Karnataka High Court
The State Of Karnataka vs Somashekhar @ Pintya on 20 April, 2022
Author: K. Somashekar
Bench: K. Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
.
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CRIMINAL APPEAL No.200192/2021
Between:
The State of Karnataka
Through Station House Officer
Gandhi Chowk Police Station
Vijayapura
Represented by
Addl. State Public Prosecutor
... Appellant
(By Sri Prakash Yeli, Addl. SPP)
And:
Shri Somashekhar @ Pintya
S/o Shri Basanna Dolli
Aged about 23 years
Occ: Coolie, R/o Horthi Village
Tq. Indi, Dist. Vijayapura-586117
... Respondent
(By Sri R.S. Lagali, Advocate)
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This Criminal Appeal is filed under Section 378(1) &
(3) of Cr.P.C., praying to (a) grant leave to appeal against
the judgment and order dated 17.02.2021 passed by the
Addl. District & Sessions Judge, FTSC-I (POCSO) Vijayapur
at Vijayapur in Special Case (POCSO) No.30/2016, thereby
acquitting the accused/respondent for the offences
punishable under Sections 376(2) (n), 504 & 506 of IPC
and under Sections 5(1), 6 of Protection of Children from
Sexual Offences Act and under Sections 3(1) (xi), 3(2) (v)
of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocity) Act; (b) Set aside the judgment and order dated
17.02.2021 passed by the Addl. District & Sessions Judge,
FTSC-I (POCSO) Vijayapur at Vijayapur in Special Case
(POCSO) No.30/2016, thereby acquitting the
accused/respondent for the offences punishable under
Sections 376(2) (n), 504 & 506 of IPC and under Sections
5(1), 6 of Protection of Children from Sexual Offences Act
and under Sections 3(1) (xi), 3(2) (v) of Scheduled Caste
and Scheduled Tribe (Prevention of Atrocity) Act; and (c)
Convict and sentence the respondent/accused for the
offences punishable under Sections 376(2) (n), 504 & 506
of IPC and under Sections 5(1), 6 of Protection of Children
from Sexual Offences Act and under Sections 3(1) (xi),
3(2) (v) of Scheduled Caste and Scheduled Tribe
(Prevention of Atrocity) Act.
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This appeal coming on for admission this day,
K. Somashekar J., delivered the following:
JUDGMENT
This appeal is directed against the judgment of acquittal rendered by the trial Court in Special Case (POCSO) No.30/2016 dated 17.02.2021, whereby the accused is acquitted of the offences punishable under Sections 365, 344, 376 (2) (n), 504, 506 of Indian Penal Code 1860, besides Sections 5 and 6 of the POCSO Act, 2012 and so also of the offences punishable under Sections 3(1) (xi) and 3(2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In this appeal, the State is seeking reversal of the acquittal judgment and conviction of the accused for the aforesaid offences.
2. The learned counsel for the respondent accused also submitted that both the victim and the accused are married and are blessed with two children, 4 one child is aged four years and the second child is aged one year.
3. In view of the submission made by the learned counsel for the respondent/accused the matter is taken up for final disposal with the consent of the learned Additional State Public Prosecutor and the learned counsel for the respondent.
4. Heard the learned Additional State Public Prosecutor for the State and learned counsel Sri R.S. Lagali for the respondent/accused. Perused the judgment rendered by the trial Court in Special Case (POCSO) No.30/2016.
5. Factual matrix of the prosecution case is as under:
The complaint at Ex.P-1 divulged that on 18.05.2016 at around 10.30 a.m. the accused allegedly followed the victim and her sister PW-1 in Dhobale Galli of Vijayapur city on a silver colour motorcycle, dragged the victim 5 forcibly, and threatened both the sisters at knifepoint and made the victim sit on his motorcycle and thereafter fled away from the place.
Subsequently, the sister of the victim PW-1 made phone calls to her maternal uncle and other relatives who arrived at Vijayapura at 12.30 p.m. and searched for the victim. However, they could not trace her. Further, they tried to search for the victim for the next 2 days, and thereafter a complaint came to be lodged with the concerned police. FIR at Ex P26 is also recorded for the offences reflected therein.
6. Subsequently, the Investigating Officer has taken up the case for investigation and the investigation is carried out and the charge sheet against the accused is filed before the Special Case (POCSO) No.30/2016. The trial court heard the learned Public Prosecutor and so also the defence counsel and on prima facie materials found against the accused relating to the offences lugged against him 6 framing of charges and accused did not pleaded guilty but claimed to be tried.
