Karnataka High Court
The State Of Karnataka vs Ramanji on 9 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1
Crl.A.No.795/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No. 795 OF 2018
BETWEEN:
The State of Karnataka
By Mahila Police
Tumakuru
Represented by
State Public Prosecutor
High Court Building
Bengaluru. ... Appellant
(By Shri. B.N. Jagadeesha, Additional SPP)
AND:
1. Sri. Ramanji
S/o. Rajanna
Aged about 27 Years,
R/o Maraluru
Tumakuru District.
2. Sri. R. Chandrashekharaiah
S/o. Rangappa
Aged about 46 years
Naik
Presently R/at C/o. Thimmappa
Near Srirama Temple
Grama Devatha Bheedhi
2
Crl.A.No.795/2018
Maraluru, Tumakuru
Tumakuru District. ... Respondents
(By Smt. K.M. Archana, Advocate / Amicus Curiae for R1
Shri. S. Javeed, Advocate / Amicus Curiae for R2)
This Criminal Appeal filed under Section 378(1) and (3)
of Cr.P.C. praying to grant leave to file an appeal against the
Judgment and order of acquittal passed by the III Additional
District and Sessions Judge, Tu makuru in Spl.C.No.380/2017
dated 12.09.2017 thereby acquitting the respondent/accused
for the offence punishable under section 376 of IPC and
Sections 4 and 6 of POCSO Act.
This Criminal Appeal coming on for Further arguments
having been heard through physical hearing/video Conference
and reserved for Judgment on 20.12.2023, coming on for
pronouncement, this day, Umesh M Adiga J., delivered the
following:
JUDGMENT
This is State 's appeal challenging the judgment dated 12.09.2017 passed by the learned III Additional District and Sessions Judge, Tumakuru,(for short 'Trial Court') in Special case No.380/2017. The accused has been charge sheeted for the offence punishable under Section 376 of IPC and Section 4 and 6 of Protection of Children from Sexual Offences (for short 'POCSO Act').
2. We refer to the parties as their rank before the Trial Court.
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3. It is the case of the prosecution that victim girl - PW-8 is the daughter of PW-1. It appears wife of PW-1 died in an accident, thereafter, PW-1 - Sri. R. Chandrashekariah has been residing with his son and daughter in Maraluru of Tumakuru. PW-1 had been serving as a teacher in Primary School at Kodihatti Village of Gubbi Taluk. Everyday he was travelling from Maraluru to his place of work. Victim girl, during 2017, was studying in IX Standard in Empress School at Tumakuru. She use to go to school in bus.
4. On 20.03.2017, PW-1 received phone call from Child Welfare Committee (hereinafter for short 'CWC') of Tumakuru District, asking him to visit Child Care Centre, Sadashivanagara, Tumakuru. Accordingly, he had been to Child Care Centre. It was told to him that, victim girl was pregnant and she did not disclose proper information about the person, who was responsible for her pregnancy. Accordingly, PW-1 was asked to ascertain the facts from PW-8. On enquiry by 4 Crl.A.No.795/2018 PW-1, PW-8 informed that, accused of this case was responsible for her pregnancy. Thereafter, PW-1 has filed complaint to Women Police Station, Tumakuru as per Ex.P1. On the basis of the said complaint, Police registered a case in Crime No.22/2017 for the offences punishable under Section 376 of IPC and Sections 4 and 6 of POCSO Act as per Ex.P15.
5. PW-9 - Smt. Nirmala (PSI), Women Police Station and PW-10 - Smt. Parvathamma S (PI), Women Police Station, investigated the case. On conclusion of the investigation, submitted the charge sheet against the accused for the offences punishable under Section 376 of IPC and Sections 4 and 6 of POCSO Act, before Special Court (for short herein after referred to as 'Trial Court'). The learned Session Judge took cognizance of the offence and registered Special case.No.380/2017 and secured the presence of the accused. Accused was in judicial custody. The learned Session Judge supplied copy of charge sheet and enclosures to the accused. The learned 5 Crl.A.No.795/2018 Sessions Judge heard the accused and framed the charges for the aforesaid offences. The accused pleaded not guilty and claimed to be tried.
6. In an attempt to prove its case, prosecution has examined PWs-1 to 10; it got marked Exs.P1 to P17 and closed its evidence. The accused was examined under Section 313 of Cr.P.C. and his answers were recorded. Accused did not lead defence evidence.
