Karnataka High Court
State Of Karnataka vs Devappa S/O Timmanna And Ors on 24 June, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 200194 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO.200194 OF 2021
(378(Cr.PC)/419(BNSS))
BETWEEN:
STATE OF KARNATAKA
THROUGH THE PSI OF JALAHALLI PS,
TQ. DEVADURGA, DISTRICT RAICHUR,
REPRESENTED BY,
ADDL. STATE PUBLIC PROSECUTOR,
HCK, KALABURAGI.
...APPELLANT
(BY SRI JAMADAR SHAHABUDDIN, HCGP )
Digitally signed
AND:
by RENUKA
Location: HIGH 1. DEVAPPA S/O TIMMANNA,
COURT OF
KARNATAKA AGE: 29 YEARS, OCC: TRACTOR DRIVER,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
2. DEVAPPA S/O NANDAPPA,
AGE: 32 YEARS, OCC: DRIVER,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
3. PARAMAPPA S/O TIMMAPPA,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
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4. SHIVAPPA S/O TIMMAPPA,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
5. BASAPPA S/O NANDAPPA,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
6. MALLAPPA S/O LACHAMAPPA @ TIMMAPPA,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
7. DHARMAPPA S/O LACHAMAPPA,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
8. LACHAMAPPA S/O SIDDAPPA,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
9. TIMMAPPA S/O PARAMANNA,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
10. YALLAPPA S/O SHAMBAPPA,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
11. NANDAPPA S/O PARAMANNA,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O. BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
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12. VIJAYLAXMI D/O NAGAPPA,
AGE: 22 YEARS,
R/O BHUNKALADODDI VILLAGE,
TQ. RAICHUR, DIST. RAICHUR.
AMENDED AS PER COURT ORDER DATED 15.11.2024
...RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE FOR R1 TO R11;
R12 SERVED)
THIS CRL.A. IS FILED UNDER SECTION 378 (1) AND (3)
OF THE CR.P.C. PRAYING TO, A) GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 04/06/2020,
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
RAICHUR, AT RAICHUR, IN SPECIAL CASE (POCSO)
NO.580/2017, THEREBY ACQUITTING THE ACCUSED /
RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 448, 354, 506, 509 AND 504 R/W 149 OF
INDIAN PENAL CODE AND U/S 8 AND 12 OF POCSO ACT. B)
SET ASIDE THE JUDGMENT AND ORDER DATED 04/06/2020
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
RAICHUR, AT RAICHUR, IN SPECIAL CASE (POCSO) NO.
580/2017 THEREBY ACQUITTING THE RESPONDENTS -
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
143, 147, 448, 354, 506, 509 AND 504 R/W 149 OF INDIAN
PENAL CODE AND U/S 8 AND 12 OF POCSO ACT. C) CONVICT
AND SENTENCE THE RESPONDENTS/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 448, 354,
506, 509 AND 504 R/W 149 OF INDIAN PENAL CODE AND U/S
8 AND 12 OF POCSO ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE V SRISHANANDA) Heard Sri Jamadar Shahabuddin, learned High Court Government Pleader for the appellant/State and Sri S.S. Aspalli, learned counsel for respondent Nos.1 to
11.
2. This appeal is by State challenging an order of acquittal passed by the learned Special Judge in Special Case (POCSO) No.580/2017.
3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:
3.1. Based on the statement of the victim girl (P.W.4), criminal action was set into motion. P.W.4 is the daughter of Nagappa, aged about 14 years, said to have been studying in 9th standard and the resident of Bhunkaladoddi village. She persuaded her education in -5- NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR Government High School. At that juncture, accused No.1 being the driver of a tractor and accused No.2 being a private vehicle driver, used to tease her and rag her for a period of about five months when she was proceeding to the school. She tolerated the above behavior of the accused initially neglecting eve teasing.
3.2. However, misbehavior of the accused persons continued and on 05.12.2016 at about 10-30 p.m., she noticed that somebody is pulling her leg. It is found by her that it is accused No.1 and she raised alarm for help for having noticed the presence of accused No.1 in her house.
Immediately, her parents woke up and they also witnessed the presence of accused No.1. Noticing the sequence of events, accused No.1 ran away from the spot. At that juncture, when they enquired, P.W.4 revealed what has happened earlier and the incident that has occurred on that day.
-6-NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR 3.3. On the next day, they approached the house of accused No.1 and apprised all the inmates of the house of accused No.1 as to what transpired on the previous night.
