Karnataka High Court
The State Of Karnataka vs Hemanth Kumar @ Kumara on 21 March, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No. 398 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.398 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
THROUGH HULIYURDURGA POLICE STATION
KUNIGAL CIRCLE, TUMAKURU
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01.
...APPELLANT
(BY SRI P. THEJESH, H.C.G.P.)
AND:
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA 1. HEMANTHKUMAR @ KUMARA
Location: HIGH
COURT OF AGED ABOUT 25 YEARS
KARNATAKA
KURUBARA KOPPALU
DODDAMAGGE HOBLI
ARAKALAGUDU TALUK
HASSAN DISTRICT- 573102.
2. T.S. MOHAN
S/O NEELEGOWDA
AGED ABOUT 34 YEARS
TOREBOMMANAHALLI VILLAGE
HULIYURUDURGA HOBLI.
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NC: 2024:KHC:11691-DB
CRL.A No. 398 of 2018
KUNIGAL TALUK, TUMAKURU.
(IMPLEADED VIDE COURT ORDER DATED
28.11.2023)
...RESPONDENTS
(BY SMT. ARCHANA K.M., AMICUS CURIAE FOR R-1,
SRI S. JAVEED, AMICUS CURIAE FOR R-2)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CR.P.C PRAYING TO GRANT LEAVE TO
FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED
05.08.2017 PASSED BY THE III ADDITIONAL SESSIONS
JUDGE, TUMAKURU AND SPECIAL COURT FOR TRIAL CASES
UNDER PROTECTION OF CHILDREN FROM SEXUAL OFFENCES
ACT IN SPL.C.NO.74/2016 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 366(A), 343 AND 506(B) OF THE IPC AND
SECTIONS 6 AND 8 OF THE POCSO ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
DICTATION THROUGH PHYSICAL HEARING/VIDEO
CONFERENCE, THIS DAY, DR. H. B. PRABHAKARA
SASTRY, J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant - State has filed this appeal under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'the Cr.P.C.'), -3- NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 challenging the judgment of acquittal dated 05.08.2017, passed by the learned III Additional Sessions Judge at Tumkur & Special Court for trial of Cases under Protection of Children from Sexual Act, 2012, (hereinafter for brevity referred to as the 'Special Court') in Spl.C.No.74/2016, acquitting the accused of the offences punishable under Sections 366A, 343, 506B of The Indian Penal Code, 1860(hereinafter for brevity referred to as 'IPC') and Sections 6 and 8 of The Protection of Children from Sexual Offences Act, 2012(hereinafter for brevity referred to as 'POCSO Act').
2. The summary of the case of the prosecution is that on the date 22.10.2015 at about 6.00 p.m., while CW2/PW5 the alleged victim girl was going to the house of her mother from her cousin brother's house, at Thore Bommanahalli, the accused who was working as a JCB driver, known to her cousin brother i.e., PW1/CW1 Mohan T.N., kidnapped her with an intention to have sexual intercourse with her and took her on his motor cycle to a -4- NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 different place called Gadihalli village and having confined her in the house of one Sri Anandappa for four days, subjected the alleged victim girl to aggravated penetrative sexual assault and also sexually assaulted her putting her under the life threat, as such, has committed offences punishable under Sections 366A, 343, 506B of the Indian Penal Code, 1860 and Sections 6 and 8 of The Protection of Children from Sexual Offences Act, 2012.
3. After perusing the materials placed before it and hearing both side, the Special Judge's Court framed charges as against the respondent (accused) for the offences punishable under Sections 366A, 343, 506B of IPC and Sections 6 and 8 of POCSO Act. Since the accused pleaded not guilty and claimed to be tried, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all eleven(11) witnesses from PW1 to PW11, got produced -5- NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 and marked documents from Exs.P1 to P14 and produced Material Objects from MO1 to MO8. From the accused' side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Special Judge's Court, by its judgment dated 05.08.2017, acquitted the accused of the offences punishable under Sections 366A, 343, 506B of IPC and Sections 6 and 8 of POCSO Act. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant-State is being represented by the learned High Court Government Pleader. Respondent No.1/accused was being represented by his learned counsel Sri. Girish B. Baladare, however, since the said learned counsel did not appear and address his arguments even after granting him a reasonable opportunity, this Court vide order dated 13.03.2024 proceeded to appoint learned counsel Smt. Archana K.M., as Amicus Curiae for -6- NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 respondent No.1/accused. Since, respondent No.2 is a de-facto complainant and did not engage the services of an advocate, this Court vide order dated 27.02.2024, proceeded to appoint learned counsel Sri. S. Javeed, as Amicus Curiae for respondent No.2.
6. Learned High Court Government Pleader for the appellant-State and learned Amicus Curiae for the respondent No.1(accused) and learned Amicus Curiae for respondent No.2(defacto complainant) are physically appearing in the Court.
7. The Special Court records were called for and the same are placed before this Court.
8. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Special Court records.
9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Court.
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10. Learned HCGP for the appellant-State in his arguments submitted that the victim girl was minor in her age. The evidence of none else than PW.5 the victim girl that her date of birth is 25.03.2002 is further corroborated by Ex.P3-The school admission register extract, which is authored by PW2, the Head Mistress of the said school. Thus, even under Rule 12(3) (a) of The Juvenile Justice (Care and Protection of Children) Rules, 2007, the document can be accepted and relied upon by the Court, thus the prosecution has proved the age of the victim girl as a minor as on the date of the alleged offence.
11. Learned HCGP further contended that PW5 being the minor in her age, the accused has kidnapped her with an intention to have sexual intercourse with her. The act of the accused of kidnapping her has been corroborated by the evidence of PWs.1 and 6. Though PW5 as a victim girl has spoken about she being kidnapped by the accused, but PW6, who is an independent eye witness has categorically and clearly stated that he has seen the -8- NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 accused kidnapping PW5 on his motor cycle. Though PW6 attempted to draw the attention of the accused, however, the accused fledge further with the victim girl on his motor cycle. Thus said evidence coupled with the evidence of PW1, who is also the complainant, who initially lodged a complaint alleging kidnapping of PW5 by the accused proves the fact that the accused has kidnapped PW5 the minor girl with an intention to have sexual intercourse with her.
