Karnataka High Court
The State Of Karnataka vs Raju S/O Basavarajappa Bakkajji on 4 August, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 04TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.A. NO.100270/2015
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY THE
CIRCLE POLICE INSPECTOR,
KUMARAPATTANAM POLICE STATION,
THROUGH ADDL. STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING, DHARWAD.
.....APPELLANT
(BY SRI. V.M. BANAKAR, ADV.)
AND:
RAJU, S/O BASAVARAJAPPA BAKKAJJI,
AGED ABOUT 26 YEARS,
R/O: KARUR, TQ: RANEBENNUR.
.....RESPONDENT
(BY SRI. GIRISH S. HULAMANI, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378(1) & (3) OF CR.P.C. PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 13.08.2015 PASSED
BY THE II ADDL. DIST. & SESSIONS JUDGE, HAVERI
(SITTING AT RANEBENNUR) IN S.C. NO.90/2012 TO
SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 13.08.2015 PASSED BY THE II
ADDL. DIST. & SESSIONS JUDGE, HAVERI (SITTING
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AT RANEBENNUR) IN S.C. NO.90/2012 BY ALLOWING
THIS CRIMINAL APPEAL AND TO CONVICT AND
SENTENCE THE RESPONDENT/ACCUSED FOR THE
OFFENCE CHARGED AGAINST HIM.
THIS APPEAL IS COMING ON FOR HEARING,
THIS DAY, V. SRISHANANDA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the State questioning the validity of the judgment dated 13.08.2015 passed in S.C. No.90/2012 on the file of II Additional District and Sessions Judge, Haveri sitting at Ranebennur.
2. The brief facts of the prosecution case are as under :
A complaint came to be lodged by one Rudrappa stating that on 07.06.2012 he had left his daughter (hereinafter referred to as 'victim girl') and the elder sister Siddamma in the house and he had been to work;
on his return about 5.00 p.m., he found that the victim girl was missing and enquired his elder sister; she replied that the victim girl was in the house up to 2.00 p.m. thereafter she does not know whereabouts of victim girl. They searched for victim girl up to 9.00 p.m., 3 enquired with kith and kin, but their efforts went in vein. The complaint was received by the Kumarapattanam Police and they registered a case in crime No.58/2012. Thereafter, the victim girl returned to the house on 08.06.2012 at about 8.00 p.m. and on 09.06.2012 at about 12.30 p.m., the victim girl along with her parents and others visited Kumarapattanam Police Station and another complaint was lodged by the victim girl stating that the accused and herself got acquainted with each other about 2 months earlier to the complaint and they had exchanged their mobile number; and accused had told her that he is in love with her and he would marry her. Further on 07.06.2012 she received a call stating that accused is alone in the house and victim girl should visit him.
Accused repeatedly called her at about 2.30 p.m. and she left the house and reached the house of the accused. It is further stated in the complaint that with a promise to marry her, the accused had a forcible intercourse at about 10.30 p.m. 4
3. She further states that she was made to stay in the house of the accused on that day. Next day, the accused let her to go to home at about 8.00 p.m., and he has also threatened that she should not reveal about the forcible intercourse to anybody and in case she reveals he would not marry her; and thus sought for action against accused.
4. The Police after receiving the said complaint from the victim girl, registered the case in Crime No.59/2012 for the offences punishable under Section 376 and 506 of IPC and conducted a detailed investigation. They sent victim girl to medical examination. Accused was apprehended and he was sent to medical examination; spot and seizure mahazars were conducted. After detailed investigation, charge sheet came to be filed for the offences punishable under Section 376 and 506 of IPC.
5. On receipt of charge sheet, the learned Magistrate took cognizance and committed the case to the Sessions Court. Case was made over to the II 5 Additional District and Sessions Judge, Haveri, sitting at Ranebennur for disposal.
6. The Sessions Court secured the presence of the accused and charge was framed. The accused did not plead guilty and as such the trial was held.
7. In order to prove the charges leveled against the accused, the prosecution in all, examined 12 witnesses as PW1 to 12 and as many as 21 documents were relied upon by the prosecution which were exhibited and marked vide Ex.P1 to P21. Materials objects viz., MO1 to MO7 were marked.
8. On conclusion of the trial, the statement of the accused under Section 313 of Cr.P.C. was recorded. The accused denied the case of the prosecution in toto and did not choose to adduce any evidence in defence.