Accused No.2, who was present in the house of accused No.1 not only justified the act of accused No.1 but also threatened the parents of the victim girl with dire consequences, if they approach the police or disclose the incident to anybody.
3.4. Both the accused also threatened the parents of the victim girl that they do not even hesitate to kidnap the victim girl and hearing those words, the parents came back and kept quiet for some time, but despite such warning given by the parents of the victim girl, eve teasing of the victim girl by the accused persons continued.
3.5. When the matter stood thus, on 10.12.2016 at about 09-00 a.m., accused Nos.3 to 11 came near the house of the complainant and they all threatened with dire -7- NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR consequences to the parents of victim girl (P.W.1 and P.W.2) and the victim girl (P.W.4). They further abused them in filthy language. Being unable to bear with this attitude of the accused persons, the complainant approached the police and lodged a complaint.
4. A case was registered in Crime No.127/2016 and based on the material collected by the investigating agency, accused persons were charge sheeted. Presence of the accused persons were secured by the learned Special Judge and trial was conducted.
5. The prosecution in order to bring home the guilt of the accused, examined as many as ten witnesses namely, P.W.1 to P.W.10 and placed on record six documentary evidence which were exhibited and marked as Exs.P.1 to P.6 comprising complaint, spot mahazar, letter dated 31.05.2017, Khata extract, school birth certificate and the FIR.
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6. After conclusion of the recording of the evidence, the learned Trial Judge recorded the accused statements, wherein the accused persons denied all the incriminatory circumstances and did not choose to place any written submissions on record nor adduced any defence evidence.
7. Thereafter, the learned Trial Judge heard the arguments on both sides and by the impugned judgment, acquitted all the accused.
8. Being aggrieved by the same, the State had filed the present appeal on the following grounds:
That, the Judgment passed by the trial Court is perverse.
That, the impugned Judgment of acquittal passed by the trial Court is contrary to the facts, law and material on record and as such, same is liable to be set aside.
The reasons assigned by the trial Court while passing the impugned Judgment and order of -9- NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR acquittal are erroneous and as such the same is liable to be set aside.
The Trial Court has not properly appreciated the evidence of the prosecution witnesses.
That, the trial Court has totally ignored these provisions and has not drawn the statutory presumption which Is mandatory to be drawn against the accused. The effect of this provision is that, Court has to start with the presumption once the offences are alleged against the accused under the Act. The statutory presumption creates an exception to the ordinary rule of presumption of innocence available to an accused in a ordinary criminal trial and such presumption puts the onus on accused to establish his innocence. Section 29 of the POCSO Act is a species of such exception to the ordinary rule of presumption of innocence and must be born in mind by appreciating the evidence of prosecution witnesses in a crime under the POCSO Act.
Further the section 30 raises presumption as to the mental condition. This mental condition is inclusive of "culpable mental condition. This mental condition is inclusive of "culpable mental state" includes intention, motive,
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR knowledge of a fact and the belief in, or reason to believe, a fact. Further, this presumption is so strong that the accused has to prove the absence of culpable mental state beyond all reasonable doubts. The accused is not relieved by showing the preponderance of probability.
That, in Anandaraj V/s State, in Criminal Appeal No.90/2016 Hon'ble High Court of Judicature of Madras held that, section 30 of the POCSO Acts provides that in any prosecution for any offence under the POCSO Act which requires culpable mental state on the part of the accused, the Court shall presume the existence of such mental state.
Hence, the mental state shall be presumed under law when the offence alleged against the accused is under the POCSO Act. The trial Court has not even discussed these two presumptions which operates against the accused and in favour of the victim.
In the case of Vijay @ Chinee -Vs- State of Madhya Pradesh, ruling reported in (2010) 8 SCC 191 the Hon'ble Supreme Courthas held;-
"In state of Maharashtra Vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 this Court held that a woman, who is
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. A prosecutrix of a sex offence cannot be put on part with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence".
In the case of State of U.P. Vs. Pappu, (2005) 3 SCC 594, Hon'ble Supreme Courthas held that, "even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion.
Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value. It may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.
In the case of State of Punjab -Vs- Gurmit Singh, (1996) 2 SCC 384, the Hon'ble Supreme Court has held that, "in cases involving sexual harassment, molestation, etc., the Court is
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The court observed as under: The Court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix.... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case..... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances". It further held, "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations".
In the case of state of Orissa-Vs- Thakara Besra, (2002) 9 SCC 86the Hon'ble Supreme Court has held that, "rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR where the witnesses had not seen the commission of the offence".
