Karnataka High Court
Shri. Dadakhalandar vs State Of Karantaka on 22 March, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO.100162/2015
BETWEEN
SHRI. DADAKHALANDAR
SHAREEFSAB CHINCHALI,
AGE: 22 YEARS, OCC: PAINTER,
R/O: YELAVATTI, TQ: SHIRAHATTI,
NOW AT MELINA PLOT, MULAGUND,
DIST: GADAG.
... APPELLANT
(BY SRI AHAMADALI RAHIMAN SHAH, ADV.)
AND
STATE OF KARANTAKA
(THROUGH MULAGUND POLICE STATION,
OF DISTRICT GADAG)
REP. BY THE SPP HIGH COURT
BENCH, DHARWAD.
... RESPONDENT
(BY SMT. VEENA HEGDE, HCGP.)
THIS CRIMINAL APPEAL IS FILED U/S.378(1) OF
CR.P.C. SEEKING TO CALL FOR THE ENTIRE LOWER
COURT PAPAERS AND RECONSIDER THE MATERIAL ON
RECORD AND SET ASIDE THE JUDGMENT OF CONVICTION
DT:01/04/2015 PASSED BY THE COURT OF THE PRL.
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DISTRICT & SESSIONS JUDGE, GADAG IN SPL. S.C.
(POCSO) NO. 14/2013 ON ITS FILE AND ACQUIT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant is the accused in Special Sessions Case (POCSO) No.14/2013 on the file of Principal District and Sessions Juge, Gadag. After due trial, the appellant is convicted and sentenced for the offences punishable under Sections 376(2)(f), 506 of Indian Penal Code and under Section 6 of POCSO Act, 2012 and accused was sentenced to undergo 7 years Rigorous imprisonment and pay fine of Rs.2,000/- in default to undergo simple imprisonment for 6 years, for the offence punishable under Section 4 of POCSO Act, 2012 and also sentenced him to undergo simple imprisonment for the offence punishable under Section 506 of IPC.
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2. The brief factual matrix which emanate from the records which led to lodging of the charge sheet against the accused are that:
The Prosecutrix PW-2 aged about 14 years an unmarried girl, was residing along with her mother PW-3, and grand mother PW-4 at Mulagund. Accused- Dadakalandar is also a resident of the same village, who was earlier to the incident known to the prosecutrix. The prosecutrix had left the school who studied up to 6 standard. In this background, it is the allegation of the prosecution that on 10.01.2013 in the afternoon at about 12 noon the prosecutrix was proceeding to a shop in order to purchase some shampoo. The accused taking advantage of such situation who was residing near by the house of the prosecutrix incited her to go to his house and forcibly he grabbed and dragged her on the pretext that he would like to marry her. Though she tried to escape, the accused was successful in grabbing and gagging her mouth and took her inside the house. It is further alleged that he removed the wearing apparels of the girl and he also 4 became nude and thereafter, he committed the sexual activity with her forcibly. After committing such act, it is alleged that he gave her a threat of dire consequences of killing her if she discloses the said matter before anybody.
3. Thereafter, complaint was lodged before police on 17.01.2013 after lapse of 7 days from the date of the incident explaining some delay in lodging the complaint. The police after registration of the case, investigated the matter and submitted a charge sheet before the Court. The accused was arrested on 18.01.2013 and since then he has been in judicial custody. As of now, he has already undergone more that 4 years of imprisonment in the jail.
4. After committal proceedings the Court has secured the presence of the accused from the judicial custody and framed the charges against the accused for the offences punishable under Sections 376(2)(f) and 506 of IPC and also under Section 4 of POCSO Act, 2012.
5. The prosecution in order to bring home the guilt of the accused, examined as many as 23 witnesses i.e. 5 PWs.1 to 23 and got marked Exs.P-1 to P-20. Exs.D-1 to 4 are also marked during the cross examination of the witnesses. MOs.1 to 8 are the Material Objects marked through the prosecution witnesses. The court has also examined the accused under Section 313 of Cr.P.C. and recorded his answers. After appreciating oral and documentary evidence on record, the trial Court has concluded that the prosecution has proved the case beyond reasonable doubt and accordingly convicted and sentenced the accused as noted supra.