12. Learned HCGP further submitted that the evidence of none else than PW5, the alleged victim girl that she was kept by the accused in the house of one Sri. Anandappa at Gadihalli village continuously for four days would prove beyond doubt that the accused had wrongfully confined the victim girl for more than three days in a different place unknown to the victim girl.
13. The learned HCGP also submitted that the very evidence of PW5 the victim girl go to show that the accused in order to have sexual intercourse with her had -9- NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 threatened her of dire consequences by showing her the knife. PW5 has categorically stated that while she was sleeping, the accused after entering the room where she was sleeping, closed her mouth with one of his hands and with the other, he shown a knife to her and thus the offence punishable under section 506B of IPC also stands proved.
14. The learned HCGP further submitted that the detailed account of the alleged sexual intercourse by the accused with the victim girl at Gadihalli village in the house of Anandappa on more than one occasion, which has come out in the evidence of none else the victim girl as PW5 is further corroborated by the medical evidence which is in the form of a medical report at Ex.P9. Undisputedly, the accused was found to be not incapable to have sexual intercourse as deposed by Dr. Manjunath Smaran-PW3, who examined the accused and has given report as per Ex.P4. Thus the accused being capable to have sexual intercourse has by putting PW5 the victim girl in life
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 threat has subjected her to penetrative sexual assault on several occasions. In the process, he has also committed sexual assault upon her by touching the private organs and other parts of the body of the victim girl. As such, the prosecution could even able to prove beyond reasonable doubt the offences punishable under Sections 6 and 8 of POCSO Act as having committed by the accused. He submitted that the learned Judge of the Special Court without appreciating the evidence placed before it in its proper perspective has erroneously acquitted the accused of the alleged offences.
15. The learned HCGP also submitted that the date of birth certificate issued by the school can be the valid proof to prove the age of a minor as provided under Rule 12(3) of The Juvenile Justice(Care And Protection Of Children)Rules, 2007( for brevity hereinafter referred to as 'JJ Rules, 2007').
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16. Learned Amicus Curiae for respondent No.1/ accused in her arguments submitted that even though Ex.P3 is shown to be the school admission register extract showing the date of birth of the victim girl as 25.03.2002, however, the same does not inspire any confidence to believe in the court of law. She submitted that in Alamelu and Another -vs- State Represented by Inspector of Police, reported in AIR 2011 SC 715, the Hon'ble Apex Court held that a Transfer Certificate issued by a Government school though admissible in evidence under section 35 of the Evidence Act, but it would not be of much evidentiary value to prove the age of a girl in the absence of the material and basis on which the age was recorded. She also submitted that our Hon'ble Apex Court in P. Yuva Prakash -vs- State Represented by Inspector of Police reported in 2023 SCC Online 846 has observed that a Transfer Certificate and extract of Admission register are not what Section 94(2) (i) of The Juvenile Justice(Care and Protection of Children) Act, 2015, mandates. She also submitted that apart from this,
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 the alleged victim girl herself has stated that she was not quite sure that her date of birth is 25.03.2002. As such, the prosecution has utterly failed to prove that the victim girl was minor in her age as on the date of the alleged offence. With this, learned Amicus Curiae for the respondent No.1 submitted that when the prosecution could not prove the age of the alleged victim girl as minor, then, other alleged offences including Section 366A IPC and Sections 6 and 8 of POCSO Act falls on their own. Still the evidence led by the prosecution, even if it is taken on its face value, would not have proved those guilts against the accused. On the other hand, it shows that it is highly unbelievable to hold that the alleged incident has ever occurred. It is considering these aspects, since the Special Court has rightly acquitted the accused of the alleged offences, the same does not warrant any interference at the hands of this Court.
17. The learned Amicus Curiae for the respondent No.2, who is also for defacto complainant while adopting
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 the arguments addressed by the learned HCGP for the appellant further submitted that the date of birth entered in Ex.P3 is based upon the admission particulars and details given by none else than the family of the victim girl. The said date of birth which has been repeated by PW5 in her evidence has not been specifically denied from the accused side. As such, the fact stands proved that the victim girl was minor in her age on the date of the alleged offence. The learned Amicus Curiae about the alleged incident submitted that the evidence of PW5 is trustworthy and believable. For an offence like penetrative sexual assault or rape on a woman, normally the presence of any other eyewitnesses cannot be expected. As such, the sole evidence of PW5 the victim girl, which has come in a coherent manner is trustworthy and believable. As such, the entire conviction can be based upon her oral evidence.
18. Learned Amicus Curiae further submitted that however the medical report at Ex.P9 further corroborates the case of the prosecution and proves beyond doubt that the accused has subjected the victim girl to penetrative sexual assault.
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 He also submitted that the very same victim girl has given a detailed account as to how long she was wrongfully confined in the house of Anandappa and how the accused subjected her to sexual intercourse by putting her to life threat by showing her a knife. Thus the prosecution has proved beyond reasonable doubt all the charges levelled against the accused. However, the Special Court without appreciating the evidence placed before it, in its proper perspective, since has erroneously pronounced the judgment of acquittal, the same warrants interference at the hands of this Court.
19. Opposing the said contentions of the learned HCGP for the appellant and learned Amicus Curiae for respondent No.2, it was the argument of learned Amicus Curiae for the respondent no.1 that unless it is established that the date of birth certificate has been issued by the School authorities where the victim girl has attended the school first or that the Transfer Certificate is produced and its author is also been examined, the mere recital of date
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 of birth in the form of an admission register extract, which is Ex.P3 in the instant case, is not reliable.