9. The learned Sessions Judge after hearing the prosecution as well as the counsel for the accused, has acquitted the accused by its judgment dated 13.08.2015.
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10. It is that judgment which is under challenge in this appeal by the State.
11. The learned Additional State Public Prosecutor vehemently contended that the order of acquittal passed by the trial court cannot be countenanced in law and sought for allowing the appeal and convict the accused.
12. He further emphasises that the testimony of the victim girl (PW1) clearly establishes that the accused had committed forcible intercourse on 07.06.2012 in his house with a promise to marry her and also confined the victim girl in his house till 08.06.2012. Therefore, the trial court ought to have convicted the accused based on sole testimony of victim girl.
13. It is his further say that, S.S.L.C. certificate produced and marked at Ex.P9 clearly shows that the date of birth of the victim girl is 04.07.1996 and as on the date of incident i.e., 07.06.2012, she was less than 16 years and therefore, it was not a consensual act. 7
14. He further contends that the medical evidence reveals that hymen is ruptured. In view of delayed medical examination of the victim girl, especially after taking bath, the available medical evidence ought to have been appreciated in proper manner by the trial court coupled with the oral testimony of the victim girl and conviction should have been recorded. He strenuously urged this court to reappreciate the material on record and sought for allowing the appeal.
15. Per contra, the learned counsel for the accused submits that the entire case of the prosecution is a nothing but a false story cooked up by the parents of the victim girl in order to take revenge against the accused on account of previous rivalry existed between the accused's community and complainant's community.
16. He further points out that answers obtained in the cross examination of PW1 would clearly establish 8 that the accused has been falsely implicated in the case and sought for dismissal of the appeal.
17. He also submits that when once the trial courts has recorded an order acquittal the innocence of the accused gets strengthened and the prosecution must show from the material available on record as how the order of acquittal is bad in law. According to him, the judgment of trial court is based on sound legal principles and is passed after appreciating the materials on record in proper manner and thus does not call for interference.
18. In view of the rival contentions, following points would arise for our consideration:
1. Whether the prosecution establishes that the accused had a forcible intercourse on 07.06.2012 at about 10.30 p.m. in his house with the victim girl and thus committed the offences punishable under Sections 376 and 506 of IPC?9
2. Whether the State establishes that impugned judgment calls for interference?
19. Answer to the above points is in negative for the following :
REASONS
20. In order to prove the charges leveled against the accused, the prosecution had relied on oral testimony of PW1 to 12 and documentary evidence which are marked before the Sessions Court vide Ex.P1 to 21.
21. Among the prosecution witnesses, PW1 is the victim girl. She deposed that she possess a mobile telephone; she developed acquaintance with accused when he was carrying out masonry work near her house. Later, the acquaintance turned into a love affair. On 07.06.2012 all inmates of the accused had been to Yallammanagudda and in her house except her and her grand mother, others had been to work. At about 2.30 p.m, she received calls repeatedly from accused that he 10 is all alone in the house and she should visit him. As such, she proceeded alone to the house of accused around 3.00 p.m.
22. She further deposed that up to 5.00 p.m., they were chit chatting and at 5.00 p.m. she told the accused that she would go home. But, the accused made her to stay in his house itself and at about 10.30 p.m. he took her into a room and disrobed her. He also got disrobed and had forcibly intercourse with her. She also deposed that she could not raise hue and cry as accused had gagged her mouth. It is her case that at about 10.30 p.m. accused told her to return to her house, but she stayed in his house itself as she would be abused by her parents if she were to return in that odd hour. Her father had lodged a missing complaint to the Police on her non-return and the accused confined her in an Almirah and he let her free next day at 8.00 p.m.
23. It is also her case that the accused also threatened her with dire consequences including life 11 threat, if the incident is revealed to anybody. As such she did not reveal anything to her parents. Since her mother started beating her, she had intimated the incident around 10.30 p.m. It is her specific case that the accused had forcible intercourse with a promise that he would marry her.
24. She stated that she was born on 04.07.1996 and she had visited the Police Station after taking bath and wearing the same clothes which were worn on the day of incident. It is her case that on 09.06.2012 the Police sent her for medical examination and Police have conducted spot panchanama after verifying the spot shown by her. She identified the clothes worn by her and also that of the accused and also complaint lodged by her.
