Karnataka High Court
Eashwar @ Vishwanath vs The State Of Karnataka on 22 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:8738-DB
CRL.A No. 200152 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 200152 OF 2018
(374(Cr.PC)/415(BNSS))
BETWEEN:
EASHWAR @ VISHWANATH
S/O SHRIMANTH MADANKAR
AGE:25 YEARS
OCC: PRIVATE WORK
R/O ILKAL, TQ:HUNAGUNDA
DIST:BAGALAKOT
...APPELLANT
(BY SRI. MAHANTESH H. DESAI, ADVOCATE)
Digitally signed by
SHAKAMBARI
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA
THROUGH NELOGI P.S.
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA BENCH
AT KALABURAGI-585 102
2. SMT. SANGEETA
W/O ANNARAO
AGE:57 YEARS
OCC:HOUSEHOLD
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NC: 2024:KHC-K:8738-DB
CRL.A No. 200152 of 2018
R/O ROZA, KHANAPUR
KALABURAGI-585 306
[AMENDED AS PER ORDER OF COURT ORDER
19.06.2024]
...RESPONDENTS
(BY SRI. SIDDALING P.PATIL, ADDL. SPP FOR R1;
SRI. RATEESH KUMAR S. PATIL, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
16.10.2018 PASSED BY THE II ADDL. SESSIONS JUDGE AT
KALABURAGI IN SPL.CASE (POCSO) NO.4/2016 CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
U/SEC.366(A), 376(2)(n), 506 OF IPC AND U/SEC.6 OF POCSO
ACT.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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NC: 2024:KHC-K:8738-DB
CRL.A No. 200152 of 2018
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal is directed against the judgment of his conviction and order of sentence dated 16.10.2018 in Special Case (POCSO) No.4/2016 passed by the II Addl. Sessions Judge, Kalaburagi, whereby the trial Court has convicted and sentenced the appellant-accused finding him guilty for committing the offences punishable under Section 376 (2)(i)(n) of Indian Penal Code, 1860 (hereinafter referred as 'IPC') and Section 6 of POCSO Act, 2012 (hereinafter referred as 'POCSO' Act) and sentenced him as under:-
"The accused is sentenced to undergo rigorous imprisonment for life and a fine of Rs.1,00,000 for the offences punishable under Section 376(2)(n) of Indian Penal Code and Section 6 of POCSO Act, 2012 and in default of payment of fine, he shall undergo further simple imprisonment for a period of 2 years.
The accused is sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs.1,00,000/- for the offence punishable under section 366(A) of Indian Penal Code and in default -4- NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 to pay fine, he shall undergo further simple imprisonment for a period of 2 years.
The accused is sentenced to undergo for simple imprisonment for a period of 2 years and a fine of Rs.25,000/- for the offence punishable under Section 506 of Indian Penal Code and in default to pay fine, he shall undergo further simple imprisonment for a period of 6 months."
2. Parties to this appeal are referred to as per their rank before the trial Court for the sake of convenience.
3. That one Annappa Hanamappa Badiger (father of victim girl) resident of the address so stated in the complaint went to the Woman police station, Kalaburgi, on 01.10.2015 at 7.00 p.m. and filed a typed complaint alleging that his daughter, who is the victim girl, was abducted and kidnapped by his son-in-law by name Eshwar(accused). He states that he is working as a home guard and residing with his family members. He has 3 sons and 3 daughters. His elder daughter Priyadarshini is married to a person, i.e., accused resident of Ilkal village in Bagalkot taluk. But his daughter Priyadarshini is -5- NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 residing with him in his house. It is stated that on 21.09.2015, the complainant left the house to attend his employment during the night hours. At that time the accused came to the house and on 21.9.2015 at 7.00 a.m., the accused abducted his daughter, the victim girl, and went away. Despite search for his daughter, he could not trace her, therefore, he lodged a complaint showing the name of his daughter, particulars of her age, her height and her physical appearance. The said complaint- Ex.P1, was registered by the police under Crime No. 68/2015 for the offence under Section 363 of the IPC and the criminal law was set in motion.
