Karnataka High Court
State Of Karnataka vs Sharif S/O. Dyamanna Kali on 21 November, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100498 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100498 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY
THE POLICE INSPECTOR,
KUNDAGOL POLICE STATION,
DIST: DHARWAD.
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
AND:
1. SHARIF S/O. DYAMANNA KALI,
AGE: 23 YEARS, OCC. MASON,
R/O BETDUR VILLAGE,
Digitally signed
TQ. KUNDAGOL, DIST. DHARWAD.
by RAMYA D
RAMYA Date:
D 2022.11.24
PIN-581207.
11:33:05
+0530
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CRL.A No. 100498 of 2019
2. SANTOSH S/O. DYAMANNA KALI,
AGE: 29 YEARS, OCC.COOLIE.
R/O. BETDUR VILLAGE,
TQ. KUNDAGOL, DIST. DHARWAD.
PIN-581207.
3. MANJUNATH S/O. DYAMANNA KALI,
AGE: 25 YEARS, OCC. MASON,
R/O BETDUR VILLAGE,
TQ. KUNDAGOL, DIST. DHARWAD.
PIN-581207.
... RESPONDENTS
(BY R.H.ANGADI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 (1) & (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 24/04/2019, PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE, AT
DHARWAD IN SPL. S.C.NO.30/2017 AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27.10.2022, COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
G BASAVARAJA J., DELIVERED THE FOLLOWING:
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CRL.A No. 100498 of 2019
JUDGMENT
1. The State has preferred this appeal under Section 378(1) & (3) of Cr.P.C., seeking to grant leave to appeal against the judgment and order of acquittal dated 24.04.2019 passed by the II Additional District and Sessions Judge and Spl. Judge, Dharwad in Spl.S.C.No.30/2017 and to set aside the judgment and order of acquittal dated 24.04.2019 passed by the II Additional District and Sessions Judge and Spl. Judge at Dharwad in Spl.S.C.No.30/2017 and convict the respondents/ accused for the offences punishable under Sections 323, 506, 448, 354(D), 376 read with Section 34 of the Indian Penal Code, 1860 (for short, 'the IPC') and under Section 4 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act').
2. The brief facts of the case of the prosecution are that: -4- CRL.A No. 100498 of 2019
2.1. Prior to one year from 01.07.2017, the accused No.1, used to follow the victim girl, blow whistles, and use other means to pressurize her in one way or another to accept his love proposal.
2.2. On 01.07.2017, the accused No.1 came to the house of the victim girl from the back door by covering his face with a monkey cap, hugged the victim girl tightly, gagged a cloth into her mouth, dragged her to the kitchen, and committed forcible sexual assault on her, showing a knife and threatening to take away her life if she disclosed the said facts to anybody.
2.3. Then he tied her hands and legs with rope and escaped from there by hiding his face with a monkey cap. P.W.4 heard the screaming of victim, rushed to her and removed the tied rope and set free her hands and legs.-5-
CRL.A No. 100498 of 2019
3. On 08.07.2017, respondents/accused Nos.1 to 3 picked up a quarrel with C.W.10 and assaulted him with their hands. In this regard, the first informant lodged the complaint. After the completion of the investigation, I.O. charge-sheeted the accused for the alleged commission of offences punishable under Sections 448, 506, 376, 354(D), 323, read with Section 34 of the IPC, and Sections 4 and 12 of the POCSO Act.
4. After the filing of the charge sheet, the learned Spl.
Judge has taken cognizance against the accused for the alleged commission of offenses. Accused No.1 to 3 have obtained bail, and copies of prosecution papers were furnished to the accused. On hearing, the Trial Court has framed the charges for the alleged commission of offenses; same was read over and explained to the accused, having understood the -6- CRL.A No. 100498 of 2019 same, the accused have pleaded not guilty and claimed to be tried.
