Karnataka High Court
The State Of Karnataka vs Abhi @ Abhishek on 25 March, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.160 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF MARCH, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.160 OF 2018 (A)
BETWEEN:
The State of Karnataka
Through Hunasuru
Rural Police Station,
Rept.by State Public Prosecutor,
High Court of Karnataka,
Bengaluru-01. ...Appellant
(By Smt. Rashmi Jadhav, Addl. SPP)
AND:
Abhi @ Abhishek,
S/o Nagaraju @ Kapili,
Aged about 20 years,
Occ: Coolie,
R/o Kote Beedi,
Kattemalalavadi Village,
Hunasuru Taluk,
Mysore District-571 105. .. Respondent
( By Sri Vijay Kumar Prakash, Advocate )
This Criminal Appeal is filed under Section 378(1) and (3)
of Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order dated 23.03.2017, passed by
the VI Addl.District and Special Judge at Mysuru in
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CRL.A No.160 of 2018
S.C.No.3/2016, acquitting the accused/respondent, for the
offences punishable under Sections 366, 376(2)(i) of IPC and
under Section 5(m) read with Section 6 of POCSO Act, set aside
the impugned judgment and order dated 23.03.2017, passed
by the VI Addl.District and Special Judge at Mysuru in
S.C.No.3/2016, acquitting the accused/respondent, for the
offences punishable under Sections 366, 376(2)(i) of IPC and
under Section 5(m) read with Section 6 of POCSO Act and
convict and sentence the accused/respondent for the offences
punishable under Sections 366, 376(2)(i) of IPC and under
Section 5(m) read with Section 6 of POCSO Act, in the interest
of justice.
This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
05.03.2024, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 23.03.2017, passed by the learned VI Addl.District and Special Judge, Mysuru, (hereinafter for brevity referred to as the `Special Court') in S.C.No.03/2016, acquitting the accused of the offences punishable under Sections 366, 376(2)(i) of the Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC') and Section 5(m) read with Section 6 of -3- CRL.A No.160 of 2018 the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as `POCSO Act').
2. The summary of the case of the prosecution as could be gathered from the records is that, on the date 31.08.2015, at about 5.30 p.m., while the victim girl (CW-2), aged about 7 years, was sitting in front of her house at Kattemalalavadi Village, of Hunasuru Taluk, within the limits of complainant -Police Station, doing school home-work, the accused with an intention to commit penetrative sexual assault upon her, induced her to come to his house stating that he would give her fruits to eat and after making her to come to his house, which was situated in front of house of CW-2, he committed penetrative sexual assault upon CW-2, the minor victim girl and thus has committed the offences punishable under Sections 366, 376(2)(i) of IPC and Section 5(m) read with Section 6 of POCSO Act.
3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges against the accused for the offences punishable -4- CRL.A No.160 of 2018 under Sections 366, 376(2)(i) of IPC and Section 5(m) read with Section 6 of POCSO Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all eleven (11) witnesses as PW-1 to PW-11, got produced and marked documents from Exs.P-1 to P-14 and material objects from MO-1 to MO-3. From the accused's side, no witnesses were examined, however, a portion of statement of PW-3 recorded under Section 161 of Cr.P.C., was marked as Ex.D-1 and the Clinical examination of victim girl was marked as D-2.
4. After hearing both side, the Special Court by its judgment dated 23.03.2017, acquitted the accused of the offences punishable under Sections 366, 376(2)(i) of IPC and Section 5(m) read with Section 6 of POCSO Act. Challenging the same, the appellant - State has preferred the present appeal.
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5. The appellant -State is represented by learned Addl.State Public Prosecutor and respondent is represented by his learned counsel.
6. The learned Addl.State Public Prosecutor for the appellant and learned counsel for the respondent are physically appearing in the Court.
7. The Special Court records were called for and the same are placed before this Court.
8. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Special Court records.
9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Court.
10. Learned Addl.State Public Prosecutor for the appellant in her argument submitted that the age of the victim girl, which was 7 years 8 months as on the date of the alleged incident, is not disputed from the accused side. -6- CRL.A No.160 of 2018 The occurrence of the incident has been proved by the evidence of PW-1, the victim girl, which in turn, was corroborated by the evidence of her mother, who was examined as PW-2. The presence of injuries on the knee and head would go to show that the injuries sustained by the victim was not due to fall while playing which defence was taken by the accused in the Special Court.