7. After framing of charges against the accused, the prosecution let in evidence by subjecting to examination PW-1 to PW-22 and got marked Exs.P-1 to P-32 and got marked contradictory statements of PW-3 at Exs.D1 to D3 and so also got marked M.O.1 to M.O.6. After the closure of the evidence of the prosecution, the accused was examined under Section 313 of Cr.P.C. for enabling him to answer to the evidence which appeared against him. The accused denied the incriminating circumstances against him. Subsequently, the accused was called upon to enter any defence evidence. But he did not choose to adduce any evidence as contemplated under Section 233 of Cr.P.C.
8. After the closure of the entire evidence of the prosecution, the trial Court has heard the arguments advanced by the learned Public Prosecutor and so also the defence counsel for the accused. The trial court considered the evidence in respect of the averments at Ex.P-1 7 complaint as made by PW-1 who is the sister of the victim and also the evidence of PW-3 the victim girl. The evidence of PW-9 Dr Meenakshi, the evidence of PW-10 Dr Ashok Rajput, evidence of PW-22 Dr Ram L. Arasiddi, and the evidence of Investigating Officers were considered. Also by perusing the statements made by the victim who was examined as PW-3, wherein her statement under Section 164 of Cr.P.C. marked as Exs.D1 to D3, and so also on scrutiny of the evidence of PW-4 in respect of mahazar at Ex.P-10, seizure panchanama at Ex.P-12 in the presence of PW-6, the trial Court has held that the prosecution did not facilitate worthwhile evidence to secure the conviction of the accused of the offences levelled against him and rendered the acquittal judgment against the accused. It is this judgment that is challenged under this appeal by urging various grounds.
9. It is contended by the learned Additional State Public Prosecutor for appellant/State by referring to the evidence of PW-1 who is none other than the sister of the 8 victim, that on a fateful day i.e., on 18.05.2016 at around 10.30 a.m. the accused followed the victim and also her sister PW-1 on his motorcycle and dragged the victim forcibly by threatening both of them at knifepoint and made the victim sit on his motorcycle and fled away on his motorcycle. Subsequently, PW-1 has given the information about the abduction of the victim and secured her relatives, and made the search for the victim. The evidence of PW-1 is corroborated with the evidence of PW-3 whereby she has stated in a statement under Section 164 of Cr.P.C. However the trial court did not consider their evidence and so also the role of the accused relating to the abduction of PW-3 the victim girl. Though the victim has not suffered any injuries on her body, it cannot be the ground for rendering an acquittal judgment of the offences levelled against the accused. PW-3 being the victim had given her a statement voluntarily, that it was against her will, she was dragged by the accused in the presence of her sister PW-1. The trial court did not give any credibility to the evidence of these material witnesses. On scrutiny of the evidence, it is found 9 that the prosecution has successfully proved the guilt against the accused beyond all reasonable doubt.
10. The second limb of argument advanced by the learned Addl. SPP is that the trial Court has not properly appreciated the evidence of prosecution relating to the abduction of PW-3 from the lawful custody of her parents and also in the presence of her sister PW-1. On this premise, the learned Addl. SPP seeks to allow this appeal and to set aside the acquittal judgment rendered by the trial Court, if not it amounts to a miscarriage of justice.
11. Lastly, the learned Addl. SPP for State by referring to the evidence of PW-1, PW-3, PW-8, PW-11, PW-13, PW-14, and PW-16 submits that the evidence of these witnesses requires to be re-appreciated in a proper perspective, whereby they have adduced the evidence that they have traced the accused and so also PW-3 who is the victim who was found together at Bengaluru in the house of PW-13. However, the trial Court has ignored the evidence of those witnesses and did not consider the 10 evidence of the aforesaid witnesses. The evidence of PW- 10 the Headmaster of the school is also relevant and based on the records in the original register, relating to the date of birth of PW-3, is also ignored though it is proved that she was born on 30.06.1998, which discloses that as on the date of abduction of PW-3 by the accused, PW-3 was a minor. The evidence is corroborated by the evidence of the PW-9 doctor who has examined the victim girl PW-3 and as per their evidence, the age of the victim PW-3 is probably 17 to 18 years. However, the trial court did not appreciate the evidence and erroneously appreciated the evidence and acquitted the accused of the offences lugged against him.