6. The learned counsel for the appellant strenuously contends before this Court that, most of the prosecution witnesses have turned hostile. Only the interested testimony of the victim and her mother and the evidence of the Investigating Officers have been relied upon by the trial Court for the purpose of convicting the accused. The learned counsel also contends that the material evidence available on record that is the earlier statement of the accused before the mother of the victim and also the DNA 6 test report which excludes the paternity of the accused with reference to the fetus of the victim girl have not been properly appreciated by the trial Court. It virtually ignored the material evidence and not recorded appropriate reasoning with regard to the innocence of the accused person.
7. The learned counsel also contended that there is a long delay in lodging the complaint that itself is fatal to the prosecution in this case as the grounds for delay or the explanation offered by the prosecutrix and her mother has not been properly supported by any of the witnesses. Therefore, such delay cannot said to have been explained properly. Therefore, the delay itself is sufficient to discard the evidence of the prosecutrix.
8. The learned counsel for the appellant strenuously contends before this Court that the witnesses who have examined even for the spot mahazar and recovery of incriminating articles etc., have turned hostile to the prosecution. Therefore, he contends that the trial Court 7 has not properly appreciated the materials on record and not given the benefit of reasonable doubt in favour of the accused. Therefore, he requests this court to re- appreciate the evidence on record and requests this court to acquit the accused.
9. Per contra, the learned High Court Government Pleader submitted that, the victim's age is hardly 13-14 years at the time of incident. She has pin-pointed that the accused is responsible for the fetus in her womb and she has vividly stated about the incident, as to how it has happened. Considering the age of the victim, there is no room to dis-believe or discard her evidence. Further, she has submitted that delay is not properly explained and the reason given by the trial Court to condone the delay in filing the FIR cannot be easily brushed aside. Further, she contends before this Court sofar as the DNA test is concerned, that DNA test is not a conclusive evidence, at the most it may create some doubt with regard to the paternity of the accused, but it does not altogether discard 8 the evidence with regard to the incident. Therefore, the learned High Court Government Pleader submits that the trial Court considering the above said grounds by giving reasons convicted and sentenced the accused and there is no room for interference by this court. Therefore, she requests this court for dismissal of the appeal.
10. Having heard the above said arguments, after re-evaluating the material on record, the point that would arise for the consideration of this court is:
"Whether the appellant has made out any reasonable or substantial ground or doubt in the prosecution story to interfere with the judgment of conviction and sentence passed by the trial Court.?
11. In order to answer the above question, it is just and necessary to have the brief evaluation of the prosecution witnesses.
12. Though the prosecution has examined as many as 23 witnesses, but most of the witnesses, as argued by 9 the learned counsel for the appellant, have turned hostile. Even otherwise, let me have brief cursory look at the evidence of the prosecution witnesses.
13. PW-1 Dr. H. Nagaraj, Medical Officer, District Hospital, Gadag, has examined the victim girl on 17.1.2013 at about 7.35 p.m.,. He has given his opinion as per Ex.P-1 and he has also examined the accused and given his opinion as per Ex.P-2. He has given the medico legal details about the victim girl and the accused. It requires to be examined in detail.
PW-2 is the victim girl. She has supported the case of the prosecution.
PW-3 Hussainbi Hageda is the mother of the victim girl. She is a hearsay witness but she has stated about the other circumstances of the case.
PW-4 Julekha Mulla, is the relative of PW-3. She is also a hearsay witness. Her evidence is not so significant as she received the information from PW-3 only and also she spoke about some panchayath, inquiring with the 10 accused and that the accused has to pay an amount of Rs.10,000/- etc., PW-5 Abdul Khader Sab, who was a member of a Jamath, has stated that after the incident, the victim and her mother had gone to their Jamath, but they said that the marriage between accused and the victim is not possible because the victim girl is a minor and suggested to lodge a complaint. PW-6 Mahaboobsab Doddamani, has also stated in the similar fashion as that of PW-5.
PW-7 Shanthappa Kuthani, who is the friend of the accused person and that on 10.1.2013 when he went to the house of the accused, the accused was inside the house and victim was also inside the bathroom and that accused told that he would marry the said girl and also he has told him that he had sexual intercourse with the said girl, but this witness has not supported the case of the prosecution, but turned hostile.
