Karnataka High Court
The State Of Karntaka vs Saibanna S/O Chandram Halger And Anr on 8 March, 2018
Bench: S.N.Satyanarayana, B.Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8th DAY OF MARCH, 2018
PRESENT
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE B.VEERAPPA
CRIMINAL APPEAL NO.200133/2016
Between:
The State of Karnataka
Through the Chittapur Police Station,
Rep. by the Addl. SPP,
High Court of Karnataka, Kalaburagi Bench
Kalaburagi.
... Appellant
(By Sri Prakash Yeli, Addl. SPP)
And:
1. Saibanna S/o. Chandram Halger
Age: 28 years, Occ: Driver,
R/o. Kardal, Tq. Chittapur,
Dist. Kalaburagi.
2. Dattu Kumar S/o. Sidramappa Yagapur
Age: 38 years, Occ: Agriculture,
R/o. Katammadevarhalli,
Tq. Chittapur.
... Respondents
(By Sri Hanamanth M. Gilki, Advocate for R1;
Appeal against R2 stands abated V/o. dated 5/1/2017)
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This Criminal Appeal is filed under Section 378 (1) & (b)
of Cr.P.C. praying to grant leave to appeal against the
judgement and order acquittal dated 16.04.2016 passed by
the II Additional Sessions Judge at Kalaburagi, in Special
Case (POCSO) No. 40/2014 thereby, acquitting the
accused/respondents for the offence punishable under
sections 366, 376 (2) (i), 506 and 114 of Indian Penal Code
and Section 6 and 17 of the POCSO Act, 2012 and etc.
This appeal coming on for Admission, this day,
B.VEERAPPA, J., delivered the following:
JUDGMENT
This appeal is by the State against the order dated 16.04.2016 made in Special Case (POCSO) No.40/2014 on the file of the II Additional Sessions Judge, Kalaburagi acquitting accused Nos.1 and 2 for the offences punishable under Sections 366, 376(2) (i), 506 and 114 of Indian Penal Code and Sections 6 and 17 of POCSO Act.
2. It is the case of the prosecution that the PW.1 - Narasanna the father of the prosecutrix has -3- lodged an oral information as per Ex.P1 alleging that he has seven children and the prosecutrix is the fourth child and she was aged about 15 years, on 20.07.2014 in the afternoon, he along with his wife PW.3 - Mahadevi went to Chittapur for marketing and his elder sons had gone to field for cultivation. When they returned to home at about 6.00 p.m., the prosecutrix was not found at home and on making enquiry to another daughter Devika - CW.5, she told that the prosecutrix had been to answer the nature call at about 5.00 p.m. and not returned to home. He along with PW.3 searched for prosecutrix but she was not traced and on making enquiry to Parvathi - PW.4, she revealed that she had noticed accused No.1 - Sabanna taking the prosecutrix with him on that day at about 5.10 p.n. near Basaveshwar temple. He searched for her at Bommanahalli, Annikeri and Halakatti but, she was not traced. The complainant further alleged that his daughter has been kidnapped by accused No.1. -4- Therefore, the jurisdictional police received the complaint and registered the same in Crime No.90/2014 for the aforesaid offences and forwarded FIR to the jurisdictional Magistrate.
3. In order to establish the case of the prosecution, PWs.1 to 5 were examined and marked 22 documents as Exs.P1 to P22(a). The respondents/accused persons have not examined any witnesses nor produced any documents.
4. The learned Sessions Judge, Kalaburagi based on the pleadings framed the following points for consideration:
1. Whether prosecution proves beyond reasonable doubt that, on 20-07-2014 at about 5.00 p.m., from Karadalli village within the limits of Chittapur police station, accused No.1 kidnapped C.W.2 / prosecutrix a minor girl on Hero Honda mother cycle by taking her -5- out lawful custody of her parents knowing or intending that she would be forced for marriage against her will or seduced to illicit intercourse and thereby committed an offences punishable U/Sec. 366 of Indian Penal Code?
2. Whether prosecution proves beyond reasonable doubt that, on the above said dated, time and place, accused No.2 abetted accused No.1 for kidnapping C.W. 2 / prosecutrix a minor girl and as per his advice on 28-07-2014 accused No.1 and prosecutrix got registered marriage at Chittapur Sub-
Registrar's office and thereby accused No.2 committed an offence punishable U/Sec. 114 R/w Sec. 366 of Indian Penal Code and Sec. 17 of POCSO Act, 2012?
3. Whether prosecution proves beyond reasonable doubt that, on the above said date, time and place, -6- the accused No.1 after kidnapping the prosecutrix/a minor girl took her to Kattamdevarahalli and in his sister's house, had forcible sexual intercourse and thereby committed an offence punishable U/Sec. 376(2) (i) of Indian Penal Code?,
4. Whether prosecution proves beyond reasonable doubt that, on the above said date, time and place, after committing forcible sexual intercourse with prosecutrix, accused No.1 committed criminal intimidation by threatening the life of prosecutrix with intent to cause alarm to her not disclose that fact and thereby committed and offence punishable U/Sec. 506 of Indian Penal Code?