5. In order to bring home the guilt of the accused, the prosecution has examined in all 24 witnesses as PWs.1 to 24, 22 documents were got marked as Exs.P.1 to 22 & 21 and material objects got marked as MOs.1 to 21. On closure of the prosecution evidence, the trial court has recorded the statements under Section 313 of the Cr.P.C., as to the incriminating evidence put to the accused. All the accused have totally denied the evidence appearing against them. However, they have not chosen to lead any defense evidence on their behalf. After hearing the arguments, the Trial Court has acquitted the accused from the alleged commission of offences. Being aggrieved by the judgment of acquittal, the State has preferred this appeal against the respondents.
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6. Sri. V.M.Banakar, learned Addl. SPP has submitted his arguments that:
6.1. The judgment and order of acquittal passed by the Trial Court are contrary to the law, facts, and evidence on record.
6.2. PW 1 is the victim girl, who is 13 years old;
PWs.2 and 3 are the victim girl's parents; and PW 8 is a victim girl's relative. They have consistently and categorically stated about the sexual assault committed by accused No.1. The evidence of PW.1/victim girl is further corroborated by Ex.P.1-complaint and also Ex.P.3-statement recorded under Section 164 of the Cr.P.C. before the JMFC Court.
6.3. The Trial Court by giving much importance to the minor contradictions and omissions found in the evidence of these witnesses, has erroneously acquitted the respondents/ accused. -8- CRL.A No. 100498 of 2019 The same is perverse and not sustainable in the eyes of the law.
6.4. PW.17 is the Head Master of the school wherein the victim girl studied and issued date of birth certificate of the victim girl as per Ex.P.13 and also produced the school register extract, and the same is produced as Ex.P.14.
6.5. The date of birth of the victim girl is 17.04.2005 and the incident has occurred on 01.07.2017. Admittedly, the victim girl is less than 17 years old as on the date of the incident. This aspect of the matter has not been properly considered by the Trial Court.
6.6. The Trial Court has not taken into consideration the provisions of Section 7, 29 and 30 of the special enactment, i.e., the POCSO Act. -9- CRL.A No. 100498 of 2019 6.7. The minor contradictions have nothing to do with the case of the prosecution. The reasoning assigned by the Trial court for the acquittal of respondents/accused is not sustainable. The Trial court acquitted the accused on the ground that there were no marks of injuries found on the victim girl and the hymen was intact. The said reasoning assigned by the Trial Court is not sustainable in view of the reported decision of this Court in the case of C.DEVA @ DYAVA Vs. STATE OF KARNATAKA reported in (2007) 12 SCC 122 .
6.8. Further, it is submitted that PW.4 is the neighbour of the victim girl; she has stated that on the date of the incident, after hearing a crying sound in the house of the victim girl, she rushed to her home and untied her hands and legs, which were tied with rope, and on enquiring the victim girl, she narrated the entire
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CRL.A No. 100498 of 2019 act committed by the accused. The Trial Court has not whispered anything about this witness and has not considered the evidence of PW.4 and has mechanically passed the impugned judgment and order of acquittal.
6.9. The Trial Court has failed to appreciate the evidence on record in a proper and perspective manner, and he prays to allow this appeal.
7. As against this, Sri. R.H.Angadi, the learned counsel for the respondents/accused has submitted his arguments that there is an abnormal delay in the filing of the complaint. The prosecution has failed to explain the delay in filing the complaint. The evidence of prosecution witnesses is quite unnatural and not believable. Considering the conduct of the complainant and their family members, as well as the previous enmity between the complainant's family and the accused, the Trial Court has appreciated the
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CRL.A No. 100498 of 2019 evidence on record in a proper perspective manner and passed the impugned judgment. Absolutely, there are no grounds to interfere with the impugned judgment. On all these grounds, the learned counsel for the respondents/accused sought for dismissal of this appeal.