PW-8 Mahadevappa Kanavi and PW-9 Mahanthesh Kanavi, are the panch witnesses to Ex.P-7 panchnama, spot mahazar.
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PW-10 Noorahamad Mujavar and PW-11 Babajan Mujavar are the panch witnesses to Ex.P-8 panchnama, under which the police have recovered certain articles MOs.2 to 4 which are the clothes of the victim girl. But both of them have turned hostile.
PW-12 Mohammad Haneef Patil and PW-13 Davalsab Kalif are the panch witnesses to Ex.P-9 under which MOs.5 to 8 were recovered by the police. They also turned hostile to the prosecution.
PW-14 Prakash, a Police Constable No.1062 has taken the accused to the Hospital for examination. There is no significant evidence from this witness.
PW-15 Hasansab is a member of the Jamath.
Likewise PW-16 Devendrappa, who is a senior in the village. Both of them have turned hostile to the prosecution. They did not say anything about the panchayath convened as stated by PWs.5 & 6.
PW-17 Hanumanthappa is a Police Constable who carried the FIR to the jurisdictional Magistrate. 12
PW-18 Nirmala, is the witness who is examined to establish that, the accused after the incident, requested this lady to talk to the complainant expressing his willingness to marry the victim girl, but this witness has also turned hostile to the prosecution.
PW-19 Mahanthgoud, is a Asst. Engineer who has drawn the spot sketch of the place of incident.
PW-20 Mahaboobi is the lady Police Constable who took the victim girl to the Hospital on 17.1.2013 for examination. There is no dispute sofar as this aspect is concerned.
PW-21 Nagaraj, while working as CPI, Rural Police Station, Gadag has investigated the matter and submitted charge sheet. He has also stated about the taking of the blood sample and removing of the pregnancy with the permission of the jurisdictional Magistrate and sending the same to the DNA test.
PW-22 Lalsab, while working as PSI, Gadag Rural Police Station has stated about the registration of the FIR and sending the FIR to the jurisdictional Magistrate. 13
PW-23 M. Jagadeesha is the CPI, Gadag Rural Circle, Gadag, has stated about taking up of the blood sample in the presence of the District Health Officer for the purpose of forwarding the same to DNA test profile as he has identified the said forwarding note as per Ex.P-5.
14. Out of all the above said witnesses, the evidence of the victim as well as the doctors evidence coupled with the other circumstantial evidence play a dominant role to ascertain whether the prosecution has proved the case beyond reasonable doubt. Before adverting to the important evidence on record, let me have a brief look on the judgment of the trial Court as to how the trial Court has come to that particular conclusion with regard to the commission of the offence by the accused.
15. At paragraph 42 of its judgment, the trial Court has observed with regard to the explanation offered with reference to delay in lodging the complaint. The court has observed that it is not an exaggerated account of the prosecutrix. There is 7 days delay. Of course, in the 14 villages immediately, the people may not go to the Police Station, they will deliberate and consult with the seniors in the family and thereafter they will take a decision. Therefore, the trial Court has considered the said conduct of the victim and her mother as reasonable and held that was sufficient to condone the delay in lodging the complaint. Therefore, it held that the delay is not fatal.
16. Further, it also considered the DNA test and also considered the termination of pregnancy with the permission of the court dated 29.4.2013 and thereafter, the court has come to the conclusion that the DNA test excluded the paternity of the accused, but it still says that the Hon'ble Apex Court in several cases cautioned the trial Courts while recording the findings about the character of the rape victim. The findings which have large repercussions with regard to the future of the rape victim is concerned. Therefore, the court has to maintain some restraint. Perhaps that may be the reason, the court 15 though excluded the paternity of the accused, still committed him.