4. PW.9 Ameerasab Mehaboobasab, the then Head Constable in Woman Police Station, Kalaburgi, on receipt of the complaint on 01.10.2015 registered the crime, prepared the FIR as per Ex.P.9 and sent the same to the higher officers.
5. PW.10 Smt. Shavubai Teli, the then Police Inspector of Kalaburagi Women Police Station, took up the -6- NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 investigation and before her the victim girl was produced on 17.10.2015. She recorded victim girl's statement and sent her for the purpose of medical examination. Thereafter, she transferred the said crime and investigation to the Roza Police station within which the offence was committed. She also produced the accused before the said police station.
6. PW.13 Ghaleppa Pirappa, the then Police Inspector on taking up the investigation sent the victim girl to the Court for recording her statement under Section 164 of Cr.P.C. The Investigating Officer on completion of the investigation filed the charge sheet against the accused for the offences punishable under Sections 363, 376(2)(i)(n) and Section 506 of IPC and Section 6 of the POCSO Act.
7. To prove the guilt of the accused prosecution in all examined 13 witnesses and got marked Exs.P1 to Ex.P15 with respective signatures as well as MOs No.1 to -7- NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018
4. During the course of cross-examination, a portion of a statement of PW.4 is marked as per Ex.D1.
8. The learned trial Court on hearing the arguments of both the side and on evaluation of the evidence, found the accused guilty of committing the offence under Sections 366(a), 376(2)(n) and Section 506 of IPC and Section 6 of the POCSO Act and sentenced him as stated herein above.
9. This is how, now the accused-appellant is before this Court challenging the said judgment of his conviction and order of sentence.
10. The learned counsel for the accused-appellant with all vehemence would submit that, on perusal of the complaint as well the evidence placed by the prosecution, it shows that no offence has been committed by the accused. He would submit that, the victim girl was major and she voluntarily went along with the accused. Therefore, the question of her kidnap by the accused does not arise at all. He would further submit that, her date of -8- NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 birth is 01.06.1998 and as on the date of alleged incident she was aged 17 years 4 months and odd days. That means she has already completed 17 years. The date of incident is mentioned as 21.09.2015. He further submits that after 9 days of the incident, alleged abduction or kidnapping complaint was filed by the complainant. The parents of the victim girl have never gone to the school. Based upon the school certificate, her age is reckoned. She has already completed 17 years of age and was having the age of understanding. It is the prosecution to prove the age of the victim girl as minor. But it is not proved by the prosecution. The detailed evidence of the prosecution about the age is not led by it. Therefore, he would submit that, as per the principles laid in the catena of judgments, 2 years margin has to be given with regard to the age, as the report also shows that she is nearing 18 years. Therefore, the question of application of the POCSO Act does not arise at all. In support of his submission, he relied upon various evidences both oral and documentary and submits that, the accused since -9- NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 17.10.2015 is in judicial custody and has already completed substantial sentence. Therefore, he prays to allow the appeal and set aside the impugned judgment.
11. Refuting this submission, the learned Addl. SPP Sri Siddaling P.Patil, with all vehemence would submit that, the statement of victim girl under Section 164 of Cr.P.C. clinchingly establish about the illegal act of the accused in kidnapping the victim girl, so also forcibly having sexual assault on her. Though there is no medical evidence but her statement before the Magistrate, so also her evidence before the Court do establish about the commission of the crime by the accused. He would submit that, the age of the victim can be reckoned as per the transfer certificate which was issued by the Head Master. He would further submit that, no evidence is placed on record by the accused to show that, the victim was major girl. What is the exact age of the victim girl is also not being established by the defence. So as per the evidence of the doctor, she was a minor girl and the victim girl's
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 parents as well the neighbours have supported the case of the prosecution. The trial Court is right in convicting the accused. In support of his submission, the learned SPP also relies upon the various evidence placed on record by the prosecution.
12. In view of the rival submission of both the sides, the following point would arise for our consideration:-
"Whether the learned trial Court is justified in convicting and sentencing the accused for the aforesaid offences?"
