Karnataka High Court
State By Rural Police vs Suresh on 16 March, 2018
Author: R.B Budihal
Bench: R.B Budihal
Crl.A.No.805/2012
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL No.805 OF 2012
BETWEEN:
STATE BY RURAL POLICE,
CHITRADURGA.
... APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
AND:
SURESH,
S/O BASAVARAJAPPA,
AGED ABOUT 23 YEARS,
NAYAKA BY CASTE,
AUTO DRIVER,
R/O MALLAPURA,
GOLLARAHATTY,
CHITRADURGA TALUK-577501.
...RESPONDENT
(BY SRI R.B. DESHPANDE, ADVOCATE)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& 3 OF CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL
Crl.A.No.805/2012
2
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
12/4/2012 PASSED IN S.C. NO.35/2011 BY THE PRINCIPAL
SESSIONS JUDGE, CHITRADURGA-ACQUITTING THE ACCUSED
FOR THE OFFENCES P/U/S 366 & 376 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, K.S. MUDAGAL J, DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the order of acquittal dated 12.04.2012 passed by the Principal District & Sessions Judge, Chitradurga in S.C. No 35/2011, the State has preferred this appeal. By the impugned judgment and order the trial Court has acquitted the accused of the charges for the offences punishable under Section 366 (A) and 376 of Indian Penal Code.
2. Chitradurga Rural Police charge sheeted the accused in Crime No.180/2010 of their Police Station for the offences punishable under Section 366 (A), 376 Clause 2 (f) Indian Penal Code, on the basis of the complaint Ex.P.1 filed by P.W.1 Thimmanna the Paternal junior uncle of the victim girl (for confidentiality the victim girl referred to hereinafter as 'X').
Crl.A.No.805/20123
3. The gist of the said complaint is as follows:
On 06.04.2010 at 12 mid night, the accused has kidnapped 'X' aged 15 years from the house of his elder brother situated at Gollarahatti, Chitradurga Taluk, when she was sleeping with her mother P.W.2 and elder sister P.W.3, though they resisted he took away the girl. At that time himself and victim girl's father P.W.4 were at Kariyamma temple of their village on the occasion of on going village fare. After the incident, the mother of the victim rushed to the temple informed him and P.W.4 about the incident. 'X' and the accused are not traced.
4. On the basis of the said complaint the Police initiated investigation. As per prosecution, on 10.06.2010 i.e. after about two months, 'X' and accused appeared before the Police voluntarily. The Investigating Officer recorded the statement of 'X' wherein she said to be revealed that on 6.04.2010 at 7. p.m. she went to the house of the accused voluntarily and thereafter herself and accused went to Challakere and they took a house on rent. As per the Crl.A.No.805/2012 4 prosecution she stated before the Police on her first appearance before them that on 07.04.2010 the accused married her tying a mangalya and then they co-habited in the rented house as husband and wife. After recording such statement, Police conducted further investigation and charge sheeted the accused as aforesaid.
5. The Jurisdictional Magistrate took cognizance of the offence and committed the case to the Sessions Court. The trial Court on hearing both the sides framed charges against the accused for offences punishable under Section 366 and 376 of I.P.C. to the effect that the accused kidnapped 'X' aged below 16 years and committed rape on her.
6. The trial Court recorded the plea of the accused on the charges. He denied the charges and claimed trial. Therefore, trial is conducted. The prosecution in support of its case examined P.W.1 to P.W.17 and got marked Exs.P1 to P.13. The trial Court examined accused under Section 313 of Cr.P.C. He did not lead any defence evidence, but on his Crl.A.No.805/2012 5 behalf Ex.D.1 is marked by way of confrontation to P.W.11, 'X'.
7. The trial court after hearing the parties, by the impugned judgment and order acquitted the accused on the following grounds:
(i) The evidence of P.W.2-mother, P.W.3-sister of 'X' and P.W.11- 'X' does not inspire the confidence of the court that the accused kidnapped P.W.11;
(ii) The prosecution has failed to prove that the victim girl is below the age of 16 years;
(iii) The evidence of P.W.11 does not prove that the accused has committed rape against her.