Learned Addl.State Public Prosecutor further contended that the medical evidence of PW-9 and Ex.P-6 also corroborates the evidence of PW-1 and PW-2. She further stated that if anybody tells a minor as to give evidence in the Court, the same cannot be termed as a tutoring. Finally stating that no parents would scarifies the interest of the child, particularly with respect to the character and future of a minor girl child, as such, the accused cannot attribute any ill-motive to the parents of the victim girl, learned Addl.State Public Prosecutor submitted that the Special Court without appreciating the evidence placed before it in its proper perspective, passed -7- CRL.A No.160 of 2018 the impugned judgment, which deserves to be set aside and the appeal deserves to be allowed.
11. Per contra, learned counsel for the respondent in his argument submitted that since the houses of the accused and the victim girl are so closely located that talking in one house can be heard in the house of the other. Even a person going from the house of the victim to the house of the accused can also be seen, still, the prosecution has not examined any of the independent witnesses who might have seen the accused enticing the girl asking her to come to his home, so that, he can give fruits to her. Further the prosecution also has not examined any of the independent witnesses who have seen the child going to the house of the accused or who have heard the screaming of the girl. Thus, the evidence of PW-1 and PW-2 are unsafe to believe.
He further contended that there is inconsistency in the evidence with respect to the parents and grand- mother of the girl being away from the home at the time when the accused is said to have enticed the girl to come -8- CRL.A No.160 of 2018 to his home. He also stated that PW-1, the alleged victim girl, was tutored as to what to be stated in the Court. Thus, her evidence is a tutored version which cannot be believed by the Court. He also submitted that the evidence of PW-2 and PW-9 are contrary about the alleged bleeding of the victim girl after the incident. There is inordinate delay in seizure of clothes of the victim after the alleged incident. When it is alleged that the mats in the house of the accused were stained with blood, the said mat was not seized by the Investigating Officer. It is appreciating every piece of evidence, the Special Court since has pronounced the judgment of acquittal, the same warrants no interference at the hands of this Court.
12. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond reasonable doubt that on the date 31.08.2015, at about 5.30 p.m., in front of house of PW-1 (CW-2), the victim girl, who was minor in her age, at Kattemalalavadi Village, Hunasuru Taluk, within the limits of complainant police station, the accused -9- CRL.A No.160 of 2018 kidnapped CW-2 (PW-1) the minor victim girl from her house to his house with an intention to force to have sexual intercourse and thereby has committed an offence punishable under Section 366 of IPC?
(ii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused after kidnapping CW-2 (PW-1) the minor girl from her house, took her to his house situated opposite to the house of CW-2 and subjected her to penetrative sexual assault and thereby has committed the offence punishable under Section 376(2)(i) and Section 5(m) read with Section 6 of POCSO Act?
(iii) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
13. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that the present appeal is filed by the complainant-State against the judgment of acquittal of the accused from the alleged offences punishable under Sections 366, 376(2)(i) of IPC and Section 6 of POCSO Act. Since as per criminal law, the accused is presumed to be innocent until his guilt is proved and further the accused, in the instant case, has
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CRL.A No.160 of 2018already been benefitted by the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(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
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reinforced, reaffirmed and strengthened by the trial court.
42(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."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial
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court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in Roopwanti -vs- State of Haryana and others, reported in AIR 2023 SC 1199.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
14. According to the prosecution, the alleged victim girl was aged 7 years 8 months as on the date of the
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CRL.A No.160 of 2018alleged incident. Among the eleven witnesses examined by the prosecution, the witnesses who could speak about the age of the victim girl mainly are PW-1, PW-2, PW-3, PW-9 and PW-10.
15. PW-1 the alleged victim girl in her evidence, which was recorded considering her as a child witness, has stated that at the time of the alleged incident, she was studying in II Standard schooling, however, she has not stated as to how old was she as on that year.
16. PW-2 (CW-1) Leelavati, the mother of the alleged victim girl, though has not stated the exact age of PW-1, her daughter, but, she has stated that she was the youngest amongst her children and as on the date of her evidence, she was studying in III Standard schooling.
