Karnataka High Court
State Of Karnataka vs Sri Mariswamy on 11 July, 2023
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NC: 2023:KHC:23849-DB
CRL.A No. 2088 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 2088 OF 2016
Between:
State of Karnataka
By Vijayanagar Police Station,
Mysuru
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
...Appellant
(By Smt. Rashmi Jadhav, HCGP)
And:
1. Sri Mariswamy
Digitally signed by S/o. Kyathasetty,
VEERENDRA KUMAR
KM Aged about 29 years,
Location: HIGH R/at Nadukala Mole Village,
COURT OF
KARNATAKA Chamrajnagar Taluk and District-571 313
2. Kenchaiah
S/o. Rangaiah
Aged about 57 years
R/at Kempanapura,
Chamarajanagara Taluk,
Chamarajanagara District.
[Respondent No.2 impleaded vide court
order dated 18.2.2022]
...Respondents
(By Sri Pratheep K.C., Advocate for R1;
R2 - served & unrepresented)
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CRL.A No. 2088 of 2016
This Criminal Appeal is filed under section 378(1) and (3)
Cr.P.C. praying to grant leave to appeal against the judgment
and order of acquittal dated 08.07.2016 passed by VI
Additional District and Special Judge, at Mysuru in
S.C.No.20/2014 acquitting the respondent/accused of the
offences p/u/s 366, 376 of IPC and u/s 4, 6 of POCSO Act and
also u/s 3(1)(xii) of SC/ST (POA) Act and etc.
This Criminal Appeal having been heard and reserved on
12.06.2023 coming on for pronouncement this day, Sreenivas
Harish Kumar J., pronounced the following:
JUDGMENT
This appeal is by the State under Section 378 of the Code of Criminal Procedure challenging the judgment dated 08.07.2016 in S.C.No.20/2014 on the file of VI Additional District and Special Judge, Mysuru.
2. The respondent No.1 who is the accused was prosecuted for the offences punishable under Sections 366 and 376 of IPC and Sections 4 and 6 of the POCSO Act besides the offence punishable under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
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NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016
3. Briefly stated the prosecution case is that the accused developed acquaintance with PW1 when she was working as a packer in a Agarbatti packing unit. Making a promise that he would marry her, he lured PW1 to come over to Santemarahalli on 16.10.2013. When PW1 went to Santemarahalli, she did not see him and therefore contacted him by making a telephone call. At that time accused asked her to come over to Mysuru and when she went there, he roamed with her in the city of Mysuru till fall of night and then took her to a building which was under construction at Hebbal area. At that place, he had sexual intercourse with her. They used to have sexual intercourse at that place for 3 nights and on 21.10.2013, the accused and one Narayana took her to Kollegala and from there to K.Devarahalli where she was asked to stay in the house of Lakshmi. In the meantime the father of PW1 had made a complaint to the police about her missing. -4-
NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 When PW1 came to Yalanduru, the police traced and took her to Santemarahalli police station. Investigation resulted in charge sheet being filed.
4. After holding trial, the Special Court recorded acquittal giving reasons that the evidence placed by the prosecution would not establish that the accused kidnapped PW1 and then committed rape on her. The court found that the evidence of PW1 was tainted with contradictions and omissions. It was also held that the prosecution did not place cogent evidence as regards the place of occurrence of the offence and that the investigation appears to be perfunctory.
5. Further, the proof provided by the prosecution with regard to age of PW1, it is the finding of the Special Court that though the girl stated that she was born on 05.09.1996, the investigating officer did not collect authenticated document in regard to her age. It was necessary -5- NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 that the investigating officer ought to have collected the birth certificate of PW1 instead of a certificate issued by the school. Therefore expressing doubt in the case of prosecution that PW1 was a minor on the date of occurrence, the Special Court did not find it proper to convict the accused.