25. In her cross examination, she admits that her father is politically influenced person and she had friendship with the accused about a year earlier from the date of complaint and her parents had objected for friendship and despite their objection, she continued 12 the friendship with the accused. She also admits that her parents had decided to marry her to one Hanumantha and she had no intention to marry him, which was also known to her parents. It is further elicited that she had intended to marry the accused and accused never told her that he would not marry her.
26. PW2 and PW3 are the mahazar witnesses to Ex.P2 and 3 -Mahazars. In their evidence they deposed that at the request of the Police they have visited the spot. They also identified the photographs vide Ex.P4 to P7. In their cross examination except suggesting that they have given false evidence nothing useful is elicited by defence.
27. Parents of the victim girl are PW4 and 5. They deposed to the effect that on 07.06.2012, they had been to attend their regular work leaving the victim girl and grand mother of the victim girl in the house and when they came home, the victim girl was found missing and they searched in the nearby places and called the relatives enquiring whereabouts of the victim 13 girl; But the victim girl was not traced. As such, PW4 lodged missing complaint in Kumarapattanam Police Station vide Ex.P11.
28. It is their further case that on 08.06.2012 at about 8.30 p.m. the victim girl came home voluntarily and on enquiry she revealed about the forcible intercourse by the accused and as such, they sought for action against the accused.
29. In the cross examination of PW4, he admits that he has not given any statement before Police except giving the complaint. He admits that he does not know as to whose house the victim girl had visited.
30. In the cross examination of PW5 she has answered that on 07.06.2012, when she returned to the home she did not find her daughter and on enquiry with PW6, she came to know that the victim girl had left home by 2.00 p.m. She has also answered that except her daughter going away from her house she does not know anything about the case.
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31. PW6 is the grand mother of the victim. Her evidence is not much relevancy, except that she has stated that on the day of incident, the victim girl has left the house around 2.30 p.m. and she intimated the same to PW5 in the evening.
32. PW7 is the Head Master of the Primary School at Karur, who issued Ex.P13 wherein date of birth of victim girl is mentioned as 04.07.1996.
33. Circle Inspector is examined as PW8, who conducted panchanama vide Ex.P2 and P3 and took photographs vide Ex.P4 to P7. In his cross examination he denied that he concocted Ex.P2 to P7 and filed a false charge sheet.
34. The doctor who examined accused and issued as Ex.P18 and P19 is examined as PW9. In his cross examination, he admits that if a person indulges in sexual intercourse for the first time, there may be possibility of scar on the private part of the said person. 15
35. The doctor who examined the victim girl is examined as PW10. She deposed that on 11.06.2012 she examined the victim girl. She deposed that her examination of victim girl did not suggest victim girl indulging in recent sexual intercourse. She issued a report in this regard vide Ex.P17.
36. In her cross examination, she admits that there were no external injuries near the private part of the victim girl. However, she has noticed that there were old scars and she could not estimate the age of old scars.
37. PW12 is the PSI, who registered the case after obtaining Ex.P1 from the victim girl. His evidence is formal in nature.
38. The learned Additional State Public Prosecutor has sought for re-appreciation of above evidence on record and prays for recording an order of conviction against the accused.
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39. It is found from Ex.P19 as on the date of incident, she is aged of 15 years 11 months 3 days. The medical evidence available on record clearly shows that there were no external injuries sustained by the victim girl near her private parts. So also the doctor who examined the accused did not find any external injuries on the private part of the accused.
40. From the averments made in Ex.P1 and oral testimony of the PW1, it is the victim girl, who went to the house of the accused around 2.30 p.m. voluntarily with full knowledge accused is all alone in his house. She categorically admitted that she had acquaintance with the accused about a year earlier to the day of incident. It is also a fact that she used to call the accused on his mobile telephone from her mobile telephone regularly. It is her testimony that initially they were having acquaintance and later it had turn into love affair.
41. If at all, if the incident has happened at 10.30 p.m. on 07.06.2012, it is highly unbelievable that 17 she would have been confined in Almirah till 8.00 p.m. on 08.06.2012. Moreover, fact of accused confining the victim girl in the Almirah for about 20 hours is not even mentioned in Ex.P1. If confinement theory is true, how the victim girl came to know about lodging of the missing complaint by her father remains unanswered. What efforts were made by the parents of the victim girl to contact the victim girl on her mobile telephone is not forthcoming in the complaint-Ex.P11. Nor her parents have deposed before the court.
42. After lodging the missing complaint at Ex.P11, no steps are taken by the Police to trace the victim girl. At least the spot mahazar is not conducted by the police.