8. We have carefully examined the prosecution papers, evidence, and impugned judgments. The prosecution has produced Ex.P.1 which is typed, but in the evidence of PW.1 she has stated that she has filed a handwritten complaint. The prosecution has not offered any proper explanation for the delay in filing the complaint. As on the date of the complaint the victim girl has attended the school. As per Ex.P.21- FIR, it is stated that since there is a life threat by the accused, though the complaint was belatedly filed, in the evidence of PW.1-complainant, she has not whispered anything about the delay in filing the complaint-Ex.P1 and also the victim-PW.1 has stated
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CRL.A No. 100498 of 2019 that she has not stated the name of the accused to her parents, though she is acquainted with the identification of the accused, but she has stated that somebody has entered her house and committed rape on her.
9. The victim girl, accompanied by her uncle, went to his house in Tadasa Village, stayed for eight days, and returned to her village on 09.11.2017. Then she got to know that the accused No.1 had picked up a quarrel and had assaulted her father. She then told her mother about the alleged sexual assault committed by accused No. 1. On 11.07.2017 mother of the victim took her to the Police Station and have lodged a complaint as per Ex.P1.
10. P.W.1 during her course of cross-examination, has deposed that she was called to her place from Tadasa Village to register a complaint. Further, she has stated that the Police Station is at a distance of 6 km
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CRL.A No. 100498 of 2019 from her village. P.W.1 with her uncle went to the police station to file a complaint against the accused, however the police have delayed to receive the same for 2 to 3 days. Further, she admitted that there was an enmity between the accused and their parents with regard to the Grama Panchayat Election and has deposed that when the accused No.1 entered her house, he stayed there for only half a minute.
11. P.W.2-Suresh Chaluwadi and PW.3-Padmavati Chaluwadi, father and mother of the victim girl, deposed in their examination in chief that nine months ago they had gone for work and that the victim girl was alone in the house. At about 5:00 p.m., they returned to their house and saw that the neighbours were gathered near their house, their daughter was weeping. On enquiry, she revealed that around 04:30 p.m., one youth aged between 20 and 25 years entered her house by covering his face with a monkey cap and was sitting in a bathroom. When
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CRL.A No. 100498 of 2019 she entered the bathroom, he put the cloth in her mouth, tied her hands and legs, threatened her and committed sexual assault with the point of a knife on her before going away. Then they searched for the person who had committed the sexual assault, but they could not secure him. Then they sent the victim girl to the house of her younger sister of PW.2 which is in Tadasa village, where she stayed there for eight days. Further, they deposed that after eight days, having fed up with this incident of abuse who had caused sexual assault on their daughter and after the accused assaulted PW.2, on that day they lodged a complaint to the Police. During the course of cross- examination of PW.2, it is clearly admitted as to the enmity between them and the accused with regard to the Gram Panchayat Election. Further, they have clearly admitted that on the date of the incident, the younger brother of PW.2 Ningappa Chaluwadi/CW.13
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CRL.A No. 100498 of 2019 had informed him not to file a complaint against the accused.
12. P.W.4-Fareeda Begaum Harobidi has deposed in her evidence that at the relevant point of time between 4:00 and 5:00 p.m., she was sitting in the house; by that time, she had heard the crying sound of the victim girl; then, she went there and found that the victim girl's legs and hands were tied with a rope, the cloth was put in her mouth, and on enquiring, she revealed that a person aged between 25 and 26 years entered into her house by covering his face, tied her, and committed sexual assault with a point of a knife and ran away through the back door of the house. Thereafter, she came to know about the galata between the accused and the parents of the victim girl. Then she learned that accused No.1 had sexually assaulted the victim girl. She has also admitted as to the enmity between the accused and the parents of
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CRL.A No. 100498 of 2019 the victim girl with regard to the Grama Panchayat Election.