17. PW-3 (CW-9) Cheluvaraju, the father of PW-1 - the alleged victim girl, has stated that as on the date of his evidence, which was recorded in December 2016, his said daughter was studying in III Standard of schooling in the Government Higher Primary School at Kattemalalavadi
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CRL.A No.160 of 2018Village. He also stated that as on the date of the incident, PW-1 was aged 7 years.
The evidence of PW-2 and PW-3 that alleged victim girl is their daughter and was studying in III Standard schooling in the year 2016, has not been denied in their cross-examination, so also, the evidence of PW-3 that PW-1 was aged 7 years on the date of the alleged incident also has not been denied in his cross-examination.
18. PW-9 (CW-23) Dr.Meenakshi, who claims that being a Senior Specialist at General Hospital, Hunasuru, at the relevant point of time, she has, at the request of the complainant-Police, medically examined the alleged victim girl on the date 01.09.2015. Though she has given a detailed account of her observations regarding alleged sexual assault upon the said minor girl, but, she has not whispered anything about the age of the alleged victim girl.
19. PW-6 (CW-17) Smt.Savitha, a counsellor in Women Helpline Centre, which comes under the office of CDPO, at Hunasuru, has stated that she was informed
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CRL.A No.160 of 2018about the alleged act of sexual assault upon a minor girl aged about 7 years.
The said evidence of PW-6 that she was told that the alleged victim girl was aged about 7 years has not been denied in her cross-examination.
20. Thus, even though the prosecution has not placed any other material, including the Birth Certificate or the date of birth certificate of the alleged victim girl issued by the School or any other relevant documents depicting the age of the minor girl, however, the very physical appearance of the victim girl before the Special Court has made the Special Court to believe her as a child witness and put few Court questions and thereafter, to proceed in recording her evidence.
Similarly, the evidence of PW-2 and PW-3, the parents of the said girl also shows that, among the three children, they have the alleged victim girl as the youngest one and that all the three children were studying in Government School in their village. Thus, they have shown that PW-1 was a minor girl.
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CRL.A No.160 of 2018
21. As observed above, PW-3 has stated that PW-1 was aged 7 years on the date of the alleged incident. Further, learned counsel for the respondent also fairly submitted that he would not deny or dispute that PW-1, the alleged victim girl, was aged between 7 to 8 years as on the date of the alleged incident. Under these circumstances, the age factor of the alleged victim girl need not be continued further.
22. According to the prosecution, the accused is a person known to the family of the victim girl, including the victim girl and that he is a resident of same village, having his house opposite to that of PW-2 and PW-3, the parents of the alleged victim girl. PW-1, PW-2 and PW-3 have stated in their evidence that they know the accused and his house is on the opposite side of the house of these witnesses with a road running in-between their houses. The said evidence of PW-1, PW-2 and PW-3 has not been denied in their cross-examination. Therefore, it stands established that the accused is a known person to the family of the alleged victim girl.
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CRL.A No.160 of 2018
23. The evidence of PW-10 (CW-20) Nagaiah, the Head Master of Government High School, Kattemalalavadi Village, that at the request of the Investigating Officer and based upon the entries made in the school Admission Register, he has issued a Certificate as per Ex.P-8 showing the date of birth of the accused, who was a student in their High School, as 05.07.1997, is also neither denied nor disputed from the respondent's side. His said evidence has remained undenied and undisputed since he was not cross-examined from the accused side. As such, the age of the accused appears to be 18 years as on the date of the alleged incident which is alleged to have taken place on 31.08.2015.
24. PW-8 (CW-22) Dr.Krishnakumar, then Senior Specialist in General Hospital at Hunasuru, in his evidence has stated that on 03.09.2015, in the afternoon, he has examined the accused, who was produced before him by the complainant-Police and by his examination, he did not notice anything by which it can be held that the accused
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CRL.A No.160 of 2018was not capable to have sexual intercourse. Accordingly, he has issued his report as per Ex.P-5.
The said evidence go to show that the accused who was major in his age was not incapable of having sexual intercourse. It is in the light of above evidence, the next point to be considered is as to whether the prosecution has proved the alleged incident of penetrative sexual assault upon the minor victim girl by the accused.
