Karnataka High Court
Nagaraj S/O Bharamanna Bhovi vs The State Of Karnataka on 7 January, 2025
1 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 07TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100335 OF 2020
C/W
CRIMINAL APPEAL NO.100334 OF 2020
IN CRL.A NO 100335 OF 2020
BETWEEN
NAGARAJ
S/O BHARAMANNA BHOVI
AGED ABOUT 19 YEARS,
OCCUPATION: DRIVER,
R/O. MAJJIGERI,
MUNDGOD - 581 349,
DISTRICT : UTTAR KANNADA
...APPELLANT
(BY SRI. SADIK KANVI, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY MUNDGOD POLICE STATION
MUNDAGOD - 581 349,
DISTRICT UTTAR KANNADA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
AG OFFICE, HIGH COURT BUILDING,
DHARWAD
...RESPONDENT
(BY SRI. ABHISHEK MALIPATIL, HCGP
VIDE ORDER DATED 16.01.2024,
NOTICE TO P.W.5 IS HELD SUFFICIENT)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR RECORDS IN SPL.CASE
NO.38/2014 AND TO SET ASIDE THE JUDGMENT DATED
12.10.2020 AND ORDER OF SENTENCE DATED 21.10.2020 IN
SPECIAL CASE NO.38/2014 PASSED BY THE ADDITIONAL
2 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
DISTRICT AND SESSIONS JUDGE, FTSC-1, U.K. KARWAR
SPECIAL COURT (FOR TRIAL OF CASES FILED UNDER POCSO)
ACT CONVICTING THE APPELLANT FOR OFFENCES UNDER
SECTIONS 366, 342, 376, 506 OF INDIAN PENAL CODE AND
SECTION 4 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012 AND SENTENCING TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF 10 YEARS AND TO PAY FINE
OF RS.10,000/- FOR THE OFFENCE UNDER SECTION 376 AND
SECTION 4 OF POCSO ACT IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS, SENTENCED
TO UNDERGO SIMPLE IMPRISONMENT FOR 4 YEARS FOR
OFFENCE UNDER SECTION 366 OF IPC, SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR MONTHS FOR OFFENCE
UNDER SECTION 342 OF IPC, SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR 6 MONTHS FOR OFFENCE UNDER SECTION
506 OF IPC AND ACQUIT THE APPELLANT / ACCUSED NO.1 BY
ALLOWING THIS APPEAL TO MEET THE ENDS OF JUSTICE. ANY
OTHER AND FURTHER RELIEFS AS THIS HONORABLE COURT
DEEMS JUST AND FIT IN THE ENDS OF JUSTICE INSOFAR AS
APPELLANT CONCERNED.
IN CRL.A NO 100334 OF 2020
BETWEEN
1 . RAMESH
S/O. YALLAPPA BHOVI
AGED ABOUT 24 YEARS,
OCCUPATION - GOUNDIWORK,
2 . MANJUNATH
S/O. HANUMANTHAPPA BHOVI
AGED ABOUT 25 YEARS,
OCCUPATION - DRIVER,
BOTH ARE R/O. MAJJIGERI - 581 349,
TQ. MUNDGOD,
DIST. UTTAR KANNADA.
...APPELLANTS
(BY SRI. VIJAY S. CHINIWAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH MUNDGOD POLICE STATION,
DISTRICT - UTTAR KANNADA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
3 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
HIGH COURT KARNATAKA,
BENCH AT DHARWAD.
...RESPONDENT
(BY SRI. ABHISHEK MALIPATIL, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO CALL FOR THE RECORDS OF THE CASE
IN SPECIAL CASE NO.38/2014 ON THE FILE ADDITIONAL
DISTRICT AND SESSIONS JUDGE FTSC - 1, U.K. KARWAR
(SPECIAL COURT FOR TRIAL OF CASES FILED UNDER POCSO)
ACT AND TO PASS A JUDGMENT OF ACQUITTAL BY SETTING
ASIDE THE JUDGMENT OF CONVICTION DATED 12/10/2020 AND
ORDER OF SENTENCE PASSED ON 21/10/2020 BY LEARNED
ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC- 1, U.K.
KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER
POCSO) ACT IN SPECIAL CASE NO.38/2014 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 4 READ WITH SECTION 17 OF
POCSO ACT AND UNDER SECTIONS 366-A, 342, 506 READ WITH
SECTION 34 OF IPC AND SENTENCING HIM TO UNDERGO
SIMPLE IMPRISONMENT FOR 7 YEARS AND PAY FINE OF
RS.5,000/- EACH FOR THE OFFENCES PUNISHABLE UNDER
SECTION 4 READ WITH SECTION 17 OF POCSO ACT, IN
DEFAULT OF PAYMENT OF FINE, THE ACCUSED NO.2 AND
3/APPELLANTS SHALL UNDERGO SIMPLE INPRISONMENT FOR 3
MONTHS. ACCUSED NO.2 AND 3 /APPELLANTS ARE SENTENCED
TO UNDERGO SIMPLE IMPRISONMENT FOR 5 YEARS FOR THE
OFFENCE UNDER SECTION 366A, READ WITH SECTION 34 OF
IPC. ACCUSED NO.2 AND 3 / APPELLANTS ARE SENTENCED TO
UNDER GO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE
UNDER SECTION 342 OF IPC. ACCUSED NO.2 AND 3 TO
UNDERGO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE
UNDER SECTION 506 OF IPC., FROM THE CHARGES LEVELED
AGAINST IN SO FAR AS APPELLANTS / ACCUSED NO.2 AND 3 IS
CONCERNED, TO PASS ANY OTHER ORDER THAT THIS HON'BLE
COURT DEEMS FIT IN THE INTEREST OF JUSTICE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
04.12.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
4 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) Since these appeals are arising out of the same judgment and order, they are clubbed together and disposed of by a common judgment.
2. While Crl.A.No.100334/2020 is filed by accused Nos.2 & 3 and Crl.A.No.100335/2020 is filed by accused No.1.
3. For the sake of convenience, parties are referred to by their ranks before the trial Court.
4. A charge sheet came to be filed against accused Nos.1 to 3, alleging that, at the relevant point of time, the prosecutrix was aged 16 years. On 07.08.2014 at 10.20 a.m, while the prosecutrix was proceeding from Majjigere to Mundgodu by walk, near Ishappana Tank, accused Nos.1 to 3 kidnapped her and took her into the forest area and tied her to the tree up to 3.00 pm. Accused No.1 persuaded her to love him and when she did not agree, he gave threat by putting a knife to her neck. He recorded the conversation 5 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 between him and the prosecutrix on his cell phone. Thereafter, accused No.1 committed rape on the prosecutrix, while accused Nos.2 & 3 stood guard and they also gave threats not to disclose the said act to anyone and thereby accused Nos.1 to 3 have committed the offences punishable under Sections 342, 363, 366, 366-A, 376-D, 506 r/w Section 34 of IPC and Sections 4 and 6 of POCSO Act 2012.
5. In respect of the incident, complaint is given by the prosecutrix. She has stated that she has studied 8th standard in Bachanike and 9th and 10th standards at Pre- University Government College, Mundgod. Every day, she used to come to college in Government bus from Majjigere to Mundgod. While she was studying in 8th standard accused No.1, who is a resident of the same village, used to trouble her by saying that she should love him, but she reprimanded him. Since then he was not troubling her.
6. However, on 07.08.2014, while she was walking on her way to college at 10.30 a.m near Ishappan tank, all the accused persons approached her, accused No.2 Ramesh, snatched her umbrella and accused No.3 6 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 Manjunath snatched her school bag. Accused No.1 caught hold of her mouth with his right hand and caught hold of both her hands with his left hand and pushed her into the forest and tied her to a eucalyptus tree with an ivy(ಬ ). When she tried to free herself, they tied her hands also with the same ivy(ಬ ). When she tried to shout, accused No.1 gagged her mouth with towel/ kerchief.
7. Accused No.1 said that she should love him and listen to him. When she shook her head, accused No.1 removed the towel/kerchief and directed her to speak. He forced her to say whatever he wanted and recorded the said conversation on his cell phone. He held a knife to her neck and told her not to disclose these facts to anyone and thinking that he may leave her, she repeated whatever he wanted. However, saying that if she is left alone, she should not be available and she should learn a lesson, accused No.1 removed the ties, forced her to lay on the ground and committed rape on her by lifting her skirt, removing her panty and inserted his penis into her vagina. Even though she resisted, accused No.1 committed penetrative sexual 7 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 intercourse for 10 minutes. When he was raping her, accused Nos.2 and 3 were guarding.