13. Before adverting to other aspects of the case, let us analyse certain factual features brought on record with regard to the age of the victim girl. As per the case of the prosecution the victim girl as on the date of the incident was 15 years of age. Prosecution relies upon Ex.P.13 the Transfer certificate wherein Sl.No.17 her date of birth is mentioned as 01.06.1998. She has left the school after passing 2nd Std. The complaint shows that the age of the victim girl was 15 years as on the date of
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 the incident i.e., on 21.09.2015. That means, if the date of birth is counted from the date of birth till the date of incident, she is aged 17 years 3 months 15 days. To prove the said fact, prosecution relies upon the evidence of PW.12 Lakshmi Siddanna-the Head Mistress of Keerthi Kannada Senior Primary School, Kalaburgi. According to her evidence as per the school records, Ex.P.13 the Transfer certificate the date of birth of the victim girl is written as 1.6.1998. She states in her cross-examination that, when the victim girl was admitted to the school she was not working as a teacher. She denied other suggestions. Thus, as per the school records the date of birth of the victim girl is shown as 1.6.1998. Even the victim girl was examined before the Court as PW.2. Quite interestingly, she has stated her age as 15 years as on 16.3.2017 which is quite contrary to the contents of Ex.P.13 her Transfer certificate. Though PW.1 states that her daughter was aged 15 years as on the date of incident but the evidence of PW.12 shows that her date of birth as 1.6.1998.
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14. The learned counsel for the appellant-accused would submit that, the Co-ordinate Bench of this Court has held with regard to the age of the victim based upon the Transfer Certificate. He relied upon a judgment in Crl.A.100284/2018 wherein it is observed with regard to the age of the victim by relying upon the judgment of the Apex Court Alamelu and Another, V. State represented by the Inspector of Police, reported in (2011) 2 SCC 385. When we take up the issue with regard to the age of the victim girl, the learned trial Court has not taken into consideration with regard to the age of the victim based upon the transfer certificate-Ex.P.16 issued by PW.12 the Head mistress and even the other documents like radiological report which shows that victim girl is aged nearing 18 years as per the medical records. Dr. Shilpa has issued the medical certificate as per Ex.P.12. She has medically examined the victim girl who went to her with a history of sexual assault and kidnapping. According to her, she examined her and issued certificate. It shows that, as per dental opinion she
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 was aged 16 to 17 years and radiological opinion shows as 18 years. While marking this document no objection is raised. Relying upon this, the learned counsel for the appellant would submit that, in view of the observations of the Apex Court and also Ex.P12 and 13, the doctor's opinion as well as Transfer certificate, the said transfer certificate is not admissible in evidence as provided under provisions of Section 35 of Indian Evidence Act. It is submitted that, admissibility of the document would not have much evidentiary value to prove the age of the victim girl. There is clear doubt regarding proof of her age.
15. In the instant case, as stated supra the complainant states his daughter victim girl was aged about 15 years when the incident took place. PW.12 the doctor states that her date of birth is 01.06.1998. The radiological report and the opinion of the doctor shows that she was 18 years of the age and dental opinion shows that she was in between 16 to 17 years of age. The
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 learned counsel for the appellant vehemently submitted that, in view of the judgment of the Hon'ble Apex Court in Birad Mal Singhvi v. Anand Purohit, reported in 1988 Supp SCC 604, wherein it is observed that, the date of birth mentioned in the school register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. In this case, no attempt is made by the prosecution to examine the said person who has recorded the date of birth of the victim girl. In the instant case, as rightly submitted by the counsel for the appellant-accused that, PW12 Head mistress has not recorded the date of birth and she has given the evidence based upon the records being maintained in the school and has issued the said Transfer Certificate. Thus, the evidence of PW.1 is not consistent with that of the evidence of head mistress of the school. There is no material evidence lead by the prosecution to prove that, the victim was minor as on the date of the alleged incident. In the absence of such evidence placed on record by the prosecution, it is hard to believe that the victim girl
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 was a minor as on the date of the incident. The doctors who have medically examined the victim girl were of the medical opinion that, she was not a minor girl as on the date of the incident.
