Karnataka High Court
State Of Karnataka vs Satish S/O. Mallesh Hadagali, on 14 June, 2021
Author: R.Devdas
Bench: R.Devdas
CRL.A.NO.100105/2017
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JUNE, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100105/2017
Between:
State of Karnataka,
Rep. by the Police Inspector,
Gadag Rural Police Station, Gadag,
Through the Addl. State Public Prosecutor
Advocate General Office, High Court of
Karnataka, Dharwad Bench.
...Appellant
(By Sri.V.M.Banakar, Addl S.P.P.)
And:
Satish S/o. Mallesh Hadagali,
Age:21 years, R/o. S.M. Krishna Nagar, Gadag.
...Respondent
(By Sri.S.G.Kadadakatti, Adv.)
This criminal appeal is filed under sections 378 (1) and
(3) of Cr.P.C., praying to grant special leave to appeal and to
set aside the judgment and order of acquittal dated
14.12.2016 passed by the Prl. District and Sessions Judge
Gadag in S.C. (POCSO) No.38 of 2014 and to convict the
respondent/accused for the offences punishable under
Sections 363, 376(2)(i) of IPC and Section 4 of the POCSO
Act, 2012.
This criminal appeal having been heard and reserved for
judgment on 28.05.2021, coming on for pronouncement of
judgment this day, J.M.Khazi J., delivered the following:
CRL.A.NO.100105/2017
2
JUDGMENT
Being aggrieved by the judgment and order of acquittal dated 14.12.2016 passed by the Principal District and Sessions Judge, Gadag in S.C. (POCSO) 38/2014 by which the Trial Court was pleased to acquit the accused for the offences punishable under Sections 363, 376(2)(i) of the Indian Penal Code ("IPC" for short) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act" for short), the State has preferred this appeal under Sections 378(1) and (3) of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short).
2. For the sake of convenience, the parties are referred to their rank before the Trial Court.
3. In the charge sheet, it is alleged that accused used to speak to the prosecutrix, who was aged about 14 years, by frequently visiting the layout where she was residing and lured her to go to Bengaluru with him with a promise that he will marry her and they can live happily and on 31.03.2014 at his instance, the prosecutrix left her house and went to Hubballi in the bus and from there, the accused took her to CRL.A.NO.100105/2017 3 Bengaluru by travelling in a bus and thereafter he made her to stay in a shed which was constructed for storing construction materials and also used as a watchman's shed and from 01.04.2014 to 15.05.2014 he committed rape on the prosecutrix and thereby committed the above said offences.
4. During the investigation, the Police secured the presence of the prosecutrix and also the accused and they were subjected to medical examination. The statement of the prosecutrix was got recorded by the Investigating Officer through the Magistrate under Section 164 of Cr.P.C. After conducting detail investigation, charge sheet is laid against the accused.
5. Charge is framed against the accused for the offences punishable under Sections 363, 376(2)(i) of IPC and under Section 4 of the POCSO Act. The accused has denied the charges levelled against him.
6. In support of the prosecution case, 17 witnesses are examined as P.Ws.1 to 17, Exs.P-1 to P-15 are marked. The accused has not led any oral or documentary evidence. CRL.A.NO.100105/2017 4 During the course of his statement under Section 313 of Cr.P.C. he has denied the incriminating materials against him.
7. After hearing the arguments of both sides, vide the impugned judgment and order, the Trial Court acquitted the accused on the ground that the charge levelled against the accused are not proved beyond reasonable doubt.
8. We have heard the learned Additional State Public Prosecutor for the State and the learned counsel for the respondent - accused and perused the records.
9. During the course of his arguments, the learned Additional State Public Prosecutor has submitted that at the time of incident, the prosecutrix was aged 14 years and both, during the course of her statement before the Police as well as before the Magistrate, she has spoken about the involvement of the accused in enticing her away and while keeping her in a shed at Bhattarahalli, K.R.Puram, Bengaluru, she was subjected to sexual intercourse and these aspects have been proved by the prosecution beyond reasonable doubt. He further submitted that inspite of it, the Trial Court has CRL.A.NO.100105/2017 5 proceeded to acquit the accused and it is a fit case to reverse the judgment of acquittal.
10. On the other hand, learned counsel representing the accused submits that after examining the oral and documentary evidence placed on record, the Trial Court has arrived at a correct conclusion and no ground is made out to reverse the judgment of acquittal.