8. Sri Vijaya Kumar Majage, learned Additional S.P.P reiterating the grounds of the appeal memo seeks to assail the impugned judgment and order on the following grounds:
(i) P.W.11, the victim girl has categorically stated that accused kidnapped her forcibly and committed raped her; Crl.A.No.805/2012 6
(ii) The trial Court committed error in disbelieving the evidence of prosecutrix;
(iii) The trial Court committed error in disbelieving the evidence of P.W.2 and P.W.3, the witnesses to the offence of kidnap on the ground of minor contradictions;
(iv) The trial Court committed error in disbelieving the evidence of P.W.8, the school teacher who has issued date of birth certificate Ex.P.5 and the evidence of P.Ws. 1 to 4 and P.W.11 and the doctor P.W.15 regarding the age of 'X';
(v) The trial Court should have seen that minor discrepancies are bound to occur in the ocular evidence of the witnesses due to gap of time between the date of the incident and their evidence before the Court.
9. As against that, Sri Dinesh Kumar Rao, learned counsel for the accused seeks to support the impugned judgment on the following grounds:
(i) The evidence of P.W.11 clearly shows that she had fallen in love with the accused and she prompted him to elope with her.Crl.A.No.805/2012
7
(ii) P.W.11 in her statement under section 164 Cr.P.C.
before the Magistrate, has clearly stated that she was in love with the accused and they married and then they co-habited;
(iii) The prosecution failed to prove that P.W.11 was below the age of 16 years;
(iv) The evidence on record clearly shows that there was no forcible kidnap or sexual cohabitation by the accused, therefore the trial court is justified in acquitting the accused;
(v) There is no manifest illegality in the trial court judgment, therefore in appeal this Court cannot reverse the findings of acquittal.
10. Having regard to the rival contentions, the point that arises for consideration of this court is "whether the state has made out the grounds for interference with the impugned judgment of acquittal?"
11. The larger bench of the Hon'ble Supreme Court in Prem Singh vs. State of Haryana (2013) 14 SCC 88 relying on its earlier larger judgment in Murugeshan vs. State Crl.A.No.805/2012 8 (2012) 10 SCC 383 has laid the guidelines for reversal of the judgment of acquittal by the Appellate Court as follows:
7. In a recent decision in Murugesan v. State this Court had the occasion to consider the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure, 1973. The summary of the relevant principles of law set out in para 21 of the judgment may be extracted herein under: (SCC pp. 393-94) "21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below : (SCC p.432) '42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on question of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. Crl.A.No.805/2012 9 are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(Emphasis supplied)
12. In Dilwar Singh and others vs. State of Haryana (2015) 1 SCC 737 the Hon'ble Supreme Court has held that the appellate court would not ordinarily Crl.A.No.805/2012 10 interfere with the order of acquittal merely because on evaluation of evidence, different plausible view may arise unless the trial court's approach is vitiated by manifest illegality.
13. Thus, it is clear that unless there are manifest illegalities in the order of acquittal this Court cannot in the appellate jurisdiction reverse the impugned order of acquittal. Even if two views are possible on appreciation of the evidence regarding the commission of crime, in such cases the view favourable to the accused is to be accepted. The Appellate Court cannot reverse the acquittal judgment of the trial Court merely because one probable view leans in favour of conviction.
14. In the light of such observations of the Apex Court this Court has to find out whether the trial Court has committed any manifest illegality in acquitting the respondent-accused in this case.
Crl.A.No.805/201211
REG. KIDNAPPING:
15. The first charge is that on 06.4.2012 at midnight 12' O clock the accused forcibly kidnapped 'X' from her house situated at Mallapura Gollarahatty Village by over powering her mother P.W.2. Therefore the court has to see whether the evidence on record shows that the accused forcibly took away 'X' from her parental house as alleged.
16. As rightly pointed by the Trial Court at earliest point of time, on their appearance before the Police P.W.11 'X' has given statement that she herself had eloped with the accused. She admits having given statement before the learned Judicial Magistrate under Section 164 of Cr.P.C. that she was in love with the accused and her parents were pressurizing and were making preparation of marriage against her will with some other person, therefore, she eloped with the accused to Challakere on 06.04.2010. She has further stated before the learned Judicial Magistrate that accused married her by tying Tali then both of them Crl.A.No.805/2012 12 co-habited as husband and wife in a rented house in Challakere for two months.
17. Later before the Court she states that she gave such statement before the Police and the learned Judicial Magistrate under the coercion of the accused. She makes out such case for the first time before the Court. P.W.11 herself states that, herself and accused together came to the Police Station and appeared before the Police. If the accused had forcibly kidnapped P.W.11 he would have abandoned her somewhere and escaped, but he has appeared before the Police along with P.W.11. By the time she was produced before the Police and the learned Judicial Magistrate, the accused was already under the Police surveillance.