16. In a case of present nature, it is duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. PW.1 Annappa Hanamappa is none other than the complainant. According to him, accused is his son-in-law and in the year 2013, he performed the marriage of his elder daughter Priyadarshini with accused. It has come in the evidence of this PW.1 that, as his daughter Priyadarshini had sustained burn injuries because of the quarrel in between the husband (accused) and wife, she came to Kalaburagi and started residing in her parental house. According to him, in the month of April, 2015 his daughter sustained burn injuries. Further, he states that, his daughter has taken treatment for burn injuries as an inpatient for a period of 3 and half months. For the first time, he states that, as the accused had an
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 apprehension that his wife Priyadarshini would give some statement with the police, therefore he was moving in and around the hospital. He further states that, when the Bagalkot police came to the hospital, he fled from the hospital. This evidence is spoken to in para 1 of examination-in-chief does not find a place in his complaint.
17. Further, he states that about 1 and half years prior to filing of the compliant, he returned to the house in the morning at 8.00 a.m. At that time, his wife conveyed him that on the previous night accused came to the house and sought apology and in the morning he took victim girl with him for the purpose of brining breakfast to his wife i.e., Priyadarshini. She waited for arrival of accused and victim girl but they did not return. Therefore, both parents of the victim girl searched whereabouts of victim girl and accused. Even his son also searched. They searched him in the bus stand, railway station, bazar etc., but they could not trace them. When he called to the mobile of the accused, he told that, he has taken the
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 victim girl with him and if they have got any courage let them come to Ilkal and take her back. By saying so, he switched of his mobile phone. Further, he states that, they searched for 10-11 days for the victim girl and could not trace her. Thereafter, he lodged a complaint as per Ex.P1 before the police. Strange evidence has been spoken to by PW1 that, when he knew that accused has told him that, he has taken the victim girl with him and gave threat as stated above. What was the necessity for this complainant to search his daughter for 10 to 11 days and thereafter lodge a complaint as per Ex.P.1 is not explained by him. The complaint averments are very much silent to that effect. After 20 days of the complaint, police traced the victim girl and accused and brought them to the Women police station. When enquired, his daughter informed that, accused first took her to Ilkal, thereafter to Goa and there he has kept her in a shed. He was doing centering work. She told that, forcibly he had sexual intercourse with her. His daughter was taken to the hospital. He says that, when the incident took place his
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 daughter has completed 16 years of age and her age was about 17 years at that time. On scrupulous reading his examination-in-chief of PW.1, we find so much of improvement in his evidence on oath.
18. In the cross-examination, he states that, every day during night hours at 10 p.m. he attends his employment as Home guard. He uses mobile phone. Nobody informed about coming of accused to his house by calling him on telephone. He came to know about coming of the accused at 8 a.m. when he came to the house on the following day. He admits that by the side of his house there exits some hotels and small petty tea shops. He further states that, on that day accused at 3.00 p.m. spoke to him on telephone. He told PW.1 that, he will bring medicine to Priyadarshini-his wife. On the following day accused gave threat. According to him, on the 6th day, he went to Ilkal and went to the house of the accused but nobody was found in the house. He further states that, when accused and his wife Priyadarshini were
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 residing in Ilkal, this victim girl also went to Ilkal. Thereafter, victim girl never went to the house of the accused at Ilkal. According to him, he has not sent the victim girl alone anywhere. She used to accompany with her sister. He further states that, whenever accused come to her house, he used to reside for 4 to 5 days. He further states that, from the date of incident till filing of a complaint, he spoke with accused for 4-5 times. Further, he states that, after going to Ilkal he did not talk with the accused. Whatever he has stated in his evidence on oath does not find place in his complaint. His evidence is full of improvements. He states that, when Priyadarshini was married she was 21 years of age. It has come in the evidence that, the victim girl is 3 years younger than this Priyadarshini, his elder daughter. If that is so, when Priyadarshini was married with the accused in all probability, the victim girl would have been 18 years of age. This fact is not stated by the complainant in the complaint as well as his evidence on oath. Thus, reading the evidence of this PW.1 it shows that, so much of
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 embellishment, improvement, discrepancies are bought on record, not only in examination-in-chief as well as in the cross-examination. If such a evidence is brought on record by the prosecution, it really requires corroboration.