7. The learned Trial Judge heard the arguments of both side and framed one point for determination. On appreciation of the evidence on record, the learned Trial Judge answered the said point in the 'Negative' and acquitted the accused of the charges levelled against him by the impugned judgment dated 12.09.2017, same is challenged in the present appeal.
8. We have heard the arguments.
The learned Additional State Public Prosecutor on behalf of the State vehemently contended that PW-1 in 6 Crl.A.No.795/2018 his evidence has stated about the incident. PW-8, who is a victim of the incident, though turned hostile before the Court, has stated about the incident before the Police as well as before the Magistrate while recording her statement under Section 164 (5) of Cr.P.C. In Ex.P1, as per information of PW-8, PW-1 has given the complaint alleging that accused had committed offences. Investigating Officer, collected blood sample of child of PW-8 and accused and sent for DNA Test. The Scientific Officer after examining the materials sent to him, gave certificate stating that accused is the biological father of the child born to PW-8. The said report is conclusive proof to hold that accused had committed crime against the minor, who was aged about 14 years at the time of incident.
9. The learned Additional State Public Prosecutor has further submitted that the Investigating Officer secured Ex.P6 from the School, wherein the victim had studied. To prove the said certificate, prosecution 7 Crl.A.No.795/2018 examined PW-5, who was in charge Head Master of Empress High School on the date of issue of Ex.P6. It proves the date of birth of victim as 22.02.2001. The said certificate is not seriously challenged. As per Section 94 of Juvenile Justice Act, 2015 (hereinafter for short 'JJ Act, 2015'), the said document is acceptable to prove age of the victim as minor. PWs-9 and 10 are the investigating officer, who have stated about the investigation done by them. There are no reasons to disbelieve their evidence. Other witnesses are not material witnesses. Victim girl as well as PW-1 for the reasons best known to them did not support case of the prosecution. That is not the reason for acquittal of the accused. Scientific evidence produced by the prosecution conclusively proved that the accused had committed the said crime. The learned Trial Judge did not consider the evidence on record properly. Without proper application of mind, the learned Trial Judge acquitted the accused. Therefore, prayed to interfere with the said finding and reverse the judgment.
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10. The learned Amicus Curiae for accused/respondent No.1 submits that all the witnesses including victim have turned hostile to the case of prosecution. There is no sufficient evidence to prove that blood sample of the daughter of the victim as well as of accused taken in accordance with law. The Scientific Officer, who has issued Ex.P17, is not examined and it was marked through Investigating Officer. Therefore, Ex.P17 is not proved. Mere production of Ex.P17 is not sufficient. The victim/ PW-8 did not give any evidence against the accused to believe that accused was responsible for her pregnancy or accused had forceful sexual intercourse with her. In view of these reasons, mere production of Ex.P17 is not sufficient to convict the accused for such a serious offence. Therefore, prayed to acquit the accused.
11. Following points emerge for our determination:
9Crl.A.No.795/2018
i. Whether prosecution proved beyond reasonable doubt that about an year prior to 19.04.2017 at Maraluru in Tumakuru District, the accused persuaded minor victim girl and had repeated forceful sexual intercourse with her against her wish and due to the same she became pregnant and delivered female baby on 19.04.2017 at 10.20 a.m. in District Hospital, Tumakuru and thereby accused has committed an offence punishable under Section 376 of IPC? ii. Whether prosecution proved beyond reasonable doubt that about an year prior to 19.04.2017 at Maraluru in Tumakuru District, the accused knowing that the victim girl was a very innocent minor and unaware about sexual acts, persuaded her when she was alone at home and had aggravated repeated forceful sexual intercourse with her against her wish and due to the same she became pregnant and delivered female baby on 19.04.2017 at 10.20 a.m. in District Hospital, Tumakuru and thereby accused has committed an offence punishable under Sections 6 of the POCSO Act?
10Crl.A.No.795/2018
iii. Whether the findings of the learned Trial Judge is perverse, arbitrary and against the law and interference by this court is required?
iv. What order
12. In this case, PW-1 is the father of the PW- 8/victim girl. In his evidence, he has stated that his daughter aged about 14 years was studying in Empress School at Tumakuru. On 20.03.2017, he received a call from CWC, Tumakuru, intimating him that he has to visit said Committee Office since his daughter was in the custody of the Committee. He went to the Committee and on enquiry, he got information from the Committee that his daughter was pregnant and accused was responsible for her pregnancy. Thereafter, he lodged the complaint as per Ex.P1. Police came to his house and draw mahazar as per Ex.P2 in the presence of one Thimmappa and Babu. He has stated that his daughter was born on 22.02.2001.
