorded that no clue of occurrence was found. The question will be: is the victim's mother trying to exaggerate and concoct a case against the accused.
27. The testimony of the victim, or the testimony of her mother, are not in consonance with each other's testimony and their testimonies are not corroborated by the medical or other circumstantial evidence. Further, their testimony do not appear natural or trustworthy in view of the material infirmities as discussed supra. Therefore, it cannot be concluded that the prosecution has been able to establish all the ingredients or 30 segments of its case to bring the culpability. In addition, the improvements in the testimony of the victim's mother, the categorical medical evidence about the lack of any injury to the victim, a very fragile and unsubstantiated explanation for the delay in lodging the complaint and the victim's testimony in complete tandem with her statement recorded under Section 162 Cr.P.C indicates that the victim's testimony could be alacritous testimony, and therefore, tutored and influenced.
28. In view of the foregoing reasons, it is concluded that the prosecution has failed to establish that the accused is guilty of offence punishable under the provisions of Section 376 of the Indian Penal Code or Section 4 of the Protection of Children from Sexual Offences Act, 2012, and therefore the question of enhancement of punishment as sought for by the State 31 in its appeal under Section 377 of Cr.P.C would not arise.
Accordingly, the appeal by the accused/appellant in Crl. Appeal No. 100275/2017 is allowed, the judgment dated 7.8.2014 in SC No.114/2013 on the file of the Court of the Principal Sessions Judge, Bellary is set-aside and the accused/appellant is acquitted of the charges for offences punishable Section 376 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012), and consequentially, the appeal by the State in appeal in Crl. Appeal No. 100219/2014 seeking enhancement in the sentence is dismissed.
No costs.
Sd/-
JUDGE Sd/-
JUDGE JTR*