18. P.W.11 in her cross examination denies the suggestion that she has written letter to the accused stating that if he doesn't love her she dies. But she further states that she wrote such letter due to the threat of the accused. She further states that she did not inform her parents or Police about such letter and try to get back the said letter. Crl.A.No.805/2012 13 Such evidence goes to show that she has written a letter to the accused as suggested. Her conduct of not saying to any body about she writing such letter under the threat, makes her evidence that she wrote a letter under threat is unacceptable, that too having regard to her conduct of not protesting her stay with the accused or seeking any body's protection during her stay with the accused.
19. On appreciating such conduct, the trial Court finds such evidence of P.W.11 unacceptable, because all along from the spot of the alleged kidnapping till her stay in Challakere in a house for two months she had sufficient opportunity to protest and seek the help of the public by raising alarm.
20. The alleged eye-witnesses to kidnapping are P.W.2, the mother and P.W.3, elder sister of P.W.11. Regarding entry of the accused into their house, P.W.2 says that the accused forcibly opened the door breaking the bolt of the door and gained entry into the house. Whereas, P.W.3 says that the door was not bolted from inside and the accused Crl.A.No.805/2012 14 pushed and opened the door and gained entry into the house. P.W.2 in her evidence states that when the accused was kidnapping P.W.11, herself and her daughter P.W.3 raised alarm seeking help. But P.W.3 does not whisper anything about that. As against that she says in her cross examination that after accused kidnapping P.W.11, her mother P.W.2 sat still for five minutes and she only woke up P.W.2 and sent her to temple to inform her father.
21. P.W.2 says, except P.W.4 her husband and P.W.1 her brother-in-law, she did not inform any other person about the incident. Further P.W.2 admitted in her cross- examination that they were thinking to perform the marriage of P.W.11 along with her younger brother and P.W.11 had resisted the same. Whereas P.W.4 the father of P.W.11 denies all those suggestions which goes to show that P.W.4 tried to suppress the things. Having regard to these facts and circumstances, the contradictions in the evidence of P.W.2 to P.W.4 and conduct of P.W.11, the trial Court has rightly disbelieved the theory of kidnapping.
Crl.A.No.805/201215 REG. CHARGE OF RAPE:
22. The alleged offence of rape in this case has taken place between 07.04.2010 and 10.06.2010. Section 375 of I.P.C., as it stood prior to 2013, defines rape as sexual intercourse against the will of a women and in case of consent of the women such women not being under the age of 16 years. Exception to the said section as it stood prior to 2013 was in case of such intercourse by man with his own wife over 15 years of age is not rape. By criminal law amendment Act, 13 of 2013 with effect on 03.02.2013, the said age limit is increased to 18 years in any case.
23. Having regard to that, in this case the age of P.W.11, the victim also plays pivotal role in deciding whether the alleged sexual act against 'X' amounts to rape punishable under section 376 of I.P.C. To prove the age of P.W.11, prosecution relies upon the evidence of herself, P.Ws.1 to 4 namely her parents and uncle, Sister and P.W.8 the Head Master of the school where P.W.11 studied, P.W.15 the doctor Crl.A.No.805/2012 16 who examined P.W.11 and Ex.P.5 the birth certificate issued by P.W.8.
24. In the complaint Ex.P.1, P.W.1 has mentioned the age of the victim as 15 years and that she is studying in 9th standard in Chinmuladri National High School. P.W.11 while she was examined on 25.11.2012, has said her age to be 17 years. But no where in her evidence she states what is her date of birth. Therefore, the evidence of P.W.11 doesn't throw any light about her age.
25. P.W.1 in chief examination states that at the time of incident victim was 16 years old. P.W.2 the mother of the victim states that at the time of incident the victim girl was 15 years old. P.W.3 elder sister of P.W.11 states that at the time of incident the victim was 14 years old. P.W.4 father of the victim states that at the time of incident, the victim was studying in 8th standard and she was aged about 13 years. Whereas, P.Ws.1 to 3 and P.W.11 say that she was studying in 9th standard. Therefore, there is inconsistency in the evidence of P.Ws.1 to 4 and P.W.11 regarding the age of Crl.A.No.805/2012 17 P.W.11. As per their deposition her age ranges from 13 years to 16 years.