6. Smt. Rashmi Jadhav, learned High Court Government Pleader assails the findings of the trial court by highlighting the points that if the testimony of PW1 is read, a clear inference can be drawn that PW1 was enticed by the accused to come over to Mysuru in the pretext of marrying her. She would not have gone with him unless the accused had told him that he was unmarried and he would marry her. She has given a good narration of sequence of events that ultimately led to accused subjecting her to sexual intercourse in a building which was under construction at Hebbal -6- NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 area in Mysuru City. This part of the evidence of PW1 has not been discredited in the cross examination. The evidence of PW2 shows that he went to police station and made a report about missing of his daughter. PW3 has stated that she gave shelter to PW1 in her house. PW5 has stated that she was the owner of Agarbatti packing unit where PW1 used to work and had paid entire wages to PW1 a day before the latter left the work. But from the evidence of PW1 it may be noticed that she left the house saying that she was going to collect the wages from PW5, she stated so in order to go with accused who had by that time lured her to come with him. She also referred to Ex.P.8 a medical report and the evidence of PW11 to argue that the testimony of PW1 is fully supported by the medical evidence. Therefore all the circumstances do clearly indicate that accused made use of PW1 to gratify his sexual desire although he was married and had children. -7-
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7. So far as the age of the girl is concerned, Smt. Rashmi Jadhav argued that the prosecution produced Ex.P6, the extract of the school admission register in which it is indicated that the date of birth of PW1 was 05.09.1996; and to prove Ex.P.6, the prosecution examined PW7. In regard to the finding of the trial court that date of birth of the girl is not proved, Smt. Rashmi Jadhav argued that PW1 discontinued her studies when she failed in 10 t h standard, that means she being literate knew her date of birth to be 05.09.1996. In fact in the cross examination, the defence counsel elucidated the date of birth from her. When PW2, the father of PW1, was cross examined, a suggestion was given to him that PW1 was aged more than 18 years as on16.10.2013 and he denied the suggestion. He also denied another suggestion that when he admitted PW1 to school, he gave her approximate age. Therefore the date of birth as mentioned in Ex.P.6 is the correct date -8- NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 of birth and if it is considered, on the date of occurrence of incident PW1 was a minor. So this much of evidence was sufficient enough for the trial court to convict the accused as the evidence in regard to rape on PW1 has not been assailed. Therefore she argued for allowing the appeal and convicting the accused.
8. Sri K.C.Pratheep, learned counsel for respondent No.1-accused arguing for sustaining the judgment of acquittal submitted that though the evidence of PW1 with regard to committing rape on PW1 appears to have not been assailed in the cross examination, the trial court has arrived at a right conclusion to acquit him as the prosecution failed to prove that PW1 was a minor. Ex.P.6 as according to him is no proof with regard to age. PW1 might have given her date of birth, but it was not sufficient; the investigating officer ought to have collected the primary proof i.e., the -9- NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 birth certificate or the matriculation certificate as envisaged in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007. Ex.P.6 is the certificate issued by the Vice Principal of the School where she did her secondary education. It was not the school that she attended first. PW1 has stated in the cross examination that she was born in the hospital. If that was the case, the investigating officer ought to have collected the birth certificate. Then he referred to Ex.P.18, the statement given by PW1 under Section 164 of Cr.P.C., and submitted that PW1 gave her age as 18 years before the Magistrate. If she herself disclosed her age as 18 years before the Magistrate, obviously an inference can be drawn that 05.09.1996 could not be her correct date of birth. Thus viewed, PW1 was not a minor and since her evidence clearly shows that she was a consenting party to the act of intercourse, the judgment of acquittal cannot be reversed.
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9. Keeping in mind the points of arguments advanced by the learned High Court Government Pleader as also Sri K.C.Pratheep for the respondent No.1/accused, if we examine the evidence, it is possible to draw the following inferences.