20. In her support, she relied upon Alamelu's case (supra) and P. Yuva Prakash's case(supra).
21. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
i. Whether the prosecution has proved beyond all reasonable doubt that the accused on the date 22.10.2015 at about 6.00 p.m. while, PW-5 the victim girl was proceeding from her cousin brother's house to her mother's house at Thore Bommahalli kidnapped PW-5 the victim girl, who was minor in her age, with an intention to have sexual intercourse with her and took her on a motor cycle to Gadihalli village and thereby has committed an offence punishable under section 366A of IPC?
ii. Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 accused after taking the victim girl to the house of one Anandappa to Gadihalli village wrongfully confined her in the said house for more than three days and thereby has committed an offence punishable under section 343 IPC?
iii. Whether, the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused after kidnapping PW-5 the victim girl and wrongfully confining her in the house of Anandappa at Gadihalli village from the night of the date 22.10.2015 for about four days, threatened PW-5 the victim girl showing her a knife and putting her into life threat, subjected her to penetrative aggravated sexual act and thereby has committed an offence punishable under Section 506B of IPC and Section 6 of POCSO Act?
iv. Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused after kidnapping and wrongfully confining PW-5
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CRL.A No. 398 of 2018
the victim girl in the house of one
Anandappa at Gadihalli village has also subjected PW5 the victim girl, who was minor in her age to sexual assault and thereby has committed an offence punishable under Section 8 of POCSO Act?
and
v. Whether the impugned judgment of
acquittal under appeal warrants any
interference at the hands of this Court?
22. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offences punishable under Section 366A, 343, 506B IPC and Sections 6 and 8 of POCSO Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 Court should not disturb the finding of acquittal recorded by the trial Court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti -vs- State of Haryana and others reported in AIR 2023 SC 1199.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.
23. The entire case of the prosecution proceeds on a basic contention that PW5(CW2) victim girl was minor in her age as on the date of the alleged offence. If the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 prosecution could not be able to prove that the alleged victim girl was minor in her age, consequently, it may not be able to prove the corresponding offence punishable under Section 366A of IPC. Moreover, even if the alleged penetrative sexual assault upon the victim girl is also proved, still the same may fall short of attracting the necessary ingredients of Sections 6 and 8 of POCSO Act. As such, determination of the age of the alleged minor girl, in the instant case, plays a pivotal role.
24. According to the prosecution, PW5 the alleged victim girl was minor in her age, having her date of birth as 25.03.2002. The date of alleged offence commences from 22.10.2015 and continues for four days. As such, according to the prosecution, the alleged victim girl was aged about 13 years 7 months as on the date of alleged incident. In order to prove the age of the victim girl, the prosecution mainly relies upon the evidences of PWs.1, 2, 3, 8 and 10.
25. PW1/CW1 Mohan T.N., is the son of maternal uncle of PW5 the victim girl. The said witness in his
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 evidence has stated that at the time of the incident, which according to him was on 24.10.2015, CW2(PW5)-the victim girl was residing in his house and perusing her studies in 9th standard of schooling. At that time, CW2(PW5) was aged 14 years. Except stating that CW2(PW5) was aged 14 years as on the date of the alleged offence, the witness has not placed any further material either oral or documentary to substantiate his contention. However, in his cross examination, it was specifically denied in the form of a suggestion that the victim was not minor in her age as on the date of alleged incident.
26. PW2/CW8 Savithri Bhat, the Head Mistress of Kodavathi High School, Kodavathi, Kunigal Taluk has stated that, at the request of the Investigating Officer in the matter, she after verifying the records maintained by the school, has furnished him the date of birth of the alleged victim girl in the form of school admission register extract which she identified as Ex.P3. She stated that as
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 per the school records, the date of birth of the alleged victim girl was 25.03.2002. In her cross examination, the witness stated that the entry of the date of birth in their school register was made based upon the Transfer Certificate submitted to the school at the time of the admission of the victim girl to their school. She also stated that they have no supporting document to show the entry of the date of birth of the girl in the said Transfer Certificate. Thus, she made it clear that her statement regarding date of birth of the victim girl as 25.03.2002 is only based upon the entries made in the school register, which in turn was based upon the entry shown in the Transfer Certificate submitted to the school.
27. It is relying upon the evidence of PW2- the Head Mistress, both the learned HCGP for the appellant and learned counsel for respondent No.2 vehemently contended that the date of birth certificate issued by the School being a recognizable and admissible document, the same proves the age of the minor girl as 25.03.2002.
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28. In Mahadeo -vs- State of Maharashtra and another reported in (2013) 14 SCC 637, our Hon'ble Apex Court in para No.12 of its judgment was pleased to observe that in the light of statutory rule in the form of the JJ Rules, 2007, prevailing for ascertaining the age of the Juvenile, it was the opinion of the Court that the same yardstick could be rightly followed by the Courts for the purpose of ascertaining the age of the victim as well. Thus according to judgment of Hon'ble Apex Court in Mahadeo's case, the Court can take recourse to JJ Rules, 2007, provided the same was prevailing at the relevant time of the alleged incident, for ascertaining the age of the victim.
Rule 12(3) of JJ Rules, 2007 reads as below:
"12. Procedure to be followed in determination of age.
(1) xxxxxxxxx (2) xxxxxxxxx
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 (3)In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a)(i)the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii)the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii)the birth certificate given by a corporation or a municipal authority or a panchayat;
(b)and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. Thus as per the above Rules, in the first place, the document which can be relied upon by the Court is the matriculation or equivalent certificate, which admittedly is not available in the case on hand. In the absence of the same, at the second place, it is the date of birth certificate from the school(other than the play school)first attended, which can be relied upon. In the instant case, Ex.P3 is an extract of admission register shown to have been maintained by Kodavathi High School at Kodavathi and authored by PW2(CW8) - Head Mistress. Even according to the said witness, the date of the birth of the victim girl shown in the school admission register and also in Ex.P3 is based upon the date of birth shown in the Transfer
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 Certificate submitted to their school at the time of admission of the girl. Thus its' not the case of even PW2 that Kodavathi High School was the first school attended to by the alleged victim girl. On the other hand, she had joined Kodavathi High School for her High school studies, after completing her primary and middle school in other school, from which, she had obtained Transfer Certificate, later submitted it to Kodavathi High School. As such, even though Ex.P3 is considered to be a date of birth certificate issued by a school, however, admittedly, it is not the one issued by a school, which the alleged victim girl first attended.