19. PW.2 is a victim girl. though she states with regard to the performance of the marriage of Priyadarshini with accused at Gulbarga temple and when marriage of her sister took place with the accused already she has left the school 2-3 years back. According to her, her sister and accused used to reside at Ilkal. But always they used to have frequent visit to her house. She further states that, when her sister was at Ilkal she set fire to herself because of quarrel between husband and wife. With regard to that fire incident, accused had informed her father by calling him on telephone. On getting such information her parents went to Ilkal and brought her sister to Gulbarga and admitted in the Government Hospital. There were burn injuries on the chest and other parts of the body of Priyadarshini. Even after curing of the
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 said burn injuries, she was residing in her parents house. Accused used to reside at Ilkal.
20. Further she states that, on 20.9.2015 accused came to the house at 10.00 p.m. In the morning, he told her that, let us bring the breakfast to her sister. By saying so, he took her in a autorickshaw to the railway station. Thereafter, she was taken to Bagalkot and when she enquired that, they have come to bring the breakfast to her sister, but he gave a threat to her. Thereafter, he took her to Ilkal then to Goa. At Goa he took her to a shed situated near the (Modern) Kolawal Central Jail. Nobody was there. He was doing centring work. When she was there in the shed, accused sexually assaulted her. Forcibly he used to have the sexual intercourse with her. When she tried to shout, he used to give a threat to her. In the said shed, they lived for 15 days. During these 15 days, he committed rape on her. Thereafter, she was brought to Ilkal. When they were at Ilkal bus stand, police came there and took them to Gulbarga Women Police
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 station. There she noticed the presence of her parents. When her parents enquired, she told that, they had been to Goa. Even she told about the rape on her by the accused. She told that, forcibly she was taken to Gao by the accused. Thus, according to her, because of threat, she went along with the accused and there the accused has committed rape on her forcibly.
21. According to her evidence, she was taken to Goa by the police and there she showed the shed where they lived. Police prepared the panchanama. Photographs are identified as Ex.P.3 to P.6. She states that, when she gave her evidence before the Court, she was of 15 years which is quite contrary to the contents of the complaint. She has been thoroughly cross-examined by the defence. According to her, at 7.00 a.m. on that day, they went to bring the breakfast. From her house the railway station is about 2 kms away. She does not know in which train they travelled and at what time they came to the railway station. She further states that, accused purchased the
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 train ticket. She says when the accused was standing in the queue she was standing 10-15 feet away from the accused. She has not noticed of any persons who were known to her. Thus, the evidence of this PW.2 shows that, when accused took her in a autorickshaw to the railway station, she did not put any question to him. When he was standing in a queue to purchase the ticket, she did not ask why he is purchasing the ticket. Further, she states that, at Goa, accused used to attend his centring work in the morning and used to return in the evening. At that time, she used to be alone in the said shed. He was cooking. She was at Goa in the same dress which she was wearing in Gulbarga. She returned to Gulbarga i.e., for 20 days and even her clothes were not being washed. According to her, the said (Modern) Kolawal central jail at Goa is at about 400 - 500 feet away from the shed. She states that, there is a difference of 3 years of age between herself and her sister Priyadarshini i.e., wife of the accused. She states that, doctor has enquired her. She has informed the doctor that forcibly accused has taken
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 her, raped her. She denied other suggestions. She speaks with regard to knowing of one Karna residing infront of her house and one Shama friend of her sister. Further she states that, when the Magistrate recorded the statement police were very much present there. After six months of her sister suffering from burn injury, she went to Ilkal. She states that, after the said incident of burn injuries, relationship between her family and accused family was strained. She denies all other suggestions. According to her evidence, she used to clean the shed where she lived at Goa. She used to do all house keeping work except cooking. Thus, her evidence shows that, she voluntarily went along with the accused and lived with him at Goa. If her evidence is scrutinised, it shows that she is a consenting party. She is aged 18 years as per her medical records. Therefore, when she is aged 18 years, POCSO Act has no application to the facts of the case. Therefore, her evidence itself goes to establish that, there is no acceptable evidence spoken to by her with regard to
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 the forcible sexual assault committed by the accused in the manner stated by her in her evidence.
22. PW.3 Sangeeta Annappa is none other than the wife of the complainant and mother of the victim girl. She states with regard to the relationship between the accused and her daughter Priyadarshini and performing her marriage etc., She corroborates the evidence of PW.1 in material particulars. But she is hear say witness to all facts stated by PW.2 victim girl. Her evidence may be accepted to the extent that, she came to know about the incident from the mouth of PW.2 only. She has denied all the suggestions.