8. After that she put her clothes on and again accused No.1 gave threat not to disclose this fact to anyone. Again, accused No.1 tied her to the tree. In the meanwhile, accused No.1 received a call from someone and while he was attending the said call, using the said opportunity, she ran away. Accused Nos.2 and 3 were trying to catch her, but accused No.1 told them to leave her as they can find her later. She went home and locked herself inside her room. Her grandmother made her open the door and enquired as to what happened. She narrated the incident to her. Her grandmother gave her a bath. They informed her uncle CW-13 Manjunath Karuvinakoppa over phone. At 6.00 pm, when her father returned home, she and the mother of the prosecutrix were informed about the incident and hence the complaint.
9. Based on the complaint, the concerned police have registered the case in Cr.No.196/2014 (though in the complaint, endorsement with regard to registering the case in Cr.No.196/2014 is not for coming) and transmitted the 8 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 FIR to the Court. The grandmother of prosecutrix (PW-6) has produced the clothes of the prosecutrix which she wear at the time of the incident and the investigating officer has seized the same through Mahazar. He has sent the prosecutrix to the hospital for medical examination. On the same day, accused Nos. 1 to 3 were produced before the investigating officer and he has arrested them and recorded the voluntary statement of accused No.1 and has sent accused Nos.1 to 3 to the hospital for medical examination and after the medical examination, he collected their clothes. The investigating officer has proceeded to the spot and drawn spot Mahazar as pointed out by the prosecutrix and recovered the Ivy with which the prosecutrix was allegedly tied to the tree.
10. Based on the voluntary statement of accused No.1, a knife, handkerchief and cell phone belonging to accused No.1 were seized through Mahazar. The investigating officer has also recorded the voice sample of the accused No.1. He has also collected the voice sample of the prosecutrix as per mahazar at Ex.P.5. He transferred the voice sample to his laptop and copied it on CDs. He has also transferred the voice of accused No.1 and the 9 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 prosecutrix recorded on the cell phone of accused No.1 on the laptop and copied it on a CD. He has collected the samples from the medical officer. The investigating officer has sent all the samples to FSL for examination by the experts. He has also collected the cumulative record of prosecutrix from her school. After concluding the investigation, the investigating officer has filed charge sheet to the Court, awaiting the chemical report.
11. Accused have pleaded not guilty to the charges levelled against them and claimed trial.
12. In order to prove the allegation against the accused persons, the prosecution has relied upon the testimony of PWs-1 to 13, Exs.P1 to 34, and MOs 1 to 55.
13. During the course of their statements under Section 313 of Cr.P.C, the accused have denied the incriminating evidence led by the prosecution.
14. Accused have not led any defence evidence.
15. The trial Court accepted the case of the prosecution and convicted accused No.1 for the offences 10 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 punishable under Sections 366, 342, 376, 506 of IPC and Sections 4 of POCSO Act.
16. Accused Nos.2 and 3 are convicted for offences punishable under sections 366-A, 342, 506 r/w Section 506 of IPC and section 4 r/w Section 17 of POCSO Act.
17. The trial Court has sentenced accused Nos.1 to 3 as detailed in the order.
18. Being aggrieved by the impugned judgment and order, accused No.1 has filed the appeal, contending that the same is not based on the evidence placed on record and is perverse and as such it is not sustainable. The trial Court has ignored the inconsistencies in the prosecution case and the admissions given by the witnesses are contrary to it. The trial Court has also not taken into consideration the defence set up by the accused. The medical evidence is inconsistent with the prosecution case, the opinion of the medical officer is contrary to the injuries sustained by the prosecutrix. The present complaint is an outcome of love affair between the prosecutrix and accused No.1 and in order to punish accused No.1, a false complaint is filed. The delay itself indicate that after much discussion, a false 11 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 complaint is filed. The trial Court has failed to appreciate the oral and documentary evidence on record in right perspective, and as such the impugned judgment is perverse and seeks for setting aside the same.