5. Whether prosecution proves beyond reasonable doubt that, on the above said date, time and place, the accused No.1 knowing fully -7- well that C.W. 2/prosecutrix is a minor girl, committed aggravated penetrative sexual assault and thereby committed an offence punishable under Section 6 of Prevention of Children from Sexual Offences Act, 2012?
6. What order or sentence?
5. The learned Sessions Judge after considering both oral and documentary evidence on record has recorded a finding that the prosecution has failed to prove beyond reasonable doubt that the accused have committed the offence as alleged on the said date. Accordingly, by the impugned judgment and order dated 16.04.2016 acquitted the accused persons for the offences punishable under Sections 366, 376(2) (i), 506 and 114 of Indian Penal Code Sections 6 and 17 of POCSO Act. Hence, the present appeal filed by the State.
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6. We have heard the learned counsel for the parties to the lis.
7. It is stated by the learned Additional SPP that respondent No.2/accused No.2 died during the pendency of the present appeal and this Court by an order dated 05.01.2017 dismissed the appeal as against the said respondent No.2. The said submission is placed on record.
8. Sri Prakash Yeli, learned Additional SPP contended that the impugned judgment and order passed by the Sessions Court acquitting the accused No.1 is erroneous and contrary to the material on record. He further contended that the Session Court has acquitted the accused persons only on the ground that PW.2 - victim has not supported the case of the prosecution. Her evidence cannot be rejected as she has deposed about her moving together with accused No.1 and marriage with him at Sub-Registrar's Office. -9- He would further contend that the material witnesses including PW.1 - complainant, PWs.3, 4, 7, 8, 11, 12 and 16 have supported the prosecution case. The prosecution has been able to prove its case beyond reasonable doubt by holding that the victim girl - PW.2 was minor as on the date of the incident and accused No.1 with the assistance of accused No.2 kidnapped her. The same has not been considered by the Sessions Court while passing the impugned judgment and order of acquittal. Therefore, he sought to set aside the judgment and order passed by the Sessions Court acquitting the accused No.1.
9. Per contra, Sri Shivakumar Malipatil, learned counsel for the respondents/accused sought to justify the impugned judgment and order and contended that the Sessions Court considering the entire material on record held that the prosecutrix was not minor as on the date of the incident. Ex.P18 clearly -10- depicts that the age of the prosecutrix was 19 years and she voluntarily married the accused No.1. Therefore, he submits that the order of acquittal passed by the Sessions Court is just and proper and sought for the dismissal of the appeal.
10. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the entire material on record carefully.
11. It is the case of PW.1 who is the father of the victim - PW.2 that on the information from PW.4 and CW.5 with regard to accused No.1 kidnapping his daughter, lodged a complainant PW.14 - Sanjeev Kumar, PSI received the complaint and registered the same in Crime No.90/2014 for the offences punishable under Sections 366, 376(2) (I) and 506 of IPC and Sections 4, 6 and 17 of the POCSO Act. PW.12 is the head master who has issued admission register extract -11- to show the date of birth of the prosecutrix. PW.17 is the witness to the registration of marriage in the office of Registrar of Marriages and Sub-registrar at Chittapur and PW.15 has registered the marriage. PW.11 is the Medical Officer who examined accused No.1 and certified him to be potent and PW.16 is the Medical Officer who examined the prosecutrix. PW.13 is the Woman Police Constable who has carried out the direction of her higher officer. PW.14 has registered the case and conducted part of investigation.
12. PW.2 who was the alleged victim and star witness for the prosecution case. The offence of kidnap from lawful guardianship requires the proof that victim was minor i.e., below 18 years as on the date of the incident. To prove this fact, the prosecution relies on the oral evidence of PWs.1 to 3 and PW.12 - Headmaster of Government Higher Primary School, Kardal. PW.1 who is the father of the prosecutrix and in -12- his ocular testimony on oath has testified that the prosecutrix has studied second standard and was aged about 15 years 1 month. In his cross-examination, he stated that he does not remember about production of any document in respect of date of birth of the prosecutirx at the time of her admission.