12. The evidence of PW-1, PW-3, PW-8, PW-11, PW-13, PW-14, and PW-16 is corroborated in respect of the abduction of the victim PW-3 and also extending life threat to her sister PW-1. These are all the important pieces of evidence on the part of the prosecution which has not been appreciated by the trial Court in a proper 11 perspective. There might be some minor discrepancies in narrating the incident. But it shall not be the ground to render acquittal judgment. Minor discrepancies, contradictions, omissions, and even improvements are bound to occur when the witnesses are rustic, and when they lead evidence and face cross-examination after a long time after the incident. Viewed from any angle, the impugned judgment of acquittal rendered by the trial Court is without any sound reason or otherwise any justifiable reason to render acquittal judgment. On this premise, the learned Addl. SPP for State seeks to consider the grounds urged in this appeal and reverse the acquittal judgment rendered by the trial court and convict the accused for the offences levelled against him.
13. On the other hand, learned counsel for the respondent/accused Sri R.S. Lagali has taken us through the evidence of PW-3 and her statement recorded as contemplated under Section 164 of Cr.P.C. and the contradictory portions of her statement marked at Exs.D1 12 to D3. The victim has stated that she and the accused had reached Lingasugur. But at Ex.D3 that does not tally as the said place is about 160 k.m. away from the place where the victim is allegedly abducted. Travelling on a motorcycle for 160 k.m. against the wish of the victim is something unbelievable. In this regard, the learned counsel submits that though the statement of one Sri Ashwin Kumar was recorded by the police, his oral evidence is intentionally not led as the victim and accused had confessed before him about the marriage of the victim and accused. Ex.P-16 relates to the date of birth of the victim whereby PW-10 states that unless the candidate is of 16 years of age they cannot appear for the SSLC exam and by the time one completes pre-university, the age would be 18 years. The victim contradicts that she was studying in second pre-university while deposing before Court. Thus, Ex.P-16 does not find corroboration with the evidence of PW-10.
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14. The victim PW-3 stayed with the accused of 21 days and the accused had confined the victim inside the house and was fetching the water and food from outside is the case of the prosecution. Even though the evidence is adduced on the part of the prosecution, the evidence of PW-3 relating to the narration in her statement and the contradictory parts marked at Exs.D1 and D3 and her evidence which is contrary to the evidence of PW- 1/complainant creates doubt regarding the theory set up by the prosecution.
15. Ex.P14 is the report issued by the doctor who examined the victim girl. But the evidence of PW-9 runs contrary to the evidence of the PW-3 victim girl and is further contradictory to the evidence of PW-4 in respect of the article-10 which is the undergarment of the accused. In his evidence, PW-4 has given goby to the versions in the statement. The domain is vested with the prosecution to prove the guilt of the accused beyond all reasonable doubt.
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16. PW-6 and PW-7 support the mahazar at Ex.P-
12. The investigation does not reveal any sexual assault on the victim PW-3. The seizure has no consideration value. The whole theory of the prosecution gets defeated by such mahazar. Therefore, the seizure of a motorcycle under Ex.P-13 is unacceptable and no value in law can be attached.
17. PW-10 issued the radiology report. The radiology report coupled with the evidence of the School records at Ex.P-15 as deposed by PW-10, gives an insight that the age of the victim could even be 18 years or between 17 to 18 years. Therefore, regarding the age, the evidence is not consistent. Whether she was between 17 to 18 or attained the age of 18 years on the date of the alleged incident is the question. PW-10 is the School Authority who has specifically deposed that a candidate who completes Pre-University Course, in general, completes their course at age of 18 years. However, in the absence of a date of birth certificate, merely relying 15 upon the school certificate, it is not safe to say that victim was below 18 years. The theory put forth by the prosecution is found to be doubtful. These are all the evidence considered by the trial Court. Even the evidence of PW-1/complainant is not corroborated with the evidence of PW-3 victim.
18. The evidence of the PW-15 doctor does not play a vital role as he can certify that the accused had been medically normal to indulge in a sexual act. This evidence as a whole or even in isolation does not assist the case of the prosecution in driving the guilt against the accused.
19. PW-16 is the Investigating Officer and he investigated the case as per the directions issued by the Deputy Superintendent of Police to trace the victim and the accused and accordingly has taken into custody the victim and the accused and produced them before the Dy.S.P. on 10.06.2016 in the morning hours. 16
20. PW-17 was subjected to examination who has carried the Articles 1 to 10 from the two doctors namely PW-9 and PW-15 and handed them to FSL.