29. The entry in Ex.P3, even according to PW2, is based upon the corresponding entries said to have been made in the Transfer Certificate submitted to the High School. Even PW2 has also stated that she has not aware as to based upon which document, the date of birth entry was shown in the Transfer Certificate by the competent school. As such, even PW2, the Head Mistress was not
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 sure about the correctness of the date of birth of the victim girl, but, believed the same to be true, since it was shown in the Transfer Certificate.
30. Thus the next point would be whether the date of birth entry shown in the Transfer Certificate can be solely relied upon to prove the age of the victim girl in a case of penetrative sexual assault. In Alamelu's case (supra), wherein also the question of ascertaining the age of the girl was involved, the Hon'ble Apex Court noticing that in the case before it, the Transfer Certificate shown to have been issued by the Government School and duly signed by Head Master was placed, though held that the same would be admissible in evidence under Section 35 of Indian Evidence Act, still it observed that the admissibility of such document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which, the age was recorded. It also observed that the date of birth mentioned in the Transfer Certificate
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.
31. In Mahadeo's case (supra), as observed by the Hon'ble Apex Court in para No.13 of its judgment, there were certificates issued by the school in which the prosecutrix did her 5th standard and in the school leaving certificate issued by the school, which was marked as Ex.54, the date of birth of the prosecutrix was clearly noted in the said document. Further, the said document also stood proved by PW11. Apart from that, the Transfer Certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education also confirmed the date of birth of the prosecutrix. It is under the said circumstance and considering the evidence including the date of birth certificate, the Transfer Certificate and the oral evidence of the prosecution witnesses, the Hon'ble Apex Court proceeded to accept the finding of the Special Court about the age of the prosecutrix as was below 18 years. Since
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 the very vital document i.e., the Transfer Certificate or other documents which have led the school to enter the date of birth of the victim girl as 25.03.2002 is absent in the instant case, its' not safe to believe and to hold that the date of birth of the PW5 was 25.03.2002.
At this juncture, the judgment of the Hon'ble Apex Court in P. Yuvaprakash's(supra) case also can be looked into. In the said case, the Hon'ble Apex Court at para 14 of its judgment was pleased to observe that a Transfer Certificate would not answer class of document mentioned in Section 94(2)(i) of JJ Act, 2015. Thus, the date of birth certificate to be issued by a school is considered to be a separate type of a document, which differs from a Transfer Certificate. In the instant case, since the document at Ex.P3, which is an extract of the admission register maintained by a High School, where the victim girl is said to have been studied is not the school, where the victim girl is said to have studied at the first instance and also since PW2 the Head Mistress of said School herself has stated that the date of birth entered in her school register
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 is based upon a Transfer Certificate, the said entry in the light of the observation made by the Hon'ble Apex Court in P. Yuvaprakash's case stands on a separate footing and as such, cannot be relied upon.
32. The other document which the prosecution could have been produced and relied upon could be the SSLC marks cards of the victim girl. Though at the time of the alleged incident, the girl was shown to be studying in her 9th standard schooling, however the alleged victim girl during her evidence as PW5 has stated that she had already appeared in SSLC examination and could not complete the same successfully. As such, the prosecution could have secured the said document in the form of SSLC marks card and produced it before the Court, which for the reason best known to it, has not done. Had that document been produced, then it would have answered the very first requirement mandated under Rule 12(3)(a)(i) of JJ Rules, 2007.
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33. In the absence of SSLC or matriculation marks card or the date of birth certificate issued by the school, where the victim has firstly attended, the next category of the document which the prosecution could have been relied upon and produced is the birth certificate issued by the local authority including Grama Panchayat. In that regard, the prosecution could not able to show that the birth of the victim girl was registered with the jurisdictional local authority. For that matter, PW.8(CW.3)-Sudha- the mother of the victim girl could have been the competent person to speak as to whether the birth of her daughter i.e., the victim girl was registered with the local authority. However the prosecution did not put any effort to ascertain the details from the witness on the point.
34. The evidence of PW5 the victim girl shows that she had lost her father. The said statement has not been denied in the cross-examination of the witness. As such,
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 there was no father living to PW5 to come and depose about the date of birth of the victim girl.
35. Even PW5 the alleged victim girl in her evidence has pleaded ignorance about registration of her birth with the local authorities. She stated that she does not about the availability of any documents about her birth though she was born in a Government hospital. Even she pleaded her ignorance that the hospital authorities would inform the panchayat about the birth of the children in their hospital with the details of their parents. She also stated that she is unaware about the availability of any documents of panchayat about her birth. Thus even PW5 the alleged victim girl herself was also unaware of the registration of her birth with the competent local authority and obtaining of any birth certificate from the local authority.
36. The last resort which the prosecution could have undertaken to prove the age of the girl was subjecting the alleged victim girl for ossification test. The same is provided as a last resort under Section 94(2) (iii) of JJ Act,
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 2015. In the instant case, even according to the prosecution, the girl was not subjected to any radiological or ossification test. Even though Ex.P9 the alleged medical examination report with respect to the victim girl shown to have been issued by the Kunigal Government Hospital, Kunigal, Tumkuru District through PW3, mentions that the patient was referred for Dental Orthopaedics and Radiology opinion, however, the victim girl(PW5) was not subjected to any of these tests to ascertain her age. On the contrary, PW10- the Investigating Officer, in his cross examination has stated that there was no necessity of any radiological report, as such, he did not got the victim radiologically tested. It is not known, how PW10 being an Investigating Officer arrived at such an opinion or conclusion that the radiological report was not required. He has not even attempted to give any reason as to when there was specific advice by PW3 the Doctor through Ex.P9 to refer the patient to Dental and Radiological test, what prevented the Investigating Officer from obliging the same. As such, the last type of evidence in the form of
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 ossification test, which the Investigating Officer and the prosecution could have secured and placed before the Court also was not done by them.