11. According to the prosecution, the accused enticed away the prosecutrix on 31.03.2014 and on the same evening, the father of the prosecutrix i.e., the parents of the prosecutrix came to know about her absence. However, the complaint came to be filed on 05.05.2014 after lapse of 36 days. In the complaint, the complainant has not given the reasons for delay in filing the complaint. He has stated that after coming to know that the prosecutrix has not returned home, he and his wife felt that she might have gone somewhere and waited for 2 to 3 days and they also searched for her in their relatives house and thinking that she may return, they kept quite. He has also stated that about 2 to 3 days prior to the filing of the complaint, he came to know that CRL.A.NO.100105/2017 6 the accused has taken the prosecutrix alongwith him and therefore, he has chosen to file the complaint.
12. With regard to the delay in filing the complaint, during the course of his evidence, complainant, who has examined as P.W.2 has stated that after coming to know about the absence of prosecutrix, he, his wife, C.W.5 - Mehaboob Tahasildar and C.W.8 - Yasir Mithaivala searched for her everywhere i.e., in Bus Stand, Railway Station, Ashraya Colony etc., and on the next day also they searched for her and fearing for the reputation of the family, immediately he did not file the complaint.
13. Even during the course of his evidence, this witness has stated that he came to know about the accused having enticed away his daughter about one month after the incident. However, the evidence of the mother of the prosecutrix i.e., P.W.3 - Rihanabegum revealed that accused used to visit their colony and used to speak to the prosecutrix by standing near a Kirana shop and he was freely behaving with her. Even P.W.4 - Yasir Mithaivala, who is an acquaintance of the complainant and also knowing the CRL.A.NO.100105/2017 7 accused has deposed that accused used to freely move with the prosecutrix and after coming to know that the prosecutrix is missing from the house, he and C.W.10 - Siraj Ahmed informed the said fact to the complainant and advised him to give complaint. The evidence of the wife, the complainant as well as P.W.4 makes it evident that immediately after the prosecutrix went missing from the house, the complainant had all the reason to believe that it is the accused who might have enticed away his minor daughter and there was absolutely no reason for him to wait for nearly 36 days to file the complaint. The reason for delay in complaint is not properly explained by the prosecution. The accused has taken up a defence that when the prosecutrix went missing from the house of the complainant, after due deliberation, the complainant has chosen to file a false complaint against him and he has nothing to do with the missing of the prosecutrix. Even after coming to know that the accused might have enticed his daughter, there is inordinate delay on the part of the complainant to file the complaint and there is absolutely no justification for the inordinate delay in filing the complaint and it goes to the root of the prosecution case.
CRL.A.NO.100105/20178
14. It is the definite case of the prosecution that the accused was using cell phone bearing number 7411173283 and the prosecutrix was in the habit of calling him over that number through a coin booth. In her statement before the Investigating Officer as per Ex.P-8, as well as in her statement under Section 164 of Cr.P.C., the prosecutrix has specifically spoken about this aspect. During the course of her cross- examination, when the prosecutrix was questioned as to whether she complained to her parents about the accused calling her over the phone, the prosecutrix has specifically stated that it was she who was calling the accused over his phone. However, the Investigating Officer has not collected any evidence regarding the accused using the cell phone bearing number 7411173283 and that the prosecutrix contacting him over his phone through the coin booth. The evidence on this aspect would have been helpful to the case of the prosecution.
15. So far as the allegations that the accused enticed the prosecutrix to go with him to Bengaluru and staying in a shed and there accused committing rape over her, i.e., having sexual intercourse with her, in her statement before the CRL.A.NO.100105/2017 9 Investigating Officer as per Ex.P-8 as well as in her statement before the Magistrate as per Ex.P-2, the prosecutrix has nowhere stated that the accused forced her to leave her parents house and go with him and there was any force exerted by him in keeping her in the shed for a period of 44 to 45 days. However, during the course of her evidence before the Court, she has deposed that while keeping her in the shed, he was threatening her not to leave the shed and used to have sexual intercourse against her will every night.
16. Her cross-examination reveal that on 31.03.2014 she left the house and up to Mulgund Naka she went by walk and from there she boarded Hubballi bus and alighted at Hubballi Bus Stand and alongwith the accused she travelled over night to Bengaluru and from Majestic of Bengaluru, they went to Bhattarahalli, K.R.Puram and were staying there. Her cross-examination further reveal that during the course of around 44 to 45 days when she stayed in the said shed, there were other workers and she was speaking to them, but never she complained that accused has forcibly kept her in the said shed etc. The story of accused having forcibly taken her and keeping her in a shed against her will and that he committed CRL.A.NO.100105/2017 10 sexual intercourse with her against her will, appears to be a improvement made before the Court and it appears to be tutored version. Her oral testimony on this aspect before the Court is inconsistent with the statement given by her before the Investigating Officer as well as before the Magistrate under Section 164 of Cr.P.C.