43. Further, the conduct of the victim girl as soon as she reached her house on 8/6/2012 is significant. She did not reveal the act of forcible sexual intercourse by the accused as soon as she reached the home. It is only after her mother assaulted her, she has revealed about the incident.
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44. Even though, the court can convict the accused in a matter of this nature based on sole testimony of the prosecutrix, it is well settled that if the testimony of the prosecutrix does not inspire confidence in the court, the court should look for corroboration.
45. In the present case, except the version of PW1 that the accused had forcible sexual intercourse with victim girl with a promise to marry her, no other evidence worth is available on record. The version of PW1 does not inspire confidence in the court for the following discrepancies:
Victim girl with full knowledge that accused is all alone in his house, still visits accused voluntarily.
She stays in his house till 8 pm on 8/6/20. She does not reveal the alleged incident to her parents soon she reached her house.
Non mentioning of the fact of her confinement in the house of accused being not mentioned in Ex.P1.
46. As such, when we look for corroboration for oral testimony of the prosecutrix, FSL report-Ex.P19 19 reveals that seminal stains were not detected in the Public hairs, Anterior Vaginal wall swab, Posterior vaginal swab, Nails of both hands and foots and the cloths worn by the victim girl on the day of incident. So also the clothes worn by the accused, the presence of seminal stains were not detected. Vaginal smear by the doctor did not contain spermatozoa. Whereas, the doctor who examined the victim girl has specifically stated that she has collected the spermatozoa present in and around the private part of the victim girl. How could spermatozoa be present till 09.06.2012, especially when victim girl taken bath is a fact which remains unanswered by the prosecution.
47. So also, the medical reports by the doctors who examined accused and victim girl would reveal any useful information to establish the theory of the prosecution.
48. Oral testimony of parents of the victim girl did not improve the case of the prosecution and conduct of the parents in not calling the victim girl on her mobile 20 telephone is also a significant fact while appreciating the theory of the prosecution.
49. Defence theory that a false case came to foisted against the accused on account of rivalry between his community and Victim's community gets strengthened by the answer elicited in the cross examination of PW1, wherein she admits that there was enmity between the community of the accused and her community.
50. PW1 also admits that her parents had decided to marry her to one Hanumatha, who is the maternal uncle of the victim girl and she was not willing for said alliance. Further, victim girl admits in her cross examination that her parents had known about her friendship with the accused person and they objected for the same and despite their objection, she had continued her friendship with the accused.
51. When all these factors are viewed cumulatively, the theory propounded by the prosecution that the accused had a forcible sexual intercourse with 21 the victim girl with a promise to marry her, appears to be doubtful. The same is the finding recorded by the learned Sessions Judge in the impugned judgment.
52. It is well settled principles of law that the prosecution has to prove the charges leveled against the accused beyond all reasonable doubt.
53. So also it is well settled principle of law and require no emphasis that the suspicion howsoever grave cannot take the seat of proof.
54. In this regard this court places its reliance of the Hon'ble Apex Court in the case of Sujit Biswas V/s. State of Assam, reported in (2013) 12 SC+C
406. The relevant portion of the said judgment is culled out hereunder:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental 22 distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide:
Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017;23
and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
55. Likewise the accused is presumed to be innocent unless charges leveled against him stands proved beyond all reasonable doubt.
56. Further, recording of an order of acquittal by a competent court strengthens such innocence of the accused as is enunciated in the recent decision of the Hon'ble Apex Court in the case of Sampat Babso Kale and another V/s. State of Maharashtra, reported in 2019 (4) SCC 739 wherein the Hon'ble Apex Court has referred the case of Chandrappa & Ors. v. State of Karnataka, reported in 2007(4) SCC 415. The relevant portion of the said judgment is culled out hereunder:
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of 24 the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka1, laid down the following principles: (2007) 4 SCC 415 "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 questions 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. 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 25 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."
57. We have reappreciated the material on record and analysed the case of the prosecution in the backdrop of legal principles enunciated in the above decisions. On such analysis, we do not find any serious infirmity in trial court recording the order of acquittal against the accused.
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58. The appellant is unable to establish before this court that the finding recorded by the trial court needs interference by this court.
59. In view of the foregoing discussion, the points are answered in the negative and we pass the following :
ORDER The appeal sans merit. Hence dismissed.
The bail bond, if any, executed by the accused stands cancelled.
Sd/-
JUDGE Sd/-
JUDGE MNS/