37. Under the above circumstance, the evidence of PW5 and PW8 would be of no much avail to the prosecution. PW8 the mother of the victim girl, in her evidence, has stated that she does not know the correct date of birth of the victim girl. Being a mother of PW5, she had expressed her ignorance about the date of birth of her daughter.
38. PW5 the alleged victim girl, in her evidence, though in the beginning, she stated that her date of birth is 25.03.2002, however, in the subsequent part of her evidence, particularly in her cross examination, she stated that she was a failed candidate in SSLC examination. She clearly and specifically stated that she does not know as to what is her date of birth. However, believing the records maintained by the school, she is stating her date of birth. She further stated that she was not aware that she had
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 already crossed 8 or 9 years of her age before getting her admission to the school. She further stated that from the 1st standard for her schooling, several times, she was not regularly going to the school, in between, she was a dropout from the school. Thereafter, after continuing her education, she was a failed candidate in 7th standard schooling. Once again in the year 2012-2013, she had failed in her schooling. Thus she herself has stated that she did not complete her 8th standard and came to 9th standard without any unsuccessful attempt. For several years, she failed in her education, which warranted repetition in the schooling in the same standard. She did not even deny that to have convenience in her education and her future employment, her age was shown at a lesser age and was admitted to the school. Had really she was sure of her date of birth to be 25.03.2002, she would not have entertained the said suggestion, merely by pleading her ignorance. Thus the evidence of PW.5 would also be of no avail for the prosecution to prove the age of PW5 as minor as on the date of the alleged incident.
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39. In the light of the above, the evidence of PW10(CW5)-H.N. Dharmendra-Investigating Officer could be of no much help to the prosecution. He has only stated that during the course of investigation, he received school admission register extract from Kodavathi Government High School as per Ex.P3. The said statement though corroborated by PW2 the Head Mistress of the said school, however mere securing Ex.P3 would not prove the date of birth of PW5, as contended by the prosecution. Thus including the evidence of PW5-the alleged victim girl, the evidence of all other prosecution witnesses, who have deposed in favour of the prosecution regarding the age of the alleged victim girl as a minor could not help the prosecution to prove that PW5 the alleged victim girl was minor in her age as on the date of her evidence.
40. The other point which needs our consideration is about the alleged incident. It has to be seen whether the prosecution has proved that the accused has committed the alleged offences charged against him. The material
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 prosecution witnesses, who according to the prosecution, has spoken about the alleged offences said to have been committed by the accused are PWs.1, 5, 6 and 8 and whose evidence said to have been corroborated by the evidence of PW3-Doctor.
41. PW1/CW1-Mohan T.N., de facto complainant and the cousin brother of the alleged victim, in his evidence, has stated that the accused was working as a JCB driver under him. On the date 24-10-2015 on the day of Ayudha Puja, CW2, the victim girl, while going to her grandmother's house by walk, the accused intercepted with his scooter and taken her somewhere. Though he contacted the accused over phone and asked him as to where he was taking her, however, the accused disconnected the telephone contact. This made him (witness) to lodge a complaint, which complaint the witness has identified it as Ex.P1.
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 He has further stated that after registering his complaint, the Police drew a scene of offence panchanama at his house, which also is identified as Ex.P2.
42. PW5/CW2, the alleged victim girl, also stated that the accused was a JCB operator in her maternal uncle's house. Though she knows the accused, but she is not much acquainted with him. She was residing in the house of her maternal uncle. On the date of the alleged incident, after completing the celebrations of Ayudha Puja, while she was carrying the food items from her mother's house towards her uncle's house, the accused intercepted her on a motorcycle and offered her to give a lift to her. Since the accused was known to her, she sat on his motorcycle. The accused instead of taking her to her uncle's house, took her to another village which she was told as Baddihalli. The witness has further stated that in the house of one Sri Anandappa in the said village, they had food and slept. She further stated that thereafter the accused came close to her while sleeping and in spite of
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 she protesting, by showing her a knife, he committed rape upon her. He repeated the act four to five time. She has also stated that except on the said date, for the remaining days, he did not do anything upon her. Thus, four days were lapsed, thereafter the Police went there and brought them back to the complainant-Police Station.
43. PW6/CW4-Ramakrishna, who claims to be a resident of the same village of PWs.1 and 5 and also acquainted with the family of the complainant, in his evidence, has stated that the accused was working as JCB driver under PW1. He (this witness) is a tractor driver under same PW1. About a year back on the day of Ayudha Puja, while he was sitting in a village called Korati, he saw the accused and the victim girl going on CT100 motorcycle. Though he called the accused by raising his voice, still the accused without stopping the motorcycle left the place.
44. PW8/CW3-Sudha, mother of PW5/CW2, has stated in her evidence that father of CW1 (complainant) is
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 her elder brother. Her daughter, who is PW5/CW2, was residing in the house of CW1 which was the parental home for her (this witness). CW2 was continuing her school education staying in the house of CW1 and she was studying in High School at that time, near to her date of evidence, which evidence was recorded on 30-11-2016. One evening on the day of Ayudha Puja, at about 6:00 to 6:30 p.m., CW2 was sent to supply food to her, however, she did not come to her house. The accused, by intercepting her daughter and threatening her, had taken her on his motorcycle which she came to know later. Since this witness did not say anything further and the prosecution was expecting some more support from her, she was permitted to be treated as hostile and the prosecution was permitted to cross-examine. In her cross- examination from the prosecution side, she stated that though the accused was working as a JCB driver in her brother's house, however, she has not seen him. She admitted a suggestion as true that she had given a statement before the Police as per Ex.P8 stating that the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 accused after kidnapping her daughter had taken her to the house of one Anandappa, a resident near Biruru, and had committed rape upon her.