19. In support of his arguments, learned counsel, accused No.1 has relied upon the following decisions.
(i) P. Yuvaprakash Vs State Rep by Inspector of Police. (P. Yuvaprakash)1
(ii) Madan Mohan Singh And Ors Vs. Rajni Kant and Anr. (Madan Mohan Singh And Ors) 2
(iii) The State Karnataka Vs Manjunath Shankrappa Vaddarkal. (Manjunath Shankrappa Vaddarkal ) 3
(iv) The State Karnataka Vs Anjini S/o Vaddara Ramesh. (Anjini S/o Vaddara Ramesh) 4
(v) Babajan Modinsab Hati Vs The State Karnataka. (Babajan Modinsab Hati)5
(vi) The State Karnataka Vs Santosh S/o Basappa Talawar. (Santosh S/o Basappa Talawar) 6
(vii) Basavaraj alias Basavantrao Vs The State Karnataka. (Basavaraj alias Basavantrao)7
(viii) Sri G S Venkatesh Vs The State Karnataka.
(Sri G S Venkatesh)8 1 2023 SCC OnLine SC 846 2 AIR 2010 SUPREME COURT 2933 3 Criminal Appeal No.100248/ 2019 4 Criminal Appeal No.100028/ 2019 5 Criminal Appeal No.100074/ 2019 6 Criminal Appeal No.100061/ 2018 7 Criminal Appeal No.200020/ 2019 12 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020
(ix) Hazrat Deen Vs State of UP and anr.(Hazrat Deen )9
(x) Public Prosecutor Vs. K. Jalayya. (K. Jalayya)10
(xi) Sashi Kumar Vs State of HP. (Sashi Kumar)11
(xii) Prahlad Vs State of Rajasthan. (Prahlad)12
(xiii) Nagaraj Urf Nagappa Vs The state of Karnataka. (Nagaraj Urf Nagappa)13
20. Accused Nos.2 and 3 have challenged the judgment and order stating that the entire allegations are against accused No.1. Even though it is alleged that accused Nos.2 and 3 snatched the bag and umbrella belonging to the prosecutrix, the same are not recovered. Therefore, the said allegations are not established. Only to make the allegations against accused No.1 feasible, accused Nos.2 and 3 are implicated, as though they helped accused No.1. It is a simple case of love affair between prosecutrix and accused No.1 and it is blown out of proportion and pray to allow the appeal and acquit them.
8 Criminal Appeal No.845/2017 9 2022 LiveLaw (SC) 134.
10AIR 1954 MADRAS 303 11 2023 CRI. L. J. 4301 12 AIR 2018 SC (SUPP) 2586 13 Criminal Appeal No.100031/ 2020 13 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020
21. On the other hand, learned High Court government pleader has supported the impugned judgment and order and Pray to dismiss the appeals.
22. Heard arguments of both sides and perused the record.
23. Thus it is the definite case of the prosecution that at the time of incident prosecutrix was aged about 16 years and was studying in 9th standard. In the complaint, the prosecutrix has stated that while she was studying in 8th standard accused No.1 was following her and insisting her to love him, but after she reprimanded him, he stopped following her. However, during the course of evidence, she has given a total go by to this and stated that she knew accused Nos.1 to 3 as they were also residents of Majjigere. However, during the course of the cross examination of PW-1, the accused persons have taken a defence that the prosecutrix and accused No.1 were in love and as accused Nos.2 and 3 were helping them, they have been falsely implicated at the instant of her father. The accused persons have also taken up a defence that there was political rivalry between the father of prosecutrix and 14 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 father of accused No.1 and it is also for a reason to falsely implication them.
24. In the light of the specific case of the prosecution that at the time of incident prosecutrix was below the age of 18 years and as such the provisions of POCSO act are attracted, the initial and heavy burden is on it to prove that the prosecutrix was a minor when the incident took place.
25. PW-5 Hema and PW-6 Neelamma are the mother and grandmother of the prosecutrix. Though the father and uncle of the prosecutrix are cited as witnesses, they are not examined. Of course they and PW-5 and 6 are not witnesses to the incident. They came to know about the incident through prosecutrix and instrumental in filing complaint against the accused persons. In the light of the specific defence taken by the accused persons, their examination would have thrown light and supported the prosecution case and also clarified the defense taken by the accused persons.
26. During the course of evidence, the prosecutrix who is examined as PW-1, has given her date of birth as 15 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 06.02.1999. In the complaint, the prosecution has stated that she studied 8th standard Bachanike and she studied 9th and 10th standard at Government pre-university College Mundgod.