13. The careful scrutiny of all these material evidence, it is crystal clear that though the victim girl and her parents came to know about the alleged act of accused, they have not lodged a complaint for ten days. If accused No.1 truly committed this alleged offence, the parents of the victim girl would not keep quite till ten days and PW.2 being the father of the victim would not have abused the accused as to the sexual assault on his daughter after lapse of eight days from the date of incident. Only after assault, the victim informed her mother as to the sexual abuse. Admittedly, there was an enmity between the accused and the parents of the victim girl prior to this alleged incident. Such being the case, if the accused No.1 has committed sexual assault on the victim, they should have filed a complaint against the accused or at least against some unknown person,
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CRL.A No. 100498 of 2019 but they have not done so. PW.6 also informed PW.2 not to file a complaint against the accused. Why has PW.6 informed PW.2 not to file a complaint against the accused at the relevant time? Why have PWs.2 and 3, being the parents of the victim girl have not preferred to lodge a complaint before the Police at the relevant point of time? If, out of fear, the victim has not preferred to lodge a complaint against the accused, why has PW.2 picked up the quarrel against the accused after eight days from the date of the alleged incident?
14. It is the case of the prosecution that after eight days from the date of the alleged incident, the accused has assaulted PW.2-father of the victim girl. If really the accused had assaulted PW.2, he would have lodged a complaint against him before the police, but he has not done so. At the instance of PW.2, the victim- PW.1 returned from Tadasa village and thereafter, PWs.1 to 3 with others went together to the Police
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CRL.A No. 100498 of 2019 Station to file a complaint. However, after three days, the police received the complaint on 11/07/2017 at about 3:45 p.m. This evidence of prosecution witness clearly shows that only to falsely implicate the accused for the alleged heinous offences.
15. In paragraph no.15 of the judgment the trial court has rightly pointed out and appreciated the documents produced by the headmaster of the Government Primary school, Bettaduru. Para No.15 page 17 reads here as under:
"The accused at the time of recording his statement under section 313 of Cr.P.C. produced 2 documents before this court. The first document is the letter issued by the headmaster of Government Higher Primary School, Betadur and daily attendance of students for the month of July 2017 issued by the Headmaster, Government Higher Primary School, Betadur. As per the 1"
document the timings of the school was 10.30 a.m., to 05.05 p.m., from Monday to Friday. On perusal of the 2nd document the victim girl was present on 11-07-2017. If the victim girl was present in the school on 11-07-2017 it is highly impossible to present at the police station on 11- 07-2017 at 3.45 p.m., because the timings of the school is from 10.30 a.m., to 05.05 p.m. A person cannot present at two places at a time, but in this case the documents produced by the prosecution and documents produced by the accused show that the victim girl was present two places at the same time. Hence, the registration of the case on 11-07-2017 by the complainant police leads to
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CRL.A No. 100498 of 2019 suspect the case of the prosecution. The victim girl clearly admitted in her cross examination that they left the house at 10.00 a.m., to go to police station, but she was present in the school on 11- 07-2017. It is not the case of the prosecution that the victim girl had obtained permission from the school to go to police station. Such being the case, it is highly improbable to believe the case of the prosecution. As per the evidence of the victim girl she herself wrote the first information and lodged the case against the accused, but first information produced before this court is a typed one. This fact also leads to suspect the case of the prosecution."
16. The complaint was filed by PW.1 at the instance of her parents. Only during the course of cross- examination of the prosecution witness, these true facts were elicited by the accused counsel. The evidence of prosecution witnesses is quite unnatural, untrustworthy, unbelievable and also against to the conduct of an ordinary prudent man. Therefore, the explanation offered by the prosecution cannot be accepted. On the contrary, the evidence of PWs.1 to 3 reveals that in order to take revenge against the accused, who had vengeance in their mind, as to the previous galata made in respect of Gram Panchayat Election, the PW.1 has lodged a complaint in the
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CRL.A No. 100498 of 2019 Police Station at the instance of her parents, which is an abuse of process of law.
17. In the matter of RADHU vs STATE OF MADHYA PRADESH reported in 2007 CRI.L.J. 4704, the Hon'ble Apex Court took the view that false charges of rape are rare and there have also been rare instances where the parents have persuaded an obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability. Para 5 of the judgment being relevant, same is reproduced herein below: -
"5. ....... The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
18. In this regard, the Trial Court has also properly appreciated the evidence on record and came to the
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CRL.A No. 100498 of 2019 conclusion that the prosecution has failed to furnish proper explanation for the delay in filing the complaint.