9.1.In the charge sheet the investigating officer invoked the offence under Section 3(1)(xii) of the SC/ST Act. This was merely for the reason that PW1 belongs to Scheduled Caste as evidenced by Ex.P.12 and the accused belongs to Uppara caste as per Ex.P.13. Absolutely we don't find any offence having taken place in the background of caste factor. It has been a mechanical practice of the police officers to invoke the provisions of SC/ST Act the moment they come to know that the victim of the incident happens to be a scheduled caste or scheduled tribe without ascertaining whether an incident in the background of caste enemity or caste rivalry has taken place or not. In
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NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 this case there is no evidence that the accused wanted to subject PW1 to sexual abuse just because she belongs to scheduled caste; on the other hand the evidence shows that PW1 went with accused and spent a few days with him. She may have stated that the accused promised to marry her and it might be false also, but it doesn't indicate that the accused had ever had an intention to exploit sexually a girl belonging to scheduled caste. Therefore we don't find any material so far as the offence under the Atrocities Act.
9.2. We need not refer to the evidence of all the witnesses. It is enough if we refer to the evidence of PW1 and PW11 as the evidence of PW3 can be believed that the accused made PW1 stay in her house for some days.
9.3. Evidence of PW1 shows that accused developed acquaintance with her and by making a
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NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 promise to marry, he enticed to come over to Mysuru. As has been rightly argued by Smt. Rashmi Jadhav, in spite of certain contradictions in her evidence being present, our assessment of evidence also shows that PW1 and the accused had sexual intercourse in a building which was under
construction at Mysuru. PW11 the lady medical officer who examined PW1 has also deposed that she did not find any injury marks on the person of PW1 when she examined her. She also noticed that hymen was not intact. She was of the opinion that PW1 might have had sexual intercourse. But the question is whether the evidence placed by the prosecution would conclusively establish that PW1 was a minor on the date when she left the house to go with accused. But for the age of PW1, the intercourse between PW1 and the accused appears to be consensual. If she was a minor, her consent was immaterial and consent was no consent in the eye of law.
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10. Of course PW1 gave her date of birth as 05.09.1996, and that the prosecution relies on Ex.P.6 a school admission register extract testified by PW7. The argument of Smt. Rashmi Jadhav that the girl who attended the school must be knowing her date of birth and if she gave her date of birth, it must be believed, has a force. The date of birth given by a literate person may be presumed to be correct, but if the law requires a particular kind of evidence to be produced in proof of age, investigating officer must follow that procedure. Therefore even though PW1 gave her date of birth, her testimony in this regard cannot be acted upon because of discrepancies found in the prosecution case. As pointed out by Sri K.C.Pratheep, when PW1 gave statement before the Magistrate under Section 164 of Cr.P.C., she stated her age as 18 years, Ex.P.18 is the statement under Section 164 of Cr.P.C. It is possible to say that 18 years was her running age
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NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 and not that she had completed 18 years, but in column No.4 of Ex.P.1 the spot mahazar, the age of PW1 is shown as 22 years. Though in column No.2 her age is shown as 17 years, it is not known as to why her age was shown as 22 years in column No.4. Ex.P.1 cannot be ignored because it is the spot mahazar drawn by the police during investigation. If the age mentioned as 22 years in Ex.P.1 is considered, a doubt would obviously arise whether the date of birth given by PW1 as 05.09.1996 was correct or not. It was very much necessary that the investigating officer ought to have collected a primary document for providing proof with regard to age of PW1. In this view Ex.P.6 is of no use. Therefore the doubt as regards the actual age of the girl has not been removed by the prosecution and this benefit should obviously go to the accused. The trial court has rightly come to conclusion that the prosecution has not been able to establish that PW1 was a minor.
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NC: 2023:KHC:23849-DB CRL.A No. 2088 of 2016 The finding thus given by the trial court, in our opinion has to be confirmed. For these reasons we don't find good ground to interfere with the judgment of the trial court and therefore we dismiss the appeal.
Sd/-
JUDGE Sd/-
JUDGE KMV List No.: 1 Sl No.: 1