27. In order to prove the age of the prosecutrix, the prosecution has relied upon the testimony of PW-11 Kalyan Shetty who was working as Deputy Principal in Government Pre-University College, Mundgod. He has deposed that on 09.08.2014, the investigating officer requested him to provide the date of birth certificate of the prosecutrix. He verified the register number and issued the cumulative record of the prosecutrix as per Ex-24. In the school register, the date of birth of prosecutrix is noted as 06.02.1999. However, at the time of his evidence PW-11 has not brought the register No., based on which he has deposed about the date of birth of the prosecutrix. During his cross examination, he has deposed that on the basis of transfer certificate issued by the school where the prosecutor studied 7th standard, the date of birth of the prosecutrix is entered in the register.
16 Crl.A.No.100335/2020c/w Crl.A.No.100334/2020
28. As noted earlier, the prosecutrix has not taken admission to the Government Pre-university College at Mundgod for 8th standard. After completing 7th standard, she got admitted to 8th standard at Bachanike. For 9th standard, she took admission at the Government Pre- University College Mundgod. Therefore, necessarily at the time of admission, she might have brought the transfer certificate from the school at Bachanike and whatever information that is entered into the register must be from the school at Bachanike. Therefore, the testimony of PW-11 that the information in the register is entered on the basis of transfer certificate received from the school where prosecuting studied 7th standard is incorrect and the witness brought the register with him, he could have come to know about this fact.
29. Moreover as admitted by PW-11, Ex.P-24 is not a document in the prescribed format to prove the date of birth. It is a cumulative record. It is nothing but progress report of the student, and it would be sent to the parent for their knowing the progress of the student after the entry of 9th standard. When it is handed over to the student, it is not supposed to come back to the school. It is supposed to 17 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 be kept with the parents. In fact, as deposed by PW-11, Ex-P-24 bears the signature of the mother of the prosecutrix. It indicates that after the requisite information is filled, it was sent to the parent and supposed to be with them. Neither PW-11 nor the investigating officer have clarified as to how the cumulative record came back to the school, and why PW-11 has given it to the investigating officer, when he is supposed to issue a certificate in the prescribed format maintained with the school/College, specifying the date of birth of the student and the fact that the said information is forthcoming from the register maintained in the school/College.
30. It is also relevant to note that PW-7 Dr G.B.Laxmi Devi is the medical officer, who examined the prosecutrix and issued the medical report as Ex.P-14. During the course of her evidence, she has specifically stated that at the time of her examination, her birth certificate was produced for her perusal, and in the said document, her date of birth was mentioned as 06.02.1999. It is not made clear, whether the said certificate was produced by the prosecutrix or her guardian who accompanied her to the hospital. It is also not clear 18 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 whether the birth certificate referred to by PW-7 is Ex-P-24 or it was a birth certificate issued by the Registrar of the births and death. If it is same as Ex.P-24, then it might not have been issued by PW-11 Kalyan Shetty. If it is not Ex.P- 24, then it must be some other birth certificate collected from the concerned authority.
31. If the information of her birth is registered with the concerned authority, then the investigating officer had no impediment to collect a certified copy from the said authority. It would have been a more authentic document. According to PW-11 Kalyan Shetty he has issued Ex.P-24 on 09.08.2014. PW-12 Hussain Khan, who is the investigating officer has also deposed that he has collected Ex.P-24 on 09.0.8.2014. However, he has stated that he collected the said document from Majjigere School. Admittedly Ex.P-24 is not issued by the Majjigere school authority. On the other hand, it is issued by the Government Pre University College, Mundgod. It is not clear whether the investigating officer has also collected a certificate from Majjigere school or by slip of tongue he stated that Ex.P-24 is received from Majjigere school. The prosecution case is shrouded with mystery, so far as the 19 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 issue of birth certificate of the prosecutrix is concerned. When the birth certificate in question is not issued in the prescribed format and according to PW-11, it is not clear whether the said information was received from the transfer certificate issued by the school where the prosecutrix studied 7th standard, while in fact, she was admitted to Government Pre-University College Mundgod for 9th standard and necessarily she might have produced the transfer certificate issued by the school, where she studied 8th standard. Moreover, when the original register is not produced, the prosecution has failed to prove that the date of birth of prosecutrix is 06.02.1999 and that as on the date of the incident, she was 16 years of age.