26. P.W.4 the father of the victim girl himself in his cross examination admits that P.W.11 had discontinued her studies. P.W.8 Head master of Chinmuladri National High School states that P.W.11 stopped coming to the school when she was in 9th standard. That goes to show that P.W.11 was 9th standard school drop out. Ex.P.5 shows that P.W.11 studied 9th standard during 2008-2009. None of the aforesaid witnesses state that what is the date of birth of P.W.11.
27. The other evidence relied upon by the prosecution is the date of birth certificate Ex.P.5 issued by P.W.8 and the evidence of P.W.8. P.W.8 states that on the requisition of Investigating Officer he has issued Ex.P.5 date of birth certificate of P.W.11 on verifying the records of their school and the date of birth of P.W.11 is 06.01.1996. In his cross examination he states that on the basis of transfer certificate brought by the candidate while her admission to class 8th the Crl.A.No.805/2012 18 date of birth certificate is issued, but he does not know on what basis in the transfer certificate the date of birth of P.W.11 is mentioned. Except that document he does not refer to any other document forming base to Ex.P.5.
28. The Hon'ble Supreme Court in Sunil vs. State of Haryana [2010 Crl.Law Journal 839] regarding determination of age of person states as follows:
"29. The short question in the facts and circumstances of this case remains to be determined is whether the prosecutrix was a minor? Dr.Sadhana Verma, PW1 who examined the prosecutrix referred her for verification to the Dental Surgeon and the Radiologist. The failure of getting the prosecutrix examined from the Dental Surgeon or the Radiologist despite the fact that she was referred to them by Dr. Sadhana Verma. PW1 is a serious flaw in the prosecution version. We are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in absence of primary evidence reports of the Dental Surgeon and the Radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix.
30. The prosecution also failed to produce any Admission Form of the School which would have been primary evidence regarding the age of prosecutrix. Crl.A.No.805/2012 19
31. The School Leaving Certificate produced by the prosecution was also procured on 12.09.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable.
32. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced.
33. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis of record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."
29. In this case also P.W.8 has not produced any primary evidence with regard to the entry of date of birth of P.W.11 in their school records so also the victim P.W.11 was not sent for ossification test. P.W.15 doctor Nagamani has conducted the medical examination of the victim and issued Crl.A.No.805/2012 20 the report Ex.P.10. In Ex.P.10 she has stated nothing about the age of the victim, but in her oral evidence she has stated that as per her observation victim girl was above 14 years of age. But according to the evidence of P.Ws.1 to 4 stated about the range of age of the victim is 13 years to 16 years more particularly as per P.W.11 herself she was 15 years of age at the time of the incident.
30. Having regard to such inconsistency in the evidence of witnesses and lapse on the part of the prosecution to subject the victim for ossification test and the judgment of the Hon'ble Supreme Court in Sunil's case referred to supra, the trial Court has rightly held that the prosecution has failed to prove that 'X' was below the age of 16 years as on the date of the incident.
31. The Hon'ble Supreme Court in State of Madhya Pradesh vs. Munna Alias Shambhoo Nath (2016) 1 SCC 696 regarding determination of age of person states as follows:
"10. This Court in Birad Mal Singhvi v. Anand Purohit has held:(SCC p.620, para 17) Crl.A.No.805/2012 21 "17. ... the entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined."
11. Further, it was held by this Court in Sunil v. State of Haryana that: (SCC p.750, para 26) "26. ... In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."
12. In view of the evidence on record and the rationale in the aforementioned cases, we are of a considered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, it can be held that the girl was more than 16 years of age and she was competent to give her consent as held by the High Court. Hence, in the present case, the question of rape does not arise as consensual intercourse has been proved.
32. Having regard to evidence of P.Ws.1 to 4, 11 & 15 and the statement given by 'X' before the Magistrate, the trial Court has justified in holding that P.W.11 is consenting party to the sexual relationship with the accused. Further since the incident has happened prior to amendment to Section Crl.A.No.805/2012 22 375 by Criminal law amendment Act 13 of 2013 and it was not proved that P.W.11 is below the age of 16 years and P.W.11's own evidence that the accused married her, having regard to 6th explanation to Section 375 and the legal exception to section 375 that sexual intercourse by a man with his own wife, the wife not being under 15 years of age is not rape, the sexual cohabitation between the accused and P.W.11 did not amount to rape.
The impugned judgment of the trial Court is based on sound and sustainable evaluation of evidence and reasonings. No grounds made out to interfere.
Therefore, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE HR