13. The assertions of the prosecutrix - PW.2 that she went with accused No.1 voluntarily from her parents place is not at all denied in her cross- examination by defence and as such, the prosecutrix moving with the accused No 1 is proved. Her assertion is that, she has been to the sister's house of accused No.1 at Kattandevarhalli and thereafter stayed with accused No.1 in a lodge at Gulbarga and at Ghattarga, went to Chittapur, married accused No.1 in a temple at Gulbarga is also not at all denied in her cross examination by defence counsel. Therefore, the prosecutrix moving with the accused and she marrying -13- him in a temple with accused No.1 is proved. This is also fortified by Ex.P.19 - Donation Receipt issued by Ramteerth temple authority. The accused No.1 and prosecutrix got marriage registered in the office at Chittapur voluntarily is proved from Ex.P.20. PW.2 has stated in her evidence that she came to that place and both had put signatures while registering their marriage. This version of PW.2 is not at all denied in her cross-examination by defence counsel. PW.15- Koliwad who registered the marriage of accused No.1 and PW2 has stated on oath that Sabanna/accused No.1 and the prosecutrix filling Ex.P20 from requested to register their marriage, producing a receipt issued by Ramateerth temple along with SSLC marks card of accused No.1 and the medical certificate in proof of age of the prosecutrix. They brought 3 witnesses namely Gundappa, Saraswathi, and Subash and got registered their marriage under Hindu Marriage Act and the certificate of their marriage is at EX.P 21. In his cross- -14- examination, he stated on oath that the documents produced depicts that accused No.1 and PW.2 are majors and registered their marriage. The PW.17 - Gundappa has testified that accused No.2 had called him to Sub-Registrar's Office, Chittapur where he has put signature due to force of accused No.2 at the time of registration of their marriage.
14. Insofar as alleged complaint of kidnap is concerned, the oral evidence of the witnesses coupled with the documents like Exs.P17 to P21 proved that accused No.1 and the prosecutrix had applied for registration of their marriage in the office of Register of Marriages at Chittapur and they had produced Ex.P19 receipt and represented that they got married in that temple. Having so applied, they can not now deny for the reason that it is not a receipt of marriage. But, the fact to be proved is that, they had knowledge of age of the prosecutrix as on that day. It is brought on record -15- that PW.2 - prosecutrix had attended to school only for 15 days for 1st standard. As during 1st standard a child will not have matured mind, she can not be expected to remember that she was admitted to school and there was a document to prove her age. Accordingly, accused No.1 has produced the document Ex.P18 in proof of her age issued by a Medical Practitioner certifying her age as 19 years. The Investigating Officer during the investigation has not taken any strain to enquire the said Medical Officer for the reason best known to him so as to unearth the issue. When the Medical Officer has issued the certificate certifying her age as 19 years, no fault can be attributed to the accused No.1 in marrying PW.2 and getting it registered as PW.2 has voluntarily married him. Hence, the evidence on record does not help the prosecution to prove that accused No.1 had kidnapped PW.2 - Prosecutrix. The offence of kidnap not only involves taking of a minor out of lawful custody of her guardian but the kidnaper should have 'mens rea' -16- and motive. But, in this case, PW.2 asserts that she herself took accused No.1 to house of his sister. Further taking note of further things that happened, it appears to be an affair between accused No.1 and the prosecutrix and considering that accused No.1 not in a dominant position to make her to leave her parents house. The statement made on oath by PW.2 - prosecutrix clearly depicts that she herself went with him and it does not amounts to kidnap.
15. With regard to rape as alleged in the complaint is concerned, PW.2 in her evidence on oath has stated that accused No.1 had not committed rape on her during her stay in the house of his sister at Katamdevarhalli, in a lodge at Gulbarga and at Ghattaraga. It is only PW.2 who can state about the rape and when she herself had denied that fact, her evidence is not of any assistance to prove charge of rape and penetrative sexual assault. Though PWs.1 and 3 -17- have stated that the prosecutrix had reformed them that accused No.1 had raped her, when the victim denies that fact on oath before the Court, their evidence cannot be based upon to prove that charge. The prosecution relies on opinion evidence of the Medical Officer - PW.16/Dr. Nanda Rampure, who has testified that there were no injuries on the body of the prosecutrix; hymen was absent but there was no evidence of recent sexual intercourse. But, in the cross-examination, she admitted that there are chances of tearing of hymen due to cycling. The evidence of the Medical Officer also does not help the prosecution to prove that there was forcible sexual intercourse. Tearing of hymen only is not a ground to hold that there was sexual intercourse that too when the victim has denied the said fact. Therefore, the prosecution has failed to prove that there was rape and penetrative sexual intercourse by leading acceptable, believable and clinching evidence. What it -18- appears is that, it is a love affair and they got married voluntarily.
16. The prosecution theory does not depict that accused No.1 has committed rape on the prosecutrix. Apart from that, this Court by an order dated 23.11.2017 orally directed the learned Additional SPP to get the information as to whether accused No.1 and the prosecutrix were living together and leading happy married life. In response to the said query, the learned Additional SPP has received the Police Report dated 29.11.2017 stating that they are residing together and leading happy married life. The said police report is placed on record.
17. In view of the aforesaid reasons, we do not find any good ground to interfere with the impugned judgment and order passed by the Sessions Court in Special Case (POCSO) No.40/2014 on the file of the II Additional Sessions Judge, Kalaburagi acquitting the -19- accused person for the offences punishable under Sections 366, 376(2) (i), 506 and 114 of Indian Penal Code Sections 6 and 17 of POCSO Act, exercising the powers of this Court under Section 378(1) & (b) of the Code of Criminal Procedure.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Srt Ct: VK