In the case of State of H.P. Vs- Raghubir Singh, (1993) 2 SCC 622, the Hon'ble Supreme Court has held that, "there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.
It is relevant to mention here that, further another cardinal principle of law is that when there is a difference between the ocular evidence of the victim and the medical evidence, then the ocular evidence has to be believed and given full weightage.
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR That, the trial Court unnecessarily discussed some minor and negligible points and passed the acquittal judgment on surmises and conjuncture, which is against to the statutory mandate under law. The sole testimony of the victim is reliable and clear. Hence, the judgment and order, acquitting the accused is not in accordance with law. Further, Hon'ble 2nd Addl. District and Sessions Judge at Vijayapura has not correctly appreciated the relevant provisions of Indian Penal Code and POCSO Act and the evidence on record.
But the Trial Court has disbelieved her version on the ground that there is a variation between her statement, which is recorded under Sec. 164 of Cr.P.C and the statement given before the Court. It is relevant to mention here itself that, in the case of S.K.Khilafat Mojani -Vs- State of West Bengal, reported in 2010 (4) Crimes 666 (Calcutta)ithas held that, Sec. 164
-statement of victim girl in rape case recorded under such statement not being substantiative evidence could only be used either to contradict or to corroborate the maker thereof statement can be admitted into evidence and be marked as exhibit without magistrate but recorded it being examined in Court.
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR Accused were used to tease and rag her since 5-6 months while she was going to school she tolerated the above behaviour of accused Nos.1 and 2 neglecting the same misbehaviours of accused Nos.1 and 2 was brought to the notice of their parents. Despite of it they continued the misbehave when she was sleeping in her house on 05.12.2016 at 22:30 hours she experienced pulling of her leg, she awaken and saw the accused No.1 she screamed as she frightened from the presence of accused No.1, her parents PW.1 and PW.2 also awaken and that also witnessed. The court below has blindly disbelieved the evidence of material witnesses including PW.4 victim girl and parents of victim girl i.e., PW.1 and PW.2, PW.3 and PW.5 and PW.8, PW.6, PW.7, PW.9 and PW.10.
9. Sri Jamadar Shahabuddin, learned High Court Government Pleader for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the Trial Judge has not properly appreciated the material evidence and did not find the probative value of the certificate marked at Ex.P.5 and
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR demanded strict proof of the age of the victim girl and wrongly appreciating the material evidence, held that the prosecution has failed to prove that P.W.4 is a child in the meaning of the POCSO Act and wrongly acquitted the accused.
10. He would further contend that when Ex.P.5 is not in serious dispute, especially taking note of the fact that P.W.4 was only a school going girl, studying in 9th standard, the learned Trial Judge ought not to have held that the prosecution has failed to prove that P.W.4 is a child.
11. Thus, on wrong appreciation of the material evidence on record, an order of acquittal has been passed which resulted in miscarriage of justice and sought for allowing the appeal.
12. Per contra, Sri S.S. Aspalli, learned counsel for the accused/respondents supports the impugned judgment.
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13. He would further contend that the entire incident is an imaginary incident and with an intention to take upper hand in the pending civil matters, a false case has been foisted by the accused persons.
14. He would also contend that belated complaint itself exposes the hollowness in the case of the prosecution, which has been rightly appreciated by the learned Trial Judge in the impugned judgment and sought for dismissal of the appeal.
15. Having heard the arguments on both sides, this Court perused the material on record meticulously. On such perusal of the material evidence on record, the following points would arise for consideration:
(i) Whether the material evidence placed by the prosecution is sufficient enough to establish that the accused are guilty of the offences punishable under Sections 147, 448, 354, 506, 509, 504 read with Section
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR 149 of IPC and Sections 8 and 12 of the POCSO Act?
(ii) Whether the impugned judgment is suffering from legal infirmity or perversity an thus call for interference?
(iii) If answer to point Nos.1 and 2 are in the affirmative, what is the appropriate sentence in the case on hand?
(iv) What order?
Regarding Point Nos.1 and 2:
16. In the case on hand, the complainant is examined as P.W.1, his wife is examined as P.W.2 and victim girl is examined as P.W.4.