45. Except the above three witnesses, no other prosecution witnesses have spoken about the alleged incident of alleged kidnap, threatening PW5 and subjecting PW5 to penetrative sexual assault by the accused.
46. When the evidence of PW1 is perused carefully, it can be seen that the said witness, except stating about the alleged kidnapping of PW5 by the accused, has not whispered anything about the alleged incident in his evidence. No doubt, his complaint at Ex.P1 is with respect to the alleged kidnapping of PW5, the victim girl, by the accused. The said complaint which is at Ex.P1 was registered by the complainant-Police against the accused for the offence punishable under Section 366A of the IPC only. It appears that none of the Investigating Officers, who conducted the investigation in this matter, have recorded the further statement of PW1/CW1 though they
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 have filed charge-sheet against the accused not just confining to Section 366A of the IPC, but also including the offences punishable under Sections 343 and 506B of the IPC and also Sections 6 and 8 of the POCSO Act. Even according to the prosecution, PW5, the alleged victim girl, was said to be residing in the house of PW1 at the relevant point of time. As such, it was required of the Investigating Officer to record the further statement of PW1. As such, the entire evidence of PW1 stands confined only to the alleged act of kidnapping of PW5 by the accused.
47. The evidence of PWs.1, 5, 6 and 8 shows that the accused was not a stranger to the family of the complainant as well as to PW5, the victim girl. All these witnesses have uniformly stated that the accused was working as JCB driver in the house of CW1 (PW1). Though the accused in the cross-examination of all these witnesses has denied the same and the Investigating Officer could have collected some more evidence at least in the form of documentary evidence to show that the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 family of CW1 did own a JCB and the accused was working as JCB driver by collecting necessary documents, including the RC book and the Driving Licence of the vehicle and that of the accused, however, the Investigating Officer has not done the same. Still the evidence of PWs.1, 5, 6 and 8 which has uniformly come about the identity and the acquaintance of the accused with the family of CW1 cannot be ignored or rejected. Therefore, there is all the reason to believe that the accused was not a stranger to the family of PW1 and PW5 and he was known to them.
48. Even after analysing the evidence of PW1, though confined to the offence punishable under Section 366A of the IPC only, still it can be noticed that in his complaint at Ex.P1, he has asserted that it is the accused who has kidnapped the victim girl, however, nowhere, in his complaint, he has stated on what basis he has come to that conclusion to accuse the accused of the alleged offence. It is because even according to the complaint, the complainant (PW1) was not an eyewitness to the alleged
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 act of kidnap, still the complaint does not suspect the accused, but asserts that it was the accused alone who has committed the alleged act of kidnapping. Thus, the very complaint at Ex.P1 in the inception itself creates a doubt as to why and on what basis the alleged role of the accused was involved in the complaint. However, we are aware that a complaint or first information to the Police need not be encyclopedia in all its aspects, still when the evidence of the very same complainant/PW1 is taken into consideration, there also, the witness has not stated as to on what basis he came to know that it was the accused who had alleged to have kidnapped PW5. On the other hand, the complainant/PW1 has gone one step ahead in his evidence and stated that he contacted the accused over phone and questioned him as to why he is taking PW5 (the alleged victim girl) with him, however, the accused disconnected the telephone contact. Even to call the accused over phone, the complainant/PW1 should have come to know that it was the accused and the accused alone who had taken the victim girl with him,
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 however, even in his evidence also, the witness has not stated as to how and on what basis he came to know that it was the accused who had taken the victim girl with him. The prosecution also did not elicit any details on this aspect from PW1. Therefore, the evidence of PW1 even with respect to Section 366A of the IPC is not safe to be taken as trustworthy evidence.
49. PW6 has stated that he has seen the accused and PW5 going on a motorcycle and passing through Korati village. The witness has also stated that though in a raised voice, he called the name of the accused to draw his attention, however, the accused did not stop and rode away further. The denial suggestions made to him in his cross-examination was not admitted as true by him.
50. The evidence of PW6 that the accused and the victim girl were seen by him while going on a motorcycle is further corroborated by the evidence of none else than the victim girl, who was examined as PW5. The said witness has stated that while she was returning from her mother's
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 house to her maternal uncle's house, the accused intercepted her on a motorcycle and offering her to give a drop to her house, took her to a different place.
51. The evidence of PWs.6 and 5 on the above alleged point of the accused taking PW5 on his motorcycle appears to be uniformed, however, a very careful perusal of evidence of PW5 would go to show that according to PW5, when the accused intercepted her while she was returning to her house, i.e. her maternal uncle's house from her mother's house. Whereas, her mother who was examined as PW8, in her evidence, has stated that her daughter, i.e. PW5, the victim girl, was supposed to come home on that day, did not go to her house at all. Thus, there is a greater discrepancy in the evidence of PWs.5 and 8 as to from where to where the victim girl was going at the time of alleged incident.
52. In addition to the above, one more point to be noticed which cannot be ignored is that, according to the prosecution, the accused kidnapped PW5 by making her to
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 sit on a motorcycle in which he was riding and took her to a different village. The complainant, who at the earliest point of time has lodged the complaint as per Ex.P1 and was examined as PW1, has stated the nature of the two wheeler as a scooter, but not a motorcycle. PWs.5 and 6 called the same vehicle as motorcycle. Even after taking it as a two wheeler irrespective of the fact whether it was a scooter or a motorcycle, still it was expected and required of the Investigating Officer to seize that vehicle to ascertain the details and description of the said vehicle and also to find out how the said vehicle came in the possession of the accused provided the accused was not the owner of the said vehicle. However, for the reasons best known to them, none of the Investigating Officers, who claims to have investigated in the matter, have made any efforts in that regard. As such, though the entire case of the prosecution continues by saying that PW5, the victim girl, was kidnapped by the accused using a motorcycle, but the very motor vehicle and its details are not forthcoming on record. Further, admittedly, the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 Investigating Officers have not secured the Driving Licence of the accused, if any, to show that he could ride a scooter or a motorcycle. This omissions and laches on the part of the Investigating Officer makes us hard to reject one of the defences taken by the accused that the accused neither owns any motorcycle or two wheeler nor knew the riding of the motorcycle.