32. Accused have taken a Defence that the prosecutrix was in love with accused No.1 and accused Nos.2 and 3 only facilitated and help them. In fact, some photographs of a accused No.1 and prosecutrix are available in the trial Court record. However, they are not marked. In the light of the fact that the prosecutrix has denied the suggestions made by the defence and the accused have not led any defence evidence, they have failed to prove the same. 20 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020
33. Now coming to the actual incident, according to the prosecutrix on 07.08.2014, while she was proceeding to school, accused Nos.1 to 3 suddenly intercepted her. Accused Nos.2 and 3 took away her umbrella and school bag and accused No.1 covered her mouth with his right hand and caught hold of her, both hands with his left hand and pushed her into the forest. She was tied to a tree with the help of ivy(ಬ ). At the point of knife, accused No.1 forced her to love him, and though she repeated what he said and accused No.1 recorded the conversation in his cell phone, he committed rape on her saying that otherwise she would not learn a lesson. Accused Nos.2 and 3 guarded them when accused No.1 raped her. Again, she was tied to the tree and when the attention of accused n.1 was diverted by a phone call, she managed to run away.
34. During her cross examination, the prosecutrix has deposed that all along she resisted the assault by accused No.1 and scratched his face with her nails, but she do not know whether he sustain any injuries. She has specifically stated that the accused No.1 removed her underwear and committed rape by inserting his penis into 21 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 her vagina. Accused No.1 committed rape on her for a period of 10 minutes. However, the medical examination report of the prosecutrix is not consistent with the alleged assault on her.
35. As already noted, Ex.P-14 is the medical examination report of the prosecutrix. According to this, the prosecutrix, the complained of pain in the neck and shoulders, aberration over inner aspect of upper arm, inner aspect of thighs and lower limb. However, no injuries were found on her back and back portion of her legs. If the accused No.1 raped the prosecutrix in the forest for a period of 10 minutes and all along she resisted the same, the injury sustained by her would have been far more severe and would have covered the back portion of her body. So far as the injuries to her genitals, she has sustained only an aberration measuring 1/2 x 1/2 cm on the lower posterior fourchette with tenderness. Other than this, she has not sustained any other injuries. In fact, during her cross examination, PW-7 has stated that if there is any tear in the Hyman the doctor would note the same in the report, and in the present case, she has only noted the aberration on the lower part of the Hymen. 22 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020
36. It is pertinent to note that according to the prosecutrix, after coming to know about the incident, her grandmother i.e., PW-6 gave her a bath and on the next day, also she took a bath before going to the police to file the complaint. However, when the prosecutrix was produced before the medical officer for her medical examination, on her own her guardian has produced her clothes, which she was wearing at the time of incident before the medical officer. The prosecutrix as well as the guardian have also taken the birth certificate of the prosecutrix and showed it to the medical officer.
37. If really the prosecutrix and her guardian were aware of the significance of preserving the clothes and also convincing the medical officer that the prosecutrix is a minor, they would also have been aware of the fact that in sexual assault cases, medical examination at the earliest is important and also it is not advisable for the prosecutrix to take a bath before the medical examination.
38. If not, the direction to produce the cloth of the prosecutrix and also birth certificate was by the investigating officer or the father of the prosecutrix who 23 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 wanted to set score with accused No.1 due to some political difference or that he wanted the relationship between accused No.1 and the prosecutrix to end. At least the prosecution or the investigating officer ought to have come up with an explanation for the same. In the light of the fact that the injury sustained by the prosecutrix are not consistent with the allegations made against accused No.1, it creates doubt as to the velocity the case of the prosecution and the severity of the allegations made against accused No.1.
39. There is delay in filing the complaint. Even though the incident had taken place on 07.08.2014 and by 5.00 pm, PW-6 Nilavva the grandmother of prosecutrix came to know about it, the complaint is filed on the next day around 12:30 pm. In the complaint as well as in the evidence of the prosecutrix, the reason for the delay is not forth coming. The prosecution has not explained the delay. However, during the course of her statement under Section 164 Cr.P.C, given before the Judicial Magistrate, the prosecutrix has stated that after coming to know about the incident, her uncle went to the house of accused No.1, and informed his mother about the same and at that time, 24 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 father of accused No.1 was not present in the house. After he returned home, both of them came to the house of prosecutrix and when the parents of the prosecutrix informed them that a complaint would be filed, they went out of the house, saying that they are at liberty to do so. This fact is not deposed by the prosecutrix and her mother and grandmother.