25. In order to prove the alleged incident, it is once again the evidence of PW-1, PW-2 and PW-3 are primarily important evidence, followed by other prosecution witnesses, including PW-9, who claims to have examined the victim girl.
PW-1, the alleged victim girl in her evidence has stated that in the year of the alleged incident, she was studying in II Standard schooling. Every day, after completion of the school at 4.00 p.m., after returning home from the school, she used to sit and attend the home-work given by the school and keep writing.
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CRL.A No.160 of 2018Accordingly, on the date of the incident, while she was attending the home-work given by the school, her mother had gone out to fetch water and father had been away from the home on work, even the grand-mother also had been on work in lands and her elder brothers Venkatesh and Darshan had gone near the school for playing. It was at that time, the accused stating that he would be giving her a guava fruit, took her to his house, where none were there in his house and tied a cloth around her mouth and slept upon her. He removed the tights worn by her, so also, the nikker worn by him. He was sleeping upon her. The blood started coming from her genital organ and she felt crying. It is thereafter, the accused opened the door, she came back to home. While coming back, the accused told her not to reveal the same before anyone. When she returned home, she saw her mother and told her what accused did. Her mother undressed her and applied some oil to her private part.
The witness further stated that Madam had taken her to hospital, where even before the doctor also, she stated
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CRL.A No.160 of 2018the act committed by the accused, so also, before the police. The police had also taken her to the Court. There also, she has stated the same thing. The witness has identified the accused in the Court.
26. PW-2, the mother of PW-1, in her evidence about the incident has stated that, on the date of the incident, while her daughter (PW-1) was sitting outside the house on a platform, attending the home-work given by the school, she went away to fetch some water for drinking. When she returned after fetching water, she saw PW-1 coming from the house of the accused, but, trembling. At her enquiry, she told that, stating that he would give her a guava fruit, accused had taken her to his house and tied her mouth with a cloth, laying her down, had slept upon her. At that time, the accused had removed her innerwear, so also, her tights. The witness has further stated that, hearing the same, she got her daughter removed the tights worn by her and washed the said portion and applied some oil to the private part of the body of PW-1. She was weeping till her husband and
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CRL.A No.160 of 2018mother-in-law returned to home. After their return, she informed them about the incident. All of them jointly went to the President of the Panchayath, however, he was not available.
27. Next day morning, once again they went to Panchayath and they informed to Anganawadi and other Associations and Organisations. The people of the Association took the victim girl to hospital at Hunasuru and brought the police to the hospital. She gave a complaint to the police, which she has identified at Ex.P-1.
28. The witness has further stated that, on the next day, the Police visited their house and at the spot shown by her, they conducted a mahazar as per Ex.P-2. The Police had also taken PW-1 to the Court at Hunasuru, there her statement was recorded in her presence. The witness also stated that the clothes worn by the victim girl at the time of the incident, including tights, the school uniform dress, were collected by the Police by drawing a mahazar as per Ex.P-3. The witness has identified those clothes at MO-1 to MO-3.
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CRL.A No.160 of 2018
29. PW-3, the father of PW-1, has stated that on the date of the incident, himself, his mother and wife were all away from home during day time on their works. After returning from school, PW-1 was sitting in front of the house on a platform attending to home-work given by the school. His two minor sons were away from the home for playing. He returned home in the evening at about 6.00 p.m. and saw that PW-1 was sitting as though she was frightened and blood stains were found on her thighs. At his enquiry, PW-1 told him that accused stating that he would give her a guava fruit, had taken her to his house and tied her moth with a cloth, laid upon her and had committed sexual assault upon her. He also stated that PW-1 told him that accused alarmed her not to reveal about the incident to anybody, otherwise, he would kill her. At the time of the incident, PW-1 alone was at home since his mother had been to fetch some spinach and his wife had gone out to fetch some drinking water.
The witness has further stated that they contacted Panchayath people and at their advise, they proceeded to
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CRL.A No.160 of 2018the Police Station. While they were going to the Police Station, uncle of the accused by name Sridhar came there and requested them not to lodge a complaint and that they can settle the matter within the village itself. He secured the treatment for the girl in a private hospital and brought them back. Further, on the same day afternoon, a person from Women Organisation at Hunasuru came home and took PW-1 to Government Hospital at Hunasuru. The police also came to the said hospital. They went to the Police Station and lodged a complaint.