17. P.W.7 - Ishwar Sadar is the Police Constable, who alongwith P.C. 918 was entrusted with the duty of searching the accused as well as the prosecutrix. His evidence reveals that on 16.05.2014 at around 09:00 a.m., they were present at K.R.Puram market near Ganesha Temple of Bengaluru and they saw the accused as well as the prosecutrix coming towards the temple and after making sure about the identity, they secured them and took them back to the Police Station and produced them before the Investigating Officer. Evidence of this witness reveals that the prosecutrix was freely moving with the accused and she never complained to the Police that she was forcibly taken away and kept by the accused alongwith him. In fact, this witness alongwith P.C. 918 has found that the prosecutrix was moving with the accused on CRL.A.NO.100105/2017 11 her own volition and there appeared to be no threat or force exerted by the accused against her.
18. Now coming to the evidence of the prosecution to the effect that at Bhattarahalli, K.R.Puram of Bengaluru, the accused had kept the prosecutrix in a shed for nearly 44 to 45 days. It is pertinent to note that the Investigating Officer has not collected any evidence as to whom the said shed belonged to or in respect of whose construction the shed was being used and neither the statement of the owner of the house or atleast the contractor who had engaged the services of the accused and who allowed or permitted the accused to stay in the said shed is recorded by the Investigating Officer. Unfortunately by the time the Investigating Officer went to conduct the mahazar, the said shed was demolished, as evident from the mahazar at Ex.P-11 and the photograph at Ex.P-3. The accused has taken up a defence that he was never working at Bengaluru and that he was working in Gadag and therefore there is no truth in the case of the prosecution that he took the prosecutrix to Bengaluru and stayed there in a shed for a period of 44 to 45 days. In the light of the specific defence taken by the accused, in the absence of the evidence CRL.A.NO.100105/2017 12 of independent witness regarding the stay of the accused and prosecutrix in a shed for nearly 44 to 45 days, the case of the prosecution suffers. The evidence of the contractor or at least the owner of the house which was under construction would have been helpful. In the absence of the said evidence, the Court is forced to hold that the prosecution has failed to prove the said fact.
19. Now coming to the evidence regarding the age of the prosecutrix. To prove the age of the prosecutrix, the prosecution has relied upon the progress card of the prosecutrix at Ex.P-5. In the progress card, her date of birth is given as 30.03.2001. The prosecutrix as well as her parents have deposed that about two years prior to the date of the incident, the prosecutrix attended 7th standard and after that she did not continue her studies which goes to make her age as 14 years as on the date of the incident. In the medical certificate before the Medical Officer, she has given her age as 14 years. The Medical Officer has referred to the prosecutrix to the Dental Surgeon and based upon his opinion, she has given her opinion as per Ex.P-12, that at the time of the incident the prosecutrix was aged about 14 years. The defence CRL.A.NO.100105/2017 13 has not disputed the age of the prosecutrix. The oral and documentary evidence placed on record establish the fact that as on the date of the incident, the prosecutrix was aged 14 years.
20. Now coming to the evidence regarding the allegation of accused having sexual intercourse with the prosecutrix, Ex.P-1 is the medical examination of the prosecutrix. As per this document, P.W.15 - Dr.Sharanamma has examined the prosecutrix. She has given evidence that on examination, she found the hymen ruptured and torn but other body parts like vagina were healthy. She has also spoken about her opinion given regarding the age of the prosecutrix. She is of the opinion that the sexual intercourse might have occurred. During her cross-examination, she has admitted that for athletes and women doing hard labour, hymen gets ruptured by itself and she is not in a position to say when the hymen was ruptured so far as the prosecutrix is concerned. However, her evidence and the opinion is not certain with regard to the prosecutrix having sexual intercourse and the same was against her will. CRL.A.NO.100105/2017 14
21. As rightly held by the Trial Court from the contents of Ex.P-1, the definite opinion of the Doctor cannot be made out, as it only states that the sexual intercourse might have occurred. The Medical Officer has not found any external injuries or any injuries to the internal sex organs. Therefore, the medical evidence placed on record is also not sufficient to connect the accused with the alleged crime.
22. Taking into consideration all these aspects and after appreciating the evidence placed on record in a proper perspective, the Trial Court has come to a right conclusion that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt and we find no perversity in the conclusions arrived at by the Trial Court and it is not a fit case to interfere with the judgment and order of acquittal. Therefore, the appeal filed by the State fails and accordingly it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Rsh