11Crl.A.No.795/2018
13. In his cross-examination, PW-1 has stated that birth of his daughter was informed to the concerned officer maintaining Birth Register at Mallasandra. He has not given the copy of the Birth Certificate to the Police. His daughter has not complained to him that accused raped her. On the basis of information given by CWC, he reported to Police that accused was responsible for pregnancy of his daughter.
14. PW-1 in his evidence does not support the case of the prosecution. He has not stated that his daughter told him that accused had raped her repeatedly, when she was alone at home. It is pertinent to note that victim girl was aged 14 years at the time of the incident. It is difficult to believe that he had any idea that his daughter was pregnant of eight months, when the complaint was lodged. It is also pertinent to note that PW-8 did not inform PW-1 about any symptoms of pregnancy to him; on the contrary, she informed to CWC that some on committed sexual acts with her. It is also 12 Crl.A.No.795/2018 worth to note that the concerned police did not produce the accused before CWC in the presence of victim and got identified that he was responsible for the incident. It appears that PW-1 has not revealed full details before the Court. The prosecution did not treat PW-1 as hostile witness and cross-examined him to bring out the truth from him. Therefore, the evidence of PW-1 does not help the prosecution to prove the guilt of accused.
15. The material and star witness in this case is PW-8 i.e. Victim girl. In her evidence, she has completely turned hostile to the case of prosecution. Even she has stated that she does not know as to who was responsible for her pregnancy and she did not know, who had sexual intercourse with her. She has stated that someone might have had sexual intercourse with her without her knowledge. The prosecution treated her as a hostile witness and cross-examined her. In the entire cross-examination, nothing was brought out to show that accused was responsible for the incident. 13 Crl.A.No.795/2018
16. According to the case of prosecution, i.e. her statement recorded by the Magistrate, she was unaware about the good and bad touch. Prior to approaching the helpline phone Number, even she had no idea about the sex. On one day, in the month of February, a program was held in Siddaganga College and she attended the said program, wherein an awareness was created regarding sexual abuse of a minor children. During the said awareness program, she came to know about the sexual abuse of a child. After attending programme she believed that she was also victim of sexual abuse. She called helpline Number 1098 and intimated about sexual abuse on her. Thereafter members of CWC contacted her and took her to the government hospital, wherein it was ascertained that she was pregnant. On going through the said statement, it appears that the victim was very innocent and even she had no idea about the sexual abuse. Under these circumstances, it cannot be held that PW-8 was deposing falsely before the Court that she was unaware as to who had committed sexual acts with her. 14 Crl.A.No.795/2018 Of course, in her cross-examination by the prosecution, she had denied the said facts of giving statement before the Magistrate as per Ex.P13. Evidence of PW-8 is also not helpful to the prosecution to prove guilt of accused.
17. PWs-2, 3, 4 are circumstantial witnesses, who have seen accused and PW-8 wandering together. However, during the evidence, they have turned hostile and not supported the case of prosecution.
18. PW-5 was incharge Head Master of Empress School, who had issued Certificate containing the date of birth of victim as 22.02.2001. In his cross-examination, he has stated that he has no idea as to which document was given at the time of entering the date of birth of victim in the School Register. It is pertinent to note that the concerned register or relevant page of the such register, containing the date of birth of victim, is not produced to corroborate the Ex.P6. Ex.P6 is not a copy of any records. PW-5 in his evidence has not stated that where the said particulars were entered. He has stated 15 Crl.A.No.795/2018 that Police sent a requisition letter calling upon him to give the certificate, accordingly, he gave the certificate as per Ex.P6. It indicates that it is not an authenticated record.
19. PW-1 in his evidence has stated that information of birth of his daughter was intimated to concerned officer, who maintains registration of birth and death records. However, he did not give the copy of the same to the Police. It appears that even Police did not obtain certificate from the concerned authority to prove the age of the victim girl. Even the prosecution did not secure Register maintained in the School to prove Ex.P6. Therefore, serious doubt arises regarding correctness of date of birth mentioned in Ex.P6 and prosecution has not proved beyond reasonable doubt about the age of the victim girl.