53. Keeping the above serious doubt in the case of the prosecution aside, still if the evidence of PWs.5 and 6 are taken into consideration and believed on its facial value so far as the alleged act of kidnapping is concerned, still it can be noticed that PW6, who claims to be an eyewitness of having seen the accused taking PW5 on his motorcycle in Korati village, has himself in his cross- examination stated the place where he saw the accused with PW5 on motorcycle was in a busy road where good number of people will be found walking and the said road having quite sufficient number of houses and buildings on its either side. The witness has even stated that on that
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 road where he saw the motorcycle of the accused, several other two wheelers and four wheelers also keep moving. Thus, the said place according to PW6 is a busy area with the presence of good number of people and vehicles. Still according to PW6, the victim girl (PW5) was not raising any hue and cry or not alarming the people, that mean, she was exhibiting no protest or resistance for the alleged kidnap by the accused.
54. The above evidence of PW6 elicited in his cross- examination gets further corroboration from the evidence of none else than the victim girl herself (PW5). She, in her evidence as PW5, stated that since the accused was known to her, she accepted his offer of dropping her near her house, as such, she sat on his motorcycle as a pillion rider. According to her, instead of taking her to her uncle's house, the accused took her to a different place which place she calls it as Baddihalli. But according to the prosecution, it was Gadihalli. Even while going from her village Thorebommanahalli to Baddihalli or Gadihalli, which
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 is a different village and even after knowing that the accused is not taking her to her house, but he is taking her to a different place, she did not raise any hue and cry nor did she protest in any manner. On the contrary, PW5, herself in the cross-examination, stated that the two wheeler crossed several other places, there were several houses and villages on the either side of the road, some bus stand also came in between and there were humps on the road and on all these places, the accused rode the two wheeler in a slow speed, still she did not raise any hue and cry nor attempted to alarm the people, who were found throughout. On the other hand, the witness stated in her cross-examination that she did not alarm any people nor asked any help from them, but, without any fear and without resistance and without any protest, without crying, she in a comfortable manner holding the back grip of the motorcycle was sitting comfortably in the motorcycle with the accused. This statement of none else than the alleged victim girl herself even if it taken as true, still would go to show that she must have been a willing and consenting
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 party to go with the accused and she had no protest for the accused taking her on the motorcycle to different place.
Thus, when the very alleged act of the accused having a motorcycle in his possession at the relevant point of time, knowing its riding and taking PW5 with him to different place is with lots of serious doubt, still the evidence of PW5 also go to show that, she was willing and consenting party to go with the accused.
55. When as analysed above in the previous paragraphs, the prosecution could not able to prove that PW5, the victim girl, was minor in her age as on the date of the alleged incident, the behaviour of PW5 in accompanying the accused to go to another place which was considered as her consent, spoils the case of the prosecution of the alleged offence of kidnap with an intention of sexual intercourse punishable under Section 366A of the IPC. Thus, the imperfect investigation and to some extent, imperfect presentation of the case by the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 prosecution in the Special Court prevents us from arriving at a finding that the prosecution has proved the alleged guilt against the accused for the offence punishable under Section 366A of the IPC.
56. According to the prosecution, the accused after kidnapping and taking PW5 to a different place, called Gadihalli, wrongly confined PW5 in the house of one Anandappa for about four days and during the said period, subjected the victim girl (PW5) to repetitive aggravated penetrative sexual assault and also touched the body including the private parts of PW5 with his hands with sexual intention.
57. On the above point, the only witness upon whom the prosecution mainly banks upon is once again PW5, the alleged victim girl. The said witness, in her evidence, has stated that after they went to Baddihalli, the name of which place she does not remember clearly, both of them went to the house of one Anandappa, after having their food in the said house, they slept in a room, the accused
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 came nearer to her while she was sleeping and showing knife to her, he committed rape upon her, that too, not once but four to five time on that night. Except PW5, no other witnesses speaks about the accused wrongly confining PW5 in the house of Anandappa, putting any threat to PW5 and subjecting her to penetrative sexual assault. Though the evidence of the alleged victim girl in an act of sexual assault cannot be easily discarded and corroboration to her statement cannot be always expected, since it amounts to adding insult to injury, still in order to find out whether the evidence given by PW5 is trustworthy and believable, the Court is required to be cautious and careful in analysing the evidence of PW5, the victim girl.
58. PW5, the victim girl, nowhere in her evidence, has stated that the accused forced her to enter the house of Anandappa and that, he forcibly confined her in the said house for four days. On the other hand, the first statement in her evidence, that too, in her examination-in-chief with respect to both herself and the accused going to the house
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 of Anandappa says that having taken her to Baddihalli, both of them had food in the house of Anandappa and taking a room there, they slept. The said statement in Kannada language made by her in her evidence has come in such a manner that she had no resistance for the act of the accused taking her to the house of Anandappa, but her statement has come in such a way that both of them knowingly, willingly went to the house of Anandappa, had food together and slept together. She has also stated that after they slept, the accused came nearer to her. She has not stated that she raised any objections for the accused coming near to her. It is only thereafter she says that the accused showing a knife subjected her to rape, that too, not for once but four to five time on that night. To believe her statement that she was subjected to rape by the accused and the occurrence of the alleged act, the statement elicited by her in her cross-examination is required to be considered and analysed carefully.
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59. In her cross-examination, PW5, the victim girl, has stated that there were five persons in the house of Anandappa. She was set free in the house of Anandappa while she was taking food. While talking with the in-mates of the house, stayed there. During that time, she did not inform anyone that the accused, on the pretext of dropping her to her house and by force, brought her there.