30. The second set of witnesses whom the prosecution examined in its support are PW.4, PW-5, PW-6 and PW-7. PW-4 (CW-14) Smt.Gayatri is the Chairman of Kattelmalavadi Grama Panchayath. According to PWs.2 and 3, after coming to know about the incident, they had approached them, who after hearing about the incident, advised PWs.2 and 3 to lodge a police complaint and also the Women Helpline Centre officials visited the house of the victim and taken the victim girl to hospital.
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CRL.A No.160 of 2018However, this witness in her examination-in-chief itself has stated that she does not know PWs.1 to 3 and have never seen them. She pleaded her total ignorance about the alleged incident and her role in it. Even after treating her as hostile, the prosecution could not get any support from her.
31. PW-5 (CW-16) Smt.Latha, Superintendent in the office of the CDPO, Hunasuru, has stated that on the date 31.08.2015, in the evening between 7.45 to 8.00 p.m., through phone she received a call informing about accused committing the rape upon the victim girl in Kattemalalvadi village. Next day after going to her office, she informed the same over the phone to Women Helpline Centre at Hunasuru. Accompanied by CW-18, she visited the house of PW-1 at Kattemalavadi village. She collected the information from her parents about the incident who told to her that the accused had committed rape upon PW-1 by taking her to his house on the pretext of giving her a fruit. The witness has further stated that taking the victim girl and her parents, she went to General Hospital at
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CRL.A No.160 of 2018Hunasuru and got the child examined by Dr.Meenakshi. The women Police Constables were also present at that time.
Even in her cross-examination, she adhered to her original version.
32. PW-6 (CW-17) Smt.Savitha, the close Consultant in Women Helpline Centre coming under CDPO office, Hunasuru, has stated that, on 01.09.2015, PW-5 telephoned to their Women Helpline Centre and informed about the alleged incident. She was asked to visit the said village immediately. Accordingly, she joined by PW-5 and one Smt.Mubina (PW-7), went to the house of the victim girl at Kattemalalavadi village. By enquiry with the parents of the girl, they came to know that the accused on the pretext of giving some fruit to the alleged victim girl, had taken her to his house and sexually assaulted her. It is then these people took the victim girl to Government Hospital, Hunasuru and also informed the Police. The mother of the victim girl lodged a complaint to the Police.
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CRL.A No.160 of 2018In her cross-examination, the witness denied a suggestion that after going to Kattemalalavadi Village, they came to know that girl had sustained injury on the previous day while playing and also they came to know that there was enmity between the family of the accused and the victim girl.
33. PW-7 (CW-18) Smt.Mubin Taj, an Anganawadi worker of Kattemalalavadi Village, in her evidence has stated that, at the request of a Co-worker of another Anganawadi by name Aruna, she joined by PW-5, PW-6 and one Ms.Shantha, a Aasha worker, went to the house of PW-3. There, they enquired with the parents of the victim girl and collected the details about the incident. They also took the victim girl to hospital for medical examination.
In her cross-examination, she gave more details as to who were all had been there, but, denied the suggestion that they came to know that the girl had sustained injuries by a fall while playing.
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34. PW-9 (CW-23) Dr.Meenakshi, a Senior Specialist at General Hospital, Hunasuru, at the relevant point of time, in her evidence has stated that on 01.09.2015, in the afternoon, she examined the alleged victim girl in the case. She did not notice any external injuries on the body of the girl. However, there were small abrasions near the posterior Forchette. In the genital organ, there was tenderness, but, there was no bleeding and pubic hair was absent, but, hymen was intact.
She further stated that, after going through the entries in the MLC register and the observations made in the clinical examination of the girl, she opined that there is no sign suggestive of vaginal intercourse, but, there is sexual assault. Stating that she has issued a Medical Certificate in that regard, she has identified the same at Ex.P-6.