20. As observed above, the main witness in this case is PW-8, who is the victim of the incident. In her evidence before the Court, she has completely turned 16 Crl.A.No.795/2018 hostile to the case of prosecution. Her statement was recorded by the learned Magistrate at Tumakuru. While recording her statement under Section 164 of Cr.P.C., she has stated that a person by name Ramanji, who was friend of her maternal uncle, had raped her and as a result of which she became pregnant. She contacted helpline phone number 1098 and members of CWC approached her and they took her to the hospital, wherein on clinical examination, it was found that she was pregnant. This fact was not stated by her while recording her evidence before this court, in the presence of accused. Even she has denied statement given before the Magistrate as per Ex.P13 as well as statement given before the Police as per Ex.P14. As already discussed above, there is nothing on record to show that she was won over by the accused or for any reasons she was not supporting the case of prosecution or giving false evidence before the Court. Therefore, the only witness in this case, who could throw light on the case of the 17 Crl.A.No.795/2018 prosecution, has turned hostile and not supported the case of prosecution.
21. The next important witness is PW-1, who is father of victim. Though he has filed complaint against accused but during the course of the evidence, he has not stated much regarding the incident taken place so also involvement of the accused in the case.
22. The learned Additional State Public Prosecutor relies on DNA report produced at Ex.P17. In Ex.P17, the expert opines that accused is biological father of daughter of PW-8. The learned Additional State public Prosecutor further submits that in view of the DNA report, that accused is biological father of daughter of PW-8. It conclusively proves that accused had committed the said offence and due to the rape committed by the accused the victim girl became pregnant and delivered baby girl.
The submission of learned Additional SPP is not acceptable. It is pertinent to note that Ex.P17 is an 18 Crl.A.No.795/2018 expert opinion. Only on the basis of such expert opinion, the Court cannot come to the conclusion that the accused had committed the said crime. If PW-8 had supported the case of prosecution and identified the accused that he had committed rape on her repeatedly as alleged in her previous statement as per Ex.P13 and Ex.P14, then Ex.P17 would have helped the prosecution to prove that the evidence of PW-8 is reliable. However, in this case there is no evidence at all or there is no iota of evidence to believe that accused had committed the crime against the victim girl. When such is the case, only on the basis of DNA report, the Court cannot jump to the conclusion that accused had committed rape on the victim girl and because of which she became pregnant. Therefore, Ex.P- 17 alone do not help the prosecution to prove that accused had committed the said crime.
23. In a similar facts of the case, in the case of Premjibhai, Bachubhai Khasiya vs. State of Gujarat 19 Crl.A.No.795/2018 and another1, the Division Bench of Gujarat High Court considering the 185th report of the Law Commission of India and also relying on the judgment of Hon'ble Supreme Court in the case of Kamti Devi & another v. Poshi Ram2. Similarly, relying on the decision in R. v. Watters (2000 All England Reporter 1469) it is held that:
"28. We appreciate the action on the part of the Investigating Police Officer to opt for collection of scientific evidence in form of DNA Report. DNA Report plays an important role and its need and usefulness cannot be underestimated. It is useful to any Investigating Police Officer to assess as to whether his investigation of a crime is on right track or not. It would save people from facing unwarranted prosecutions. But, when the question of appreciation of evidence of such report arises before a criminal Court, especially when such report is positive, it shall look for other evidence, particularly when such other evidence does not fall in line with the result in the positive DNA report or when such other evidence is in direct conflict with the opinion 1 2009 Cr.LJ 2888 2 (2001) 5 SCC 311 20 Crl.A.No.795/2018 expressed in such positive report. Such report can be used as corroborative evidence i.e. an evidence to substantiate other evidence. A positive DNA report cannot be the sole and conclusive evidence to record conviction in a criminal case. In the case on hand, considering the peculiar facts and circumstances and evidence on record, the positive DNA Report should not have been accepted by the trial Court in isolation, i.e. as sole piece of evidence to record the conviction". (emphasis is ours)
24. In this case, except the DNA report, there are no other reliable evidence on record, to s m girl because of which she became pregnant. Had victim girl, how that, accused had repeatedly committed rape on victim girl i.e., PW-8, supported the case of prosecution, things would be otherwise. In this case, in the absence of any other reliable evidence on record and only on the basis of expert evidence, the Court cannot record conviction against the accused.
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25. The learned trial Judge considered the evidence on record and rightly acquitted the accused. There are no reason to interfere in the said findings. It is true that learned trial Judge did not appreciate the evidence in detail, however, he came to the right conclusion on the basis that there are no reliable evidence on record and hence the said findings cannot be considered as perverse or arbitrary.