40. Another piece of evidence relied by the prosecution is that the accused No.1 has recorded the conversation between him and the prosecutrix in the forest when she was tied to the tree. PW-2 Basavaraj is the witness to the said recording, which was copied on the computer and converted into CD. He has deposed that the said conversation was extended to 1 hour 42 minutes, and the investigating officer has transliterated the said conversation in the Mahazar. However the prosecutrix has deposited that the conversation which the accused No.1 forced her to make admitting her love to him and recorded on his cell phone extend to 2-3 minutes. Even though the investigating officer has recorded in writing the conversation which he had with the prosecutrix at Ex.P.-5 and accused No.1, as Ex.P-10 for the purpose of collecting 25 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 their voice sample, he could have done the same with regard to the conversation in the cell phone of accused No.1 which he had allegedly recorded by forcing the prosecutrix to admit his love. It would have given a fair chance to the accused to demonstrate what actually transpired and whether there was any, love affair between the prosecutrix and accused No.1. In fact, as per Ex.P-10 accused No.1 was knowing the prosecutrix since one and half years.
41. Moreover, the FSL reports also creates doubt as to the veracity of the prosecution case. As per Ex.P-15, FSL report, blood stains were found on the shirt, skirt, petticoat, and underwear of the prosecutrix, but it was not sufficient for serology exam. Since prosecutrix has reached puberty, it is natural for her clothes to contain blood strains. Ex.P-15 also state that seminal stains were found on the T-shirt, shorts, buniyan, and jeans pant of accused No.1 which is quite natural. However, no seminal strains were found on the clothes of the prosecutrix. Similarly, presence of saliva was found on the T-shirt of accused No.1, which is natural, but no saliva was found on the clothes of the prosecutrix.
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42. Similarly, the FSL report with regard to the hair of the prosecutrix and also the accused No.1 is not favouring the prosecution.
43. According to the investigating officer, he has collected the CDR of the accused No.1 to show that at the time of incident, he was present within the tower location of Majjigere. Having regard to the fact that prosecutrix and all the accused persons are residents of the same village, it is quite natural that he would come under the tower location of Majjigere. Learned counsel for accused No.1 submitted that prosecutrix was using cell number 9632132072 and she was in contact with the accused No.1 on 5th and 6th August. However, the prosecutrix has denied the said suggestion. The investigation officer has not conducted any investigation on this aspect to present a fair picture of the prosecution case.
44. Moreover so far as accused Nos.2 and 3 are concerned the allegations against them are that at the first instance they snatched the umbrella and school bag of the prosecutrix and when accused No.1 forced the prosecutrix to speak and record the same on his cell phone and also 27 Crl.A.No.100335/2020 c/w Crl.A.No.100334/2020 raped her, they stood guard. Except the interested testimony of the prosecutrix, there is no evidence against accused Nos. 2 and 3. The least the investigating officer could have done was to recover the umbrella and school bag of the prosecutrix at the instance of accused Nos.2 and
3. Having regard to the severity of the allegations made and the punishment which is prescribed for the alleged offences and also the punishment imposed by the trial court, the standard of evidence required to be adduced would have been of far more higher stand than what is adduced by the prosecution. The prosecution case is inherently not reliable. The investigating officer has not conducted the investigation impartially. The trial court also, without examining the entire evidence in right perspective has fell into error in convicting the accused persons and sentencing them for 3 months to 10 years. The findings of the trial court is perverse as such liable to be interfered with and accordingly the following;
ORDER
(i) Crl.A.No.100335/2020 filed by accused No.1, Crl.A.No.100334/2020 filed by accused Nos.2 and 3 are allowed.
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(ii) The impugned judgment and order dated 12.10.2020 in Spl.C.No.38/2014 is set aside.
(iii) Consequently, accused Nos.1 to 3 are acquitted of all the charges.
(iv) Accused No.1 shall be set at free forthwith, if his presence is not required in any other case.
(v) Send intimation to the jailer immediately. (vi) The bail bonds of accused Nos. 2 and 3
stand cancelled.
(vii) Send a copy of this order to the trial Court forthwith.
Sd/-
(J.M.KHAZI) JUDGE ASN