23. PW.5 Priyadarshini is none other than the wife of the accused. She states with regard to the harassment by the accused to her and because of that she poured kerosene on her body and burnt herself. At that time accused told that, this PW.5 should die and by saying so he went away from the house. This fact is not stated by
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 PW.1 or PW.2 in their evidence. So also evidence of PW.3 is silent to that effect.
24. She speaks before the Court about going away of the accused along with this victim girl PW.2 and she too went to the police station and gave a statement before the police about whatever has happened with the accused in her life. She also enquired victim girl PW.2 about the incident etc., In the cross-examination, she states that, when she was in her in-laws house, PW.2 victim girl did not visit her house. She does not know the house of her neighbours at Ilkal. According to her, when she caught fire for herself on that day, PW.2 her sister (victim girl) came to Ilkal. But she denied all suggestions. She never says that, her husband really kidnapped PW.2 and took her to Goa etc., She does not know her date of birth and year etc., She too is a hear say witness to the said incident of the sexual assault on the person of the victim girl by the accused.
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018
25. PW.5 Ramachandra Ranappa was the coolie who came to know about the incident from PW.1 so also PW.6 Sharanu @ Shivasharanappa Kadaganchi. As both these witnesses are the hear say witnesses, much value cannot be attached to the evidence of this PW.5 and 6. PW.7 is the pancha to Ex.P8, the scene of offence Panchanama. As shown by the accused, the Panchanama was conducted as per Ex.P.8. There is no denial of this fact specifically by the defence. Therefore, from the evidence of PW.7, it can be stated that, prosecution is able to prove the contents of Ex.P.8.
26. PW.8 Shaila Shivaputrappa was PSI who conducted the part of the investigation and transferred the case to the Gulbarga police and handed over investigation to CW.22 for the purpose of investigation. To the extent of conducting part of the investigation, her evidence is accepted.
27. PW.9 Ammerasab, the Head constable who received the complaint and registered the crime in
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 Crime No.68/2015 of Kalaburagi Women Police Station and set the criminal law in motion.
28. PW.10 Shavobai Teli is the IO. She says that, on 17.10.2010 the victim girl and accused were produced. She recorded the statement of victim girl PW2 and sent her for medical examination.
29. PW.11 Dr. Shilpa w/o Dr Abhishek being the private doctor states that, she had worked as a resident senior doctor at Kalaburagi GIMS hospital in Gynaecology section. On 17.10.2015, the police brought the victim girl PW.2 to the hospital at 11.00 p.m. for the purpose of medical examination. Victim girl told that, she was kidnapped and sexually assaulted. It is narrated to victim girl that, accused had kidnapped her, took her to Goa, was brought back to Gulbarga on 17.10.2015 and produced before the Gulbarga Women Police Station. Even this PW.2 victim girl narrated about sexual assault by the accused. PW.11 noticed no injuries on the persons of the victim girl and there were no blood stains. There was an
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 old torn mark, there was no bleeding etc., She has collected certain articles on medical examination of the victim girl and sent them to the FSL. Even she sent X-ray to dentist for ascertaining about the age. Her age at that time was 16 to 17 years. As per the radiologist report, she was aged about 17-18 years when she examined her. She gave opinion that, the victim girl was not sexually assaulted. There was no evidence with regard to the sexual assault on her. To that effect, Ex.P.12 is issued by her. On reading Ex.P.12, it is the final opinion stating that, there is no evidence of recent sexual intercourse. Except denial nothing is brought on record in the cross- examination.
30. PW.13 Ghaleppa Pirappa was the I.O. at the relevant time and he speaks with regard to the voluntary statement of the accused. No evidentiary values can be attached to such confession evidence recorded by the Police except leading to discovery of incriminating material
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 object. Thus, such a confession statement so recorded has no evidentiary value.