35. The case of the prosecution is that, while parents of PW-1 were not in their house, the accused went there and enticed PW-1 to go to his house, so that, he would give fruits to her to eat. Accordingly, she went to the
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CRL.A No.160 of 2018house of the accused, where the accused after tying her mouth with a cloth, lying upon her, subjected her to penetrative sexual assault. The house of PW-3 - the father of PW-1, and the accused are stated to be situated opposite to each other, divided by a road in-between. PW-3 in his cross-examination has stated that, adjacent to the house of the accused, there are the houses of one Srinivasa and Venkatesha. Accordingly, adjacent to his house, there are houses of another Srinivasa and one Mallaiah. Whatever these people speak in their house can be heard by adjacent house, same is the case in the house of the accused also. He also admitted a suggestion as true that, if anybody comes to his house or to the house of the accused, the neighbours would come to know about the same.
36. Under the said circumstances, except the say of PW-1 that the accused had gone to her house and asked her to come to his house, there are no other evidence, including by other witnesses on the said aspect. Even the evidence of PW-2 and PW-3, the parents of PW-1, is also
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CRL.A No.160 of 2018based upon the version of PW-1 said to have been stated before them. If according to PW-3, there are several adjacent houses to the houses of both the accused and himself and the adjacent house persons would come to know of any person visiting the houses of either the accused or PW-3 respectively and also any talking made in a house can be heard in the adjoining house, then, there were good number of witnesses available to the Investigating Officer to speak about the accused going to the house of PW-1 and after his alleged enticement, PW-1 also going to the house of the accused on the date of the incident. However, for the reasons best known to him, the Investigating Officer has not placed any evidence before the Court through the neighbours to show that the accused had been to the house of PW-1 and later, PW-1 had gone to the house of the accused.
37. Secondly, PW-1 at one place has stated that after she going to the house of the accused, he tied her mouth with the cloth and removed the dress worn by her and thereafter slept upon her. However, in her cross-
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CRL.A No.160 of 2018examination, she has stated that after she going to the house of the accused, she had yelled. This once again creates some doubt to believe her version in the manner stated by her, because, firstly, if her mouth had been tied with a cloth, how can she cry, has not been elicited by the prosecution in the evidence of any of the witnesses.
38. Thirdly, even if it is believed that PW-1 yelled after going to the house of the accused, then, the neighbours to the house of the accused should have necessarily heard the same. It is for the reason that, PW-3 - the father of PW-1, in his cross-examination, as observed above, has stated that both his house and house of the accused are attached with adjacent houses and that whatever is spoken in one house can be heard in the adjoining house. Therefore, when the mere spoken words itself can be heard by the adjacent house people, then, obviously the yelling or crying of PW-1- the girl, made if any, should have necessarily been heard by the people in the adjacent house. As such, it creates a doubt to believe the evidence of PW-1.
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CRL.A No.160 of 2018
39. Fourthly, PW-1 in her cross-examination has stated that after she returned from the house of the accused, she told to her grand-mother in the house that Abhi (the accused) after calling to his house to collect a guava fruit, closed the door, tied her mouth with a cloth and then slept upon her. After she revealed the incident to her grand-mother, her parents who had gone out for coolie work, returned home. Before that, they were not in the house.
PW-2, the mother of PW-1 in her evidence has stated that, before her daughter would come from the house of the accused, she had already been returned to home by fetching some water from Borewell. It was she who asked trembling PW-1 as to what happened and then PW-1 narrated the incident to her. Without knowing what to do, she washed the private part of PW-1, applied some oil to it and till her husband and mother-in-law returned to home, she sat in the home while weeping. After both her mother-in-law and husband returned home, she narrated the incident to them.
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40. Even PW-3, father of PW-1, also has stated in his evidence that at the time of the incident, both his wife and mother were away from the home and his mother had gone out to fetch some spinach. Thus, according to PW-1, when she returned after the incident, her grand-mother was already at home, whereas, according to PW-2, the mother of PW-1, the grand-mother of PW-1 (mother-in- law of PW-2) was not at home and she came home later. This variation in the evidence of PW-1 and PW-2 about the presence of grand-mother of PW-1 in the house also creates a doubt in the case of the prosecution. If PW-2, the mother's evidence is accepted, then, her mother-in- law (grand-mother of PW-1) is to be taken as not present when PW-1 is said to have returned from the house of the accused. In such an event, the evidence of PW-1, who is child, appears to be not safe to believe. Therefore, about the presence of her grand-mother in the house, when the evidence PW-1 if considered to be not safe to believe, then, the evidence of very same witness about the
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CRL.A No.160 of 2018occurrence of the alleged incident also appears to be not safe to believe.