17. Now, let me go back again to the evidence of the prosecutrix. Whether her evidence coupled with the other material on record is trustworthy for acceptance and credible and it can be safely said that the prosecution has proved the case beyond reasonable doubt. It is the fundamental basic principles of Criminal jurisprudence that the prosecution has to prove the case beyond reasonable doubt. Any reasonable doubt occurs to the mind of the court and if that doubt is sufficient to totally uproot the case of the prosecution or suspicion occurred, if it is not satisfactorily explained by the prosecution, under all those circumstances, the benefit of such doubt should be extended in favour of the accused. In this background, the evidence of the victim girl if it is seen, of course in the examination in chief, she has categorically stated that on the date of the incident, the accused dragged her to his house and removed her garments and he also removed his 16 garments and committed sexual intercourse with her. Because of that, she became pregnant only due to the act of the accused and thereafter, at the instance of the police, she get herself aborted and she has given blood sample for DNA test profile. This clearly indicates that the victim girl is very sure about the conduct of the accused and that he is responsible for the fetus in her womb. Further coming to the cross examination of the girl, she has categorically stated that when the accused dragged her, she screamed for help, but she did not do anything to the accused. She has also admitted that about 4-5 houses were there near the place where the accused dragged her to his house. There was a shop near her house and there they stayed for 10-15 minutes, but she did not talk to the accused at that particular point of time. She made attempts to run away from the clutches of the accused, but he did not allow her to go anywhere. She has also specifically stated that earlier to the incident, she was not knowing the accused at all. But the other evidence available on record discloses that the accused is of the same village and residing nearby 17 the house of the victim girl. She has further stated that the accused after removing her garments, he removed his garments and she did not scream for help and she did not cause any injury to the accused by scratching his face or other parts of his body. At that point of time, some persons were also came to that particular house, but she did not remember who were those persons, very peculiarly the accused has kept her in the bathroom and he talked to some people and thereafter allowed her to go out from the house. She came back to the house at about 5.00 p.m., Her mother was alone in the house and she disclosed the same immediately about the incident to her mother. She also admit that the Police Station was at a distance of 1.5 furlongs from their house. She further deposes that on the same day, they received a news that one of their relative died in Bylahongala, they also had been to that place to attend the obsequious ceremony and on that day, she has disclosed the incident to the senior members of that village in that particular lane where the complainant and her mother were residing. It is very pertinent to note here 18 that they all discussed about the incident and deliberated upon the same and thereafter taken a decision to lodge a complaint. Therefore, it is not a complaint lodged abruptly before police and it is after due deliberation, the complaint came to be lodged. She has further stated that on the next day itself, they had been to the Police Station to lodge a complaint and in fact the police have taken the complaint and on the second day, the police have sent the victim to the Hospital for examination and the doctor examined the private part of this girl and taken the clothes of the victim girl.
18. The above said evidence clearly discloses that the victim girl and her mother though were aware of the incident and they were having knowledge that immediately they have to go to Police Station and lodged a complaint with reference to the incident taken place. According to them, they have lodged the complaint on the next day and on the second day itself, the victim was sent to the Hospital for examination. This evidence altogether 19 deviated from the statement made by them before police. But, according to the complaint averments and certain records, the victim girl and her mother and other witnesses went to the Police Station after seven days for the purpose of lodging the complaint. Therefore, the explanation for not lodging the complaint is a doubtful circumstance in this case because, according to the victim, on the very next day, they went to the Police Station and lodge a complaint. Doubt arises as to why the police have not registered the case and investigated the matter, if at all such complaint has been given. Otherwise, after going to the police, they might have received some information as to what they have to do first. Perhaps, thereafter, they might have went to Jamath before lodging a complaint in order to secure the accused person to see that whether the accused would marry the victim girl or not and thereafter to take steps to prosecute him by means of lodging a complaint. This in my opinion creates a serious doubt with regard to the conduct of the victim girl and her mother in not going to the Police Station in lodging the complaint. 20 Further, she has stated that they had been to the Muslim Jamath and they told these witnesses that it is not possible to get her married with the accused because she was a minor.
19. The evidence of this victim girl though appears to be the statement made against the accused with all certainty, but the same has to be tested by other evidence on record. Of course, a presumption has to be drawn in favour of the evidence of the prosecutrix that the evidence of the said girl has to be presumed to be true, unless it is rebutted by means of other evidence on record. Therefore, it is incumbent upon the court to test the veracity of the evidence of the victim girl with other materials on record.