21. PW-20 is also the Investigating Officer and he has investigated the case as per the direction issued by his higher officer. PW-20 goes to Bangalore on 02.09.2016 along with PW-10 visits the rented house of the accused and draws a mahazar under Ex.P-11 and he has taken photographs. On analyzing both oral and documentary evidence facilitated by the prosecution, the theory as put forth by the prosecution is found to be doubtful, and accordingly, the trial court rendered an acquittal judgment On these grounds the learned counsel for the accused seeks dismissal of this appeal.
22. PW-1 who is the complainant and in her presence Ex.P2 mahazar has been conducted by PW-19. PW-3 being the victim has been subjected to examination and has given evidence and her statement is recorded as contemplated under Section 164 of Cr.P.C. PW-4 is a 17 panch witness to the mahazar at Ex.P-10 held by PW-22 in their presence. Similarly, PW-5 is the panch witness at Ex.P-11 who subscribed the signature by PW-20. PW-6 is a seizure panch witness of Ex.P-12. PW-10 was subjected to examination and got marked caste and birth certificate at Ex.P-15 and also caste certificate at Ex.P-17. PW-21 is the Investigating Officer who got marked his signature at Ex.P-17A. It is alleged that PW-1 telephonically gave information to her relatives alleging abduction of the victim by the accused. But victim PW-3 and the accused are traced by the investigating agency at Bengaluru and both the victim, and the accused have been brought back after 21 days. A contradictory portion of her statements is marked at Exs.D1 to D3.
23. PW.13-Smt.Sumadevi was a landlady of the house where the accused and the victim stayed on a rental basis and this PW.13 is cited as CW.18 in the charge sheet. According to her both the victim and the accused had come to her house seeking space for rent. According to her, both appeared normal, and this witness did not 18 suspect anything. This witness did not suspect the bonafide of these two persons.
24. PW.1 who is a sister of the victim has narrated in her complaint at Ex.P.1 that the accused was forcibly dragged the victim and forced her to sit on his motorcycle and fled away from the spot.
25. The victim and the accused have stayed in a rented house in Bengaluru and the victim is also subjected to examination. There is no evidence to suggest hold that the victim protested. PW-10 being a Headmaster subjected to examination and given evidence relating to the date of birth of the victim and she was aged between 17-and 18 years. But the prosecution has taken a contention that she was a minor on the date of an abduction made by the accused person. In this regard, it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of Lalit Kumar Sharma v. Superintendent and Remembrance of Legal Affairs, Government of West Bengal - AIR 1989 Supreme Court 2134 whereby it is held that the 19 power of an appellate court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so. If a finding reached by the trial Judge cannot be said to be an unreasonable finding, then the appellate Court should not disturb that finding even if it is possible to reach a different conclusion based on the material on record.
26. The Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in a judgment, but by cross-checking the reasoning with the evidence on record and to satisfy itself that the reasoning and findings recorded by the trial court are consistent with the material on record. This issue was extensively addressed by the Hon'ble Apex Court in a judgment of Mahendra Singh v. the State of Rajasthan
-(1997) 3 Crime 102.
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27. Section 3 of the Indian Evidence Act, 1872 deals with proof. In the instant case, PW.3 is a victim and allegedly she was abducted by the accused forcibly and dragged from the custody of her sister-PW.1 who lodged the complaint. But, the victim and the accused were staying in a rented house in Bengaluru for 21 days and thereafter the investigating agency traced PW.3 being the victim and the accused were brought back from Bengaluru. During those 21 days, the victim did not make any attempt to protest or she did not attempt to escape.
28. It is a well-settled principle of law that the reliance can be placed on the statement of a witness if the court concludes that the statement is found to be the true and also correct version of the case of the prosecution witness. It is a settled position of law that it is the quality of evidence and not the quantity of evidence that matters.
29. On perusal of the evidence of the prosecution witnesses that too the evidence of PW.1 who is an author of the complaint at Ex.P.1 and PW.3 the victim, the trial 21 court rendered an acquittal judgment by assigning the reasons. Therefore, in this appeal, it is relevant to refer to the judgment in the case of Anwar Ali and another v. State of Himachal Pradesh - 2020 SAR (Crime) 112.