17. It is the case of the prosecution that there was eve teasing by accused Nos.1 and 2 from the beginning and that eve teasing continued for more than six months which was ignored by P.W.4 and did not even intimate the same to her parents. It is further case of the prosecution that on 05.12.2016 at 10-30 p.m. accused No.1 said to
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR have visited the house of the victim girl and pulled her leg and when she noticed the same, she raised alarm and at that juncture, P.W.1 and P.W.2 got up from the sleep and they noticed accused No.1. However, they visited the house of accused No.1 next day, wherein accused No.2 was present and he gave a threat of dire consequences, if the incident is disclosed to anybody or any police complaint is filed. Therefore, the complainant party kept quiet.
18. When the matter stood thus, as per the prosecution again on 10.12.2016 at 09-00 a.m., accused Nos.3 to 11 came near the house of P.W.1 and P.W.2 and gave a life threat. As there was continuation of eve teasing by accused Nos.1 and 2 to victim girl, it is at that juncture, the complainant thought it fit to report to the police and on 20.12.2016 by visiting the police station, lodged the complaint, which was registered in Crime No.127/2016.
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19. With regard to the age of the victim, the investigating officer has collected a certificate from the school authority, which is marked at Ex.P.5.
20. The learned Trial Judge in paragraph Nos.11 to 14 has discussed in detailed as to why he did not believe Ex.P.5 in determining the age of the victim girl. For ready reference, those paragraphs are extracted as under:
"11. Prosecution to prove the age of PW-4 relies on Ex.P-5 certificate issued by PW-9 Gyanappa, Head Master of Government High School, Bhunkaladoddi. Prosecution has examined PW-9, who is author of Ex.P-5 to prove its contents. SPP would contend that Ex.P-5, contents of which proved from the evidence of PW-9 establishes the age of PW-4. Ex.P-5 is neither school certificate nor matriculation certificate nor birth certificate. For better sound appreciation of Ex.P-5, it is expedient to cull-out the contents of Ex.P-5. Ex.P-5 reads thus;
zÀÈrüÃPÀgÀt F ªÀÄÆ®PÀ zÀÈrüÃPÀj¸ÀĪÀÅzÉãÉAzÀgÉ ²æà £ÁUÀ¥Àà EªÀgÀ ªÀÄUÀ¼ÁzÀ «dAiÀÄ ®Qëöä ¸À. ¥Ëæ. ±Á¯É §ÄAPÀ®zÉÆrØAiÀÄ°è 10 £Éà vÀgU À wÀ AiÀÄ°è MzÀÄwÛzÄÀ Ý EªÀgÀ eÁw »A. PÀÄgÀħgÀÄ EzÀÄÝ ªÀÄvÀÄÛ d£Àä ¢£ÁAPÀ 07.06.2002 EgÀÄvÀz Û AÉ zÀÄ zÀÈrüÃPÀj¸ÀÄvÉÃÛ ªÉ.
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR ¸À».
ªÀÄÄRå UÀÄgÀÄUÀ¼ÀÄ, ¸ÀgPÀ Áj ¥ËæqsÀ ±Á¯É §ÄAPÀ®zÉÆrØ. vÁ. zÉêÀzÀÄUÀð, f. gÁAiÀÄZÀÆgÀÄ.
12. On plain reading of Ex.P-5, any prudent man can infer that it is not the certified copy of admission register of school. It is true that any entry in any public or other official book, register or record made by public servant in discharge of his official duty, such book, register or record is a relevant fact. Prosecution ought to have produced certified copy of public record to prove the entry made by public servant in the school admission register. PW-9 has testified to the effect that he issued Ex.P-5 at the request of police. He has unequivocally stated in his cross-examination to the effect that he does not know who gave date of birth of PW-4 at the time of her admission to the school where she first attended. He does not bring admission register. He does not know, who caused entry regarding the date of birth of PW-4 in the school register. PW-9 has not mentioned even the serial number of admission register pertains to PW-4. Since Ex.P-5 is not certified copy of school admission register i.e. public record, which mandated as per Sec.76 of the Indian Evidence Act, same cannot be considered as a valid document and public record. Therefore, contents of Ex.P-5 cannot be admitted as a relevant piece of
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR evidence to believe that PW-4 born on 7.6.2002. Evidence of PW-9 does not throw light on the exact date of birth of PW-4. Evidence of PW-9 though proves that he issued Ex.P-5, but his evidence and Ex.P-5 cannot be considered as a valid document to believe the age of PW-4.