26. The learned counsel for Additional State Public Prosecutor in reply submits that in view of Section 29 of the POCSO Act, burden is on the accused to disprove the commission of said crime. He would submit that there is presumption as to certain offences, as per Section 29 of POCSO Act which reads that:
"Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of the Act, the Special Court shall presume that such person has committed an offence, unless the contrary is proved."
Prosecution by the evidence of PW-1 and report of DNA proved that accused /respondent No.1 had 22 Crl.A.No.795/2018 committed the offence punishable under Section 6 of POCSO Act. However, to rebut the evidence of prosecution accused has not lead any evidence. In the cross-examination also nothing is brought out to disbelieve expert opinion. Hence prosecution proved guilt of accused beyond reasonable doubt.
27. The submission of learned Additional State Public Prosecutor is not acceptable. In any criminal law, it is burden on the prosecution to prove the guilt of the accused beyond all reasonable doubt. When there is no prima facie case against accused and when evidence is absent, only on the basis of presumption of law, an accused shall not be convicted. In case, if the prosecution has made out a prima facie case and there are sufficient materials to believe that accused had committed the crime stated in Section 29 of the POCSO Act, then the burden shifts on the accused to disprove the said evidence led by the prosecution. Unfortunately, in this case, there is no evidence against the accused to 23 Crl.A.No.795/2018 believe or to hold that he had committed the offence punishable under Section 6 of the POCSO Act or Section 376 of the IPC. When there is no such evidence, there is no question of accepting the case of the prosecution or convicting the accused for such a grave offence. Therefore, the question of proving of innocence by the accused does not arise. The provision of Section 29 of the POCSO Act also does not help the prosecution to convict the accused for the alleged offences.
28. PW-6 is Medical Officer serving in District Hospital, Tumakuru. In her evidence, she has stated that on 17.03.2017, at about 11.05 a.m., CWC members brought a girl by name Pallavi and on clinical examination of the said girl, she found that victim girl was pregnant of 34 weeks and 4 days. The approximate date of delivery was assessed as 24.04.2017. PW-8 has also stated before the PW-6 that a person who used to come to repair the cable TV had raped her and she could not notice that she became pregnant. It is not in dispute 24 Crl.A.No.795/2018 that the victim girl had delivered baby girl and when she was taken to hospital by CWC, she was pregnant. Therefore, evidence of PW-6 do not help the prosecution to connect the accused with the guilt. Moreover, PW-8 herself did not support the case of prosecution and PW-6 on the basis of alleged information given by PW-8, had stated that accused had committed the offence. PW-6 is hearsay witness and her evidence do not help.
29. PW-7 is also Medical Officer of District Hospital Tumakuru. She has stated about delivery of baby girl by victim. This fact is not in serious dispute. Therefore, evidence of PW-7 do not help the case of prosecution to connect the accused with the guilt.
30. PWs-9 and 10 are investigating officers and both of them have stated about the investigation done by them. Since material witnesses have corroborated their evidence, the evidence of PWs-9 and 10 looses importance. Only on the basis of evidence of investigating officers, the accused cannot be convicted. 25 Crl.A.No.795/2018 For aforesaid said reasons, the evidence of PWs-6, 7, 9 and 10 do not help the case of prosecution to prove the guilt of the accused.
31. As already stated above, the learned Trial Judge on appreciating the evidence, has recorded his finding that guilt of the accused was not proved by the prosecution. The grounds of appeal are not sustainable. On the basis of assumption and presumptions, the Court cannot convict the accused for such a grave offence. Prosecution has failed to prove the guilt much less beyond reasonable doubt.
32. For above said discussions, we answer point Nos. 1 to 3 in the 'Negative'.
33. For the above said reason, we proceed to pass the following:
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ORDER
(i) Appeal is dismissed.
(ii) Impugned judgment passed by the learned III Additional District and Sessions Judge, Tumakuru in Special case No. 380 of 2017, dated 12.09.2017, is confirmed.
(iii) Office shall send back the Sessions Court records to trial court along with the copy of the judgment.
The Court, while acknowledging the services rendered by the learned Amicus Curiae Ms. Archana K.M. and Sri. S. Javeed, we direct the registry to pay an Honorarium of `6,000/- (Rupees Six Thousand only) each to the learned Amicus Curiae, for the service rendered by them.
Sd/-
JUDGE Sd/-
JUDGE AG