30. Section 378 of Cr.P.C., and its scope in relation to an appeal against acquittal judgment is considered by the Hon'ble Apex Court. Judgment of acquittal should not be lightly interfered with even if the courts believe that there is some evidence pointing out a finger towards the accused. But in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse the Appellate Court can interfere with the order of the acquittal. The Appellate Court should bear in mind the presumption of innocence of the accused and further, the trial court's acquittal strengthens the presumption of his innocence. Interference in a routine manner where the other views are possible should be avoided unless there are good reasons for interference. If a decision is arrived at based on no evidence or thoroughly 22 unreliable evidence and no reasonable person who acts upon it, the order would be perverse. But, if there is some evidence on record which is acceptable and which could be relied upon, the conclusion could not be treated as a perverse and the finding would not be interfered with.
31. In this judgment scope of Section 3 of the Indian Evidence Act, 1872 is analysed extensively. In appreciating the circumstantial evidence, the court can rely on it only if circumstances, should form the chain so complete that there is no escape but to arrive at a conclusion that with all in human probability the crime was committed by the accused and the nonetheless.
32. Independent and respectable inhabitants of the locality have been subjected to examination in respect of the mahazar such as search and seizure mahazar. Section 9 of the Indian Evidence Act, it is relating to the motive factor. In this case, no motive is established. However, the absence of the motive cannot be a ground to reject the case of the prosecution. However, at the same time 23 absence of motive in a case depending on circumstantial evidence is a factor that the weighs in favour of the accused
33. In the instant case the trial court while rendering an acquittal judgment analysed the evidence of PWs.1 and 3 and so also the evidence of PWs.8, 11, 13, 14, and 16. It has been noticed that the evidence is inconsistent and also contradictory to each other. Even the evidence of PWs.1 and 3 who are the material witnesses run contrary to each other.
34. It is required to be noted that this is a case of acquittal judgment rendered by the trial court. Considering the appeal on merits, keeping in mind the principles as laid down by the Hon'ble Apex court, the Appellate Court should not ordinarily set aside the judgment of acquittal in a case where two views are possible, though the view of the Appellate Court may be the more probable one. While dealing with the judgment of acquittal the Appellate Court has to consider the entire evidence on record to arrive at a 24 finding as to whether the views of the trial courts were perverse or otherwise unsustainable. That the Appellate Court is entitled to be considered whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence or had to take into consideration the evidence brought on record contrary to law. Similarly, the wrong placing of the burden of proof may also be a subject matter of scrutiny by the Appellate Court. The appellate court has to consider, firstly the views of the trial court judge as to the credibility of the witnesses and secondly the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted, thirdly, right of the accused to the benefit of the doubt and fourthly, the slowness of the Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
35. Though the Appellate Court has complete power to review, re-appreciation, and reconsider the 25 evidence upon which the order of acquittal is founded and the provision in the Code of Criminal Procedure puts no limitation, restriction, or condition on the exercise of such power and an Appellate Court based on the evidence before it may reach its conclusion both on the question of fact and the question of law it can reverse the acquittal judgment only for compelling reasons.
36. In the instant case, evidence of PWs.1 and 3 are to be analysed carefully as they are the material witnesses also the entire case is revolving around their evidence. The theory is that the victim was abducted in a broad daylight on the bike under the threat and the accused abducted her from Vijayapura and took her to Bang. The theory of abduction on the bike itself is unbelievable. The owner of the premises where the accused and victim stayed for 21 days did not suspect anything would make the prosecution case highly doubtful.
37. This Court has considered the evidence facilitated by the prosecution and mainly the evidence of 26 PWs.1 and 3 and who are the prime witnesses on behalf of the prosecution. Their evidence did not give any support to the prosecution theory. In this regard it is required to refer to the judgment of Umadevi v. Umed Bhai Jadhav Bhai
- (1978) 1 SCC 288 and the judgment in the matter of Anawarali and another v. State of Himachal Pradesh
- 2020 SAR Crime 1122.
38. In the instant case the trial Court has considered the evidence facilitated by the prosecution and finds that the prosecution has failed to facilitate worthwhile evidence by positive, cogent, corroborative by probably sing that the accused has forcibly abducted PW.3 at knifepoint that too in broad day light in the market area in Vijayapura. Therefore, the judgment does not call for any interference and we think that circumstances warrant interference in the acquittal judgment rendered by the trial Court. Accordingly, we proceed to pass the following : 27
ORDER The appeal is preferred by the appellate/State under Section 378(1) and (3) of Cr. P.C is hereby rejected.
Consequently, the judgment of acquittal dated 17.02.2021 rendered by the Addl. District & Sessions Judge, FTSC-I (POCSO) Vijayapur at Vijayapur in Special Case (POCSO) No.30/2016 is hereby confirmed.
SD/-
JUDGE SD/-
JUDGE swk/sn