41. Fifthly, the above observation gains more support from the very evidence of PW-1, for the reason that, in her examination-in-chief, the witness stated that the accused laid upon her and removed her tights. She felt pain and blood came from her private part, whereas, the very same witness in her cross-examination clearly and specifically stated that when she returned from accused house, nothing had happened to her. This also go to show that, PW-1 being a child witness of aged about 7 years 8 months, was not clear in her statement and was oscillating between her different versions.
42. Sixthly, even if it is taken that some incident has happened, the same according to PW-1, as stated in her examination-in-chief, is that accused by laying upon her, removed her tights, so also, his nikkar. Except this, nothing more is stated by PW-1 about the further acts committed, if any, by the accused, like accused either inserting or attempting to insert his penis in the
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CRL.A No.160 of 2018vagina of PW-1 or touching the private parts of the girl or any other misdeeds or wrongful acts. When the witness, though was a child, was found to be capable of understanding the questions and give answers to it, and it is only thereafter, she was permitted to be proceeded with for examining her as a witness, nothing had prevented the prosecution to put relevant and necessary questions to the witness to elicit the details of the alleged act said to have been committed by the accused attracting the alleged offences. However, for the reasons best known to it, the prosecution did not elicit those necessary details from the witness.
Secondly, even if the evidence of PW-1 is taken on its face value and as believable, still, there is nothing in the evidence of PW-1 suggestive of accused either inserting his penis or attempting to insert his penis in the genital organ of PW-1 or committed any act which can be called as an act of sexual assault.
43. Seventhly, PW-1 in her cross-examination has stated that while she was returning home from the house
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CRL.A No.160 of 2018of the accused, some people were fetching water from a tap adjacent to her house. She informed them about the act committed by the accused. She also informed Smt.Radhakka, who was fetching water, about the incident.
If the said evidence of PW-1 is accepted, then, even before she claims to have revealed about the incident to her grand-mother or mother in her house, the witness had already informed about the incident to few people who were fetching water near her house, including one Smt.Radhakka. However, for the reasons best known to it, none of those persons who could have been the best and independent witnesses been either cited as charge sheet witnesses or examined by the prosecution. On the contrary, the prosecution confined examining only the family members of the alleged victim girl to prove the alleged act said to have been committed by the accused. Thus, in spite of availability of independent and neighbouring witnesses, the prosecution did not make use of it.
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44. The above act of non-examination of independent witnesses though available not only creates a doubt in the case of the prosecution, but, also strengthens the defence taken up by the accused that there was regular quarrel taking place between the family of the accused and the victim. There was also political enmity between them, as such, a false case has been hoisted against him. Though PW-1, PW-2 and PW-3, to whom the said suggestion was made, have not admitted the same to be true, however, PW-1 the alleged victim girl in her cross-examination has stated that her parents were not in speaking terms with the family members of the accused as they had quarrelled earlier with respect to the flow of waste water in a channel in front of their house.
45. In the later part of her cross-examination, the very same witness has stated that since beginning, her grand-mother was also not talking with the accused and his mother. This shows that the family of the accused and the victim girl were not in cordial terms and they were not in a speaking terms. Even PW-2, mother of the victim girl
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CRL.A No.160 of 2018also has stated in her cross-examination that they were not speaking much with the family of the accused. Furthermore, PW-3, the father of PW-1, also in his cross-examination has stated that since three years prior to lodging the complaint in this case, the mother of the accused was complaining his wife (PW-2) that she had kept her (the mother of the accused) husband, as such, these people were not talking much with the members of family of the accused.
46. These statements made by PW-1, PW-2 and PW-3 would go to show that their relationship with the family of the accused was not good. Moreover, they were not in talking terms with each other. Under the said circumstances, when both the families were not in talking terms and the same was known even to PW-1 also since she herself has stated that in her cross-examination, then, a doubt arises as to how come PW-1 would go to the house of the accused merely because of his alleged invitation to her. On the other hand, it strengthens the defence taken up by the accused that because of the
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CRL.A No.160 of 2018existing enmity, the complainant must have lodged a false complaint against him.