13. Counsel for the accused has pressed into service above decision of Hon'ble Apex Court in case of Birad Mal Singhvi Vs. Anand Purohit with support of his contention that Ex.P-5 cannot be considered to determine the age of PW-4. This decision although does not directly bearing to the case on hand but it espouses this court to discard Ex.P-5 through observation in para-16 of the Judgment to the effect that Ex.P-5 has no probative value within Sec.35 of the Evidence Act. Further, counsel for the accused has pressed into service another above decision of Hon'ble Apex Court in case of Alamelu and another Vs. State represented by Inspector of Police and other connected cases with support of their contention that Ex.P-5 is not admissible in evidence to determine the age of PW-4. Hon'ble Apex Court in this decision at para-38 was pleased to hold that though TC issued by the Government School and duly signed by its Head Master is admissible in evidence U/Sec.35 of the Evidence Act, but such certificate has no evidential value unless proved.
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR Hon'ble Apex Court was pleased to lay-down the above law by placing reliance on its previous decisions and also above noted decision. In the light of decision of Hon'ble Apex Court of India in case of Ravindra Singh Vs. State of UP reported in (2006) 5 SCC 584, court of law shall apply same procedure for appreciation of documents to determine the age in both Civil and Criminal case by applying provisions of Sec.35 of the Evidence Act.
14. In the light of consistent view of the Hon'ble Apex Court, Ex.P-5 cannot be considered as a proof of material/document to accept the age of PW-4. Prosecution miserably fails to prove that PW-4 is aged below 18 years as mandated by law. There are no other material to believe that PW-4 was aged below 18 years and a child as defined under the above provision of Pocso Act. In the result, this point is answered in negative."
21. At least before this Court, the prosecution should have filed the birth certificate issued by the competent authority to establish that the finding recorded by the learned Trial Judge with regard to the age of the victim girl in the light of Ex.P.5. No such attempt is made by the prosecution to establish the age of the victim girl
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR that she is a child in the definition of the POCSO Act. When such is the factual aspect, the question of POCSO Act being made applicable to the case on hand would not be available to the prosecution.
22. Further, if the victim is aged more than 18 years or she is not the child in the meaning of POCSO Act, then the incident could only be traced to an offence under Section 354 of IPC at the most.
23. It is pertinent to note that the said incident of pulling the leg of the victim girl has taken place on 05.12.2016. As could be seen from the complaint averments, eve teasing of P.W.4 has taken place about six months earlier to the incident. It is highly unimaginable that P.W.4 could not even report the said eve teasing to P.W.1 and 2 for a period of six months.
24. Further, the accused is able to establish before the Court that there is a pending civil matter. To take upper hand in the pending civil proceedings, complainant
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR party have foisted a false case is the clear defence that has been taken and that has been probablised during the course of the cross-examination of the prosecution witnesses.
25. In the absence of any other cogent material evidence on record, like the eyewitnesses to the incident, where eve teasing has taken place, the learned Trial Judge has thought it fit that the testimony of P.W.1 and P.W.2 and P.W.4 are self serving testimony without there being any sufficient corroboration and delayed complaint are all taken into consideration in a cumulative manner and therefore, learned Trial Judge has recorded an order of acquittal of all charges.
26. It is settled principles of law and requires no emphasis that when a duly constituted Court records an order of acquittal, innocence of the accused stands reinforced.
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR
27. Further, one of the celebrated principles of criminal jurisprudence is that if two views are permissible on same set of facts, the view that favours the accused must be taken into consideration by the Court.
28. Likewise, the prosecution has to place on record such possible/plausible evidence which would be sufficient enough to prove the charges beyond all reasonable doubt.
29. It is yet another settled principle of law that the prosecution has to travel a long way between the phrase 'may be proved' and 'actual proof' as any amount of suspicion would not take the seat of proof.
30. Therefore, in the light of the above settled legal principles, if the factual aspects of the case are re-appreciated in the light of the grounds urged by the appellant/State, this Court is of the considered opinion that the material evidence is not sufficient enough to prove the charges levelled against the accused to any extent, much less beyond reasonable doubt. In view of the
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NC: 2025:KHC-K:3356 CRL.A No. 200194 of 2021 HC-KAR foregoing discussion, Point Nos.1 and 2 are answered in the Negative.
Regarding Point No.3:
31. Since the answers of this Court on Point Nos.1 and 2 are in the negative, this point would not arise for consideration.
Regarding Point No.4:
32. In view of findings of this Court on Point Nos.1 to 3, the following order is passed:
ORDER
(i) The appeal is meritless and hereby dismissed.
(ii) Bail bonds, if any, stand discharged.
Sd/-
(V SRISHANANDA) JUDGE RSP List No.: 1 Sl No.: 41 CT:PK