20. The mother of the victim girl PW-3 has stated that she received the information from the victim girl on the same day of the incident at 5.00 p.m., The victim has stated that the accused has ravished her. When the victim was telling this to the mother, at that time, the friends of 21 accused were also present, but none of such witnesses have been examined before the court. Further added to that, the mother has stated that she personally went to Jamath along with victim girl and lodged a complaint and the Jamath people have secured the presence of the accused and requested the accused to marry victim girl. She also admitted in her examination in chief that she has personally enquired the accused and requested him to marry the victim girl but at the earliest point of time, the accused told the said lady that he never touched her daughter. Therefore, there is no question of marrying her. But on the other hand, he has accepted to pay an amount of Rs.11,000/- to the victim girl. Perhaps, that may be the reason, the accused might have accepted to pay the amount to avoid unnecessarily lodgment of any complaint against him. This cannot be taken as an admission. He has accepted the incident and therefore, he was prepared to pay an amount of Rs.11,000/-.
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21. In the course of cross examination also, she has categorically admitted the same factual aspects that they made all their attempts to see that accused marries the victim girl. She also requested one tailor in their village to mediate with the accused to convince the accused to marry the victim girl. But the said mediation appears to have been failed and thereafter, they went to the Police Station and lodged the complaint. She also admitted that victim girl became pregnant and thereafter, the pregnancy was terminated with the permission of the court and the DNA blood samples were taken and sent for DNA test profile.
22. From the evidence of this witness, it is clear that at the earliest point of time itself, the accused never accepted or admitted the guilt or any relationship with this victim girl at any point of time. Further, he has categorically stated that he never touched the victim girl. Therefore, there is no question of marrying her. This is 23 the earliest defence taken up by the accused before the mother of the victim girl.
23. The other witness PW4 Julekha M. Mulla is the relative of PW-3. She has stated that the accused has accepted to pay an amount of Rs.10,000/-, but he refused to marry the victim girl. In the course of cross examination also, he has admitted that the victim became pregnant but she denied the suggestion that the accused is not responsible for the said pregnancy. There is no much evidence in order to implicate the accused is forthcoming from the evidence of this witness.
24. PWs.5 & 6 who are the members of the Jamath, have stated before the court that PW-3 Hussainbi S. Haged and the victim girl have told the Jamath people that the accused has ravished the victim girl and they requested the Jamath to see that the marriage between the accused and the victim is performed. These two witnesses have stated that they only secured the accused and the complainant to the Jamath and they told that the victim 24 girl is a minor. Therefore, there is no possibility of any marriage. Therefore, they told the victim and her mother to lodge a complaint. In the evidence of these two witnesses it is clear that there is no panchayath as such held between the complainant and her mother with the accused person. There is no whisper from the evidence of these witnesses that they secured the presence of the accused persons in order to convene any panchayath between them. Therefore, at any stretch of imagination, it cannot be called as a panchayath. It is only an advice to the victim girl and her mother to lodge a complaint. Therefore, the evidence of these witnesses do not help the prosecution in any manner. The witnesses PWs.7 to 15 as already noted are not relevant witnesses and they also turned hostile to the prosecution.
25. The other important witness is the doctor who has examined the victim girl. Dr. Nagaraj, PW-1 has stated that on 17.1.2013, he examined the victim girl and also requested the Gynecologist to examine the victim girl. 25 After the examination by the Gynecologist, he gave his report. As per the report, hymen was partially torn and not commented on the exact cause and time. He also stated that there was no evidence of blood stains or semen on the body of the girl and the sexual intercourse also cannot be confirmed. Though the FSL report was received on 28.12.2013, the doctors have not given any confirmed opinion with regard to any recent sexual intercourse. Likewise, they have given a certificate as per Ex.P-1.
26. Ex.P2 is the certificate pertaining to the accused and the opinion of the doctor is that there is no recent act of sexual intercourse. The evidence of the doctor and the certificate issued clearly goes to show that the doctor has not given any confirmed evidence with regard to any recent sexual activity, but it goes without saying that when the prosecution itself has produced the DNA test report it clearly discloses in corroboration with the evidence of the victim girl that she became pregnant and her fetus was removed with the permission of the court and the same 26 has been sent for DNA test profile. Therefore, sexual activity sofar as the victim girl is concerned is abundantly established before the court. The question is whether the accused has committed such an act has to be answered by the court.