47. Seventhly, the evidence of PW-9, the Doctor as a medical evidence also would not be of a great help to the prosecution. The doctor has clearly stated that she did not notice any external injury on the body of PW-1, however, she noticed in her genital organ, presence of small abrasions near posterior Forchette, there was tenderness, but, not bleeding and hymen was intact.
The said finding of the doctor creates a doubt in believing the evidence of PW-2, the mother of the girl that there was bleeding from the vagina of her daughter (PW-1) after the incident. Furthermore, even PW-9 also has stated that there were no signs of suggestive vaginal intercourse, but, there was evidence of sexual assault. Hence, even the doctor also has ruled out the possibility of the alleged rape or penetrative sexual assault. Though the doctor has noticed the signs of sexual assault, but, as observed above, the evidence of PW-1 is very vague and not clear even to hold that the accused has committed
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CRL.A No.160 of 2018sexual assault upon her. It is also for the reason that, apart from showing greater variations in her evidence at different places, the witness (PW-1) has stated in her cross-examination that the persons who had taken her to the Court had told her as to what she has to state in the Court. Even the Police who had accompanied her also has stated her as to how it has to be stated in the Court. She has done as to how they had stated to her.
The said statement of PW-1 would go to show that, at the earliest point of time that even while recording her statement under Section 164 of Cr.P.C., she was tutored as what to say in the Court and how to say.
48. The corroboration of the oral testimony of a child witness is not a rule, but, a measure of caution and prudence. We have to consider the evidence of PW-1 - victim with the evidence of other witnesses. PW-1 who at the time of occurrence of the incident, was aged about 7 years and she is the only solitary witness.
Further, the evidence of a child witness cannot be rejected per se. But, as a rule of prudence, we have to
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CRL.A No.160 of 2018consider such evidence with scrutiny and only on being convinced about the quality of the statement and its reliability, the conviction can be based. The fact that PW-1 is the child witness, it would require the Court to scrutinise her evidence with care and caution. Such a scrutiny has shown that PW-1 was shown to have not withstood the test of cross-examination and there were several infirmities in her evidence.
49. Therefore, the prosecution cannot claim a conviction based upon her testimony alone. From the perusal of testimony of PW-1, we have to ascertain the possibility of child-PW-1 being tutored by her parents and grand-mother. In the light of proving the tutoring or using PW-1 for ulterior purpose of prosecution, we cannot rely upon the testimony of PW-1 and her testimony does not inspire the confidence of the Court for the purpose of holding the accused guilty of the offences alleged.
50. Under the above circumstances, when the evidence of PW-1 does not inspire confidence to believe and the evidence of PW-2 and PW-3 being hearsay
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CRL.A No.160 of 2018witnesses upon what PW-1 is said to have stated to them, the evidence of these three material witnesses would not help the prosecution in proving the alleged guilt against the accused. Under that circumstance, the evidence of the second set of witnesses of the prosecution i.e., PW-5, PW-6 and PW-7 also would be of no help to the prosecution in proving the alleged guilt against the accused. Their evidences even if it is taken on its face value can only establish that hearing the information about the alleged incident of sexual assault upon a minor girl, PW-5, PW-6 and PW-7 visited the house of PW-3, collected information from them and helped in taking the alleged girl (PW-1) to the hospital and in mother of the victim girl (PW-1) lodging a police complaint with respect to the alleged incident. The said evidence may be corroborative of the post alleged event, but, cannot be a proof of alleged incident.
51. Since the Special Court after analysing the evidence placed before it in its proper perspective has come to a right finding, holding that prosecution has failed
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CRL.A No.160 of 2018to prove the alleged guilt against the accused, we find no reasons to interfere in it.
52. Accordingly, we proceed to pass the following:
ORDER The Criminal Appeal stands dismissed as devoid of merits.
Registry to transmit a copy of this judgment along with Special Court's records to the concerned Special Court without delay.
Sd/-
JUDGE Sd/-
JUDGE bk/