19. Insofar as medical evidence is concerned, Ex.P.16- Medical Certificate issued by the Gynecologist reveals that the victim girl came with a history of assault on 01.07.2017 at about 4:30 p.m., in her residence by a mask-man. As alleged by the victim, the accused disrobed her, tied her hands and legs together and attempted to penetrate her; however, the case history suggests no penetratial sex. The victim revealed the same after ten days. She might have had several baths and might have changed clothes several times. The hymen is intact. On clinical examination of the victim girl, the medical officer has opined as under:
"After eliciting the history from Pratiba Suresh Chalawadi, performing physical and genital examination and going through the reports of the tests done I am of the opinion that there is no evidence of forceful veginal intercourse which
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CRL.A No. 100498 of 2019 neither refutes nor confirms the forceful sexual assault.
---------------X-------------- 18/9/2017 After going through the FSL report I am of the opinion that there is no evidence of forceful veginal intercourse which neither refutes nor confirms the forceful sexual assault."
20. The RFSL report-Ex.P.17 issued by the Scientific Officer (Biology Section), Regional Forensic Science Laboratory (Police Department), Ramatirth Nagar, Northern Range, Belagavi reveals the opinion of the Scientific Officer as under:
"1) Seminal stains were not detected in Article nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.
2) Blood stains were detected in Article nos.3, 9 and 10.
3) Blood stains were not detected in Article nos. 1, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18 and 19.
4) Skin tissue was not detected in Article nos. 7 and 13."
21. P.W.20-Dr. Ravindra Bover, who has examined the accused, has opined that he has not found any external injuries on the body of the accused, and he has deposed as to the certificate-Ex.P.18.
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CRL.A No. 100498 of 2019
22. P.W.21-Dr. Shrividya Y., who has examined the victim girl, has deposed in her evidence as to the Ex.P17. Therefore, the evidence of prosecution witnesses is not supported with the medical evidence. When the evidence of material prosecution witnesses creates a doubt about the act of the accused, the medical evidence placed by the prosecution is immaterial. If really the accused No.1 has committed rape on the victim girl, PWs.2 and 3 being the parents of the victim girl would have taken the victim to hospital for taking suitable treatment but they have not done so. In spite of that, PWs.2 and 3 have sent PW.1 to the house of the younger sister of PW.2 at Tadasa village. This conduct of PWs.2 and 3 creates reasonable doubt about the act of the accused. Even after filing complaint also, the victim girl or the parents of the victim have not disclosed the name of the accused and same is also not
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CRL.A No. 100498 of 2019 entered in the medical certificate which is marked as Ex.P.16.
23. As observed by the Hon'ble Supreme Court in the case of RAJESH SINGH & OTHERS vs. STATE OF UTTAR PRADESH reported in (2011) 11 SCC 444 and in the case of BHAIYAMIYAN ALIAS JARDAR KHAN AND ANOTHER vs. STATE OF MADHYA PRADESH reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the Trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal is somewhat circumscribed and if the view taken by the Trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the Trial Court, it might have taken a difference view. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the
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CRL.A No. 100498 of 2019 scope of appeal under Section 378 of Cr.P.C., no case is made out to interfere with the impugned judgment and order of acquittal.
24. On re-appreciating the entire evidence, we do not find any illegality in the impugned judgment passed by the Trial Court. The Trial Court has properly appreciated the evidence on record and passed the impugned judgment. Hence, there are no grounds to interfere with the impugned judgment. Hence, we proceed to pass the following:
ORDER
(i) The appeal is dismissed.
(ii) The impugned judgment and order of acquittal passed by the learned II Additional District & Sessions & Special Judge, Dharwad in Spl.S.C.No.30/2017 dated 24.04.2019 is confirmed.
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CRL.A No. 100498 of 2019
(iii) Registry is directed to transmit the Trial Court Records along with the copy of this order to the Jurisdictional Court.
Sd/-
JUDGE Sd/-
JUDGE RH