27. The next important aspect that raises for consideration before this Court is with regard to the DNA test. As per the evidence of the investigating Officer PW- 21 Deputy Superintendent of Police, he has stated in the examination in chief that they have taken the blood sample of the accused victim and also the fetus and sent for DNA examination. In the course of cross examination, he has admitted that the doctors have given that there was no recent sexual activity with the victim girl and he also stated about the exclusion of the paternity of the accused from the DNA test. Likewise, PW-23 M. Jagadeesh, CPI, who forwarded the blood samples of the accused and the victim and also the fetus to the DNA test profile, he has stated that he has forwarded the said items 27 along with the letter marked at Ex.P5. He also categorically admitted that the DNA test discloses that the accused is not the biological father of the fetus of the victim girl.
28. Looking to the above said DNA test profile as well as the evidence of these witnesses, the DNA test profile which is marked at Ex.P-19 shows that a detailed discription has been given by the authority as to what are all the tests they have conducted on the blood sample of the accused, victim girl as well as the fetus of the victim girl. After thorough examination, it is categorically stated that the accused is excluded from being the biological father of the fetus of the victim girl.
29. Looking to the above said DNA test profile, of course, the learned High Court Government Pleader has submitted that the DNA test profile is having evidentiary value to the extent of 97% and the DNA test is not a conclusive evidence to the extent of 3%. The court agrees with the said submisison made by the learned High Court 28 Government Pleader. When such being the case, the prosecution has to explain as to how the benefit of 97% should not be given to the accused considering 3% on the other side, whether the prosecution case said to have been proved beyond reasonable doubt. The above said DNA test is not at the instance of the accused, but it is at the instance of the prosecution. The prosecution themselves have taken the permission of the Magistrate for termination of the pregnancy and they have taken the actual blood sample of the victim girl and as well as the accused and the fetus and they have been sent to the DNA test profile examination. The conduct of the accused shall also be taken into consideration, at the earliest point of time, he denied the relationship and he has specifically stated before the court that he never touched the victim girl and subsequently, he has offered his blood sample for the purpose of sending the same to the DNA test. The conduct of the accused have also to be taken into consideration at the time of testing the veracity of the evidence of the victim girl. Further, added to the above 29 said circumstance, throughout the evidence of the prosecution witnesses, prior to and after the lodgment of the complaint, the victim girl's mother and other witnesses have made all their efforts to perform the victim girl's marriage with the accused person. When the accused person according to them, denied to marry the said girl, then only they lodged the complaint. It cannot be easily brushed aside that the victim girl had some contact with some other person or boy and having come to know about the incident, the mother and other witnesses might have made efforts to see that the marriage of that girl takes place with the accused. When the accused denied such situation, then only may be for the purpose of coercing, the accused to marry the victim girl, they might have lodged the complaint. This situation cannot be easily over ruled. When such a situation is placed before the court, by means of evidence placed by the prosecution itself, the benefit of such doubt, in my opinion ought to have been given in favour of the accused. Of course, the trial Court is right in saying that the court should not venture upon to 30 give a title to the victim girl as having a loose character, but this court is not giving any opinion on the conduct of the accused but the materials indicates that the pregnancy of that girl is not by the accused, may be the activity of some other person. Merely because some other indicent might have also taken place, it does not mean to say that the girl is having a loose character every time. The fact remains that there must be some incident for her pregnancy.
30. Under the above said facts and circumstances, I am of the opinion that when such a doubtful circumstance are there, the benefit of doubt should have been given in favour of the accused. Hence, I am of the opinion that the appellant has made out a substantive ground to interfere with the conviction and sentence passed by the trial Court. Hence, the following:
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ORDER The appeal is allowed. Consequently, the judgment of conviction and sentence dated 1st April, 2015 passed in Spl.SC (POCSO) No.14/2013 is hereby set aside and the appellant is hereby acquitted of the charges levelled against him for the offence punishable under Section 376(2)(f) & 506 of IPC and Section 4 of POCSO Act, and the appellant/accused shall be released forthwith, if he is not required in any other case.
Registry is hereby directed to communicate the operative portion of this order to the concerned Jail authorities for the release of the accused.
Sd/-
JUDGE PL*