31. The learned trial Court has believed the evidence of PW2, the evidence of doctor and has come to the conclusion that, the accused has committed the sexual assault on the person of a minor girl. In this case, the age of the victim girl is not proved. PW.2 herself states that, when her sister Priyadarshini was married, she was 21 years of age and she is 3 years younger to Priyadarshini. That means when Priyadarshini was married, she was 21 years and obviously victim girl was aged 18 years of age. The alleged incident of kidnapping took place after marriage of Priyadarshini. Thereby, victim girl must have crossed 18 years of age. It has come in the evidence that there is a delay of 9 days in filing the complaint. Even the parents of the victim girl have not clearly stated that, when exactly the said incident has taken place. FSL report is also silent with regard to the detection of semen stains, sperm skin tissue. It is the evidence of PW.2 victim girl
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 that, the cloth which she was wearing when she was kidnapped, the same clothes were worn by her when she was brought to Gulbarga. They were not washed. But the clothes worn by the victim girl were not detected with semen stains or torn of skin tissue etc., When there was alleged forcible sexual assault on the person of the victim girl, at least some stains must be there on the clothes being worn by the victim girl but FSL report Ex.P15 is silent to that effect. Therefore, the evidence adduced by the prosecution suffers from material particulars. Though the learned Addl. SPP would submit that, the victim girl was a minor but no evidence is adduced by the prosecution to prove that she was a minor.
32. In view of the inconsistent evidence spoken to by the parents of the victim girl PW.2 and the doctors evidence, it can be stated that, prosecution is unable to prove its case as alleged. on appreciating the evidence brought on record by the prosecution, it can be stated that, victim girl was not a minor at the time of alleged
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 incident. The prosecution has failed to establish the said fact with legal evidence. The evidence of victim girl, evidence of complaint and his wife so also evidence of the doctor is quiet inconsistent and is not reliable. Conduct of victim girl in accompanying the accused upto Goa, living with him for 15 days and doing all house keeping work except cooking and returning with him to Ilkal and at Ilkal bus stand police caught hold them, etc., shows her conduct that, she is a consenting party. So under such circumstances, not much importance can be given to the evidence of the victim girl. There is no other material evidence placed by the prosecution. Apart from that, she was well conversant with the accused as he is her sister's husband. On previous night of alleged incident of kidnapping, accused came to the house, he apologised. Then in the morning, he called this PW.2 to accompany him to bring the breakfast to Priyadarshini . On invitation of the accused she went along with him. Though she went to the railway station, she did not enquire that, where they are going. When he was standing in the queue to
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 purchase ticket, she did not enquire. Voluntarily she went to Bagalkot. Even the IO has not bothered to collect relevant documents to show the exact age of the victim girl. Even the call details are also not mentioned. When complainant knew that accused has kidnapped his daughter but again he searched for 10 days. Thus, prosecution has miserably failed to bring home the guilt of accused beyond all reasonable doubt.
33. The learned trial Court has not considered all these facts and merely by appreciating the evidence of PW2 victim girl, hastily has come to the conclusion that, accused has committed the sexual assault on the person of the victim girl and has also committed rape on her. The documentary evidence placed on record is not properly appreciated in proper perspective. In view of the inconsistent, improved, discrepant evidence brought on record by the prosecution, there arises a doubt in the case of the prosecution and that benefit has to be extended to the accused. Accordingly, above point is answered in
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018 favour of the appellant - accused and against the prosecution. In view of the discussion made above, appeal succeeds and deserves to be allowed. Consequently accused is entitled for acquittal by giving benefit of doubt.
34. Resultantly, we pass the following ORDER
(i) Appeal is allowed.
(ii) The judgment of conviction and order of sentence dated 16.10.2018 in Spl. Case (POCSO)4/2016 by the II Addl. Sessions Judge, Kalaburagi is hereby set aside. Consequentially the accused is acquitted of the charges under section 376(2)(n), 366(A), 506 of IPC and Sec. 6 of POCSO Act, 2012.
(iii) As accused is in judicial custody, he shall be released forthwith, if not required in any other case.
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NC: 2024:KHC-K:8738-DB CRL.A No. 200152 of 2018
(iv) Disposal of property remains unaltered.
(v) Send operative portion of this order to the Superintendent of Jail as well as trial Court forthwith for compliance.
(vi) Send back the trial Court records along with a copy of the judgment.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE PSJ