60. The same witness, in her very same cross- examination, has also stated that she did not raise objection to sleep in a room in that house and did not offer the women folks in that house that she would sleep with them. She did not even tell them that she would sleep alone and she should not be disturbed by anyone. On the contrary, she has stated that she went alone to the room where she slept. Even after entering the room, she did not close the door, she kept the doors open, half-an-hour thereafter the accused entered the room, he was holding a knife with him, entering the room, he showed the knife to her and closing her mouth with his left hand and while
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 showing the knife in his right hand, he committed rape upon her. This evidence of PW5 given in cross-examination is required to be considered in the light of her evidence in examination-in-chief, where she stated that after taking food on that night, both of them slept, the accused came nearer to her and then showing a knife though she said not to proceed further, he subjected her to rape, that too, for about four to five time on that night.
61. The above two versions of none else than PW5 herself are contrary to each other. In her examination-in- chief, she has stated as though both of them were sleeping in the same room, after taking food and thereafter, the accused came nearer to her. Whereas in her cross- examination, she has stated that she went first in the room and half-an-hour thereafter, the accused came, that too, holding a knife in his hand. Admittedly, the said knife has not been seized or recovered at all by the Investigating Officer for the reasons best known to him. Had really PW5 was threatened by the accused by showing a
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 knife to her, the Investigating Officer should have necessarily put some effort in seizing or recovering the said knife and producing it before the Court. However, none of the Investigating Officers who conducted investigation in this matter have made any efforts in that regard, nor even the prosecution elicited any response from the Investigating Officers, who were examined as PWs.9, 10 and 11 as to what prevented them from seizing or recovering the alleged knife.
62. Assuming that the accused shown her a knife, still it cannot be ignored of the fact that the victim girl who was not tied with her limbs by the accused, or fastened her mouth with any tapes or clothes could have easily raised alarm by crying or yelling or shouting which admittedly, she has not done. In her very same cross-examination, PW5, herself, has stated that the accused has repeated the act of raping her on all the days, they were staying in the said house. According to PW5, at the rate of twice per day, the accused has committed rape upon her for not less than
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 seven to eight time. PW5 also stated that when the accused subjected her to rape on the first day, she could have latched the door of the room from inside, however, she did not latch. Though a specific question was put to her in her cross-examination, why she did not lock the door from inside, the witness did not answer and kept quiet. On the other hand, she stated that she did not reveal to anybody in the house of Anandappa about the accused committing rape upon her. This conduct and behaviour of none else than the alleged victim girl itself goes to show that she had no resistance, no protest, no unwillingness for the alleged act of the accused even if it is taken that the accused might have committed an act of sexual intercourse with her. Thus, it leads to serious doubt that if at all the alleged act of sexual intercourse with PW5 has taken place and committed by the accused, still it was fully with the consent of PW5, the victim girl, but not otherwise.
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63. The above evidence of PW5 that she was free to move and mix with the members in the house of Anandappa where according to her, she stayed for about four days till the Police were said to have brought her back and she not revealing about the alleged sexual intercourse with her by the accused and also not protesting the act of the accused, in any manner, would further makes it difficult to believe that PW5 was wrongfully confined in the house of Anandappa and that, even if it is taken that the accused had sexual intercourse with her, but it was against her will and consent.
64. Thus, when the age of PW5, the victim girl, was not proved to be minor as on the date of the incident and when she shown to be a consenting party in going along with the accused to a different place and staying in the house of Anandappa and has not resisted the alleged act of sexual intercourse upon her by the accused, it cannot be held that there was any offence of either sexual assault, or penetrative sexual assault, or even penetrative aggravated sexual assault upon a minor girl by the accused. As such, even though the offences
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 under POCSO Act cannot be held to be attracted in the case in view of the victim girl not proved to be a minor in her age as on the date of incident, the corresponding offence under the Indian Penal Code, 1860, particularly, Section 376 of the IPC also is hard to believe as having proved by the prosecution in the instant case.
65. The other evidence whose evidence would have been of some help to the prosecution to prove the alleged guilt against the accused, more particularly, of sexual offences, was that of evidence of the Doctor and medical evidence. In the instant case, for the reasons best known to it, the prosecution has not examined the Doctor, who might have examined the victim girl. The only medical witness examined by the prosecution is PW3/CW9- Dr. Manjunath Smaran. The said witness, in his evidence, has stated that on the date 28-10-2015, he examined the accused produced before him by the complainant-Police. The witness has also stated that during the examination of the accused, he collected the pubic hair, semen from the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 accused as well collected a banian and underwear of the accused and handed it over to the Police. Coming to opinion that the accused was capable of involving in sexual intercourse, he has given his opinion as per Ex.P4 concluding that there was nothing to suggest that the male examined was not capable of performing sexual act. His evidence only go to show that the accused was capable to have sexual intercourse. By that itself, it cannot be concluded that the accused committed rape upon PW5.
66. Interestingly, in the evidence of PW3, one more point can be noticed that, he examined the accused on the date 28-10-2015. According to PW5, the victim girl, they were in the house of Anandappa for four days and that each day, the accused has repeatedly committed rape upon her. According to PW11/CW15-Dharmegowda, Investigating Officer, his staff produced the accused and the victim girl before him on 28-10-2015. It was on the very same day, the accused was produced before PW3- Doctor for the medical examination of the accused. Had
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 PW5, the victim girl, was resisting the alleged repetitive acts of the accused in subjecting her to sexual intercourse on all those days of their alleged stay in the house of Anandappa, there should have been necessarily some mark of resistance and injuries upon the accused. Incidentally, PW3-Doctor has not made any observations about presence of any injuries or at least abrasions/scratch marks on the person of the accused whom he examined on 28-10-2015 itself. This further corroborates our view, expressed above, that if at all any act of sexual intercourse has taken place that must have been only with the consent of the girl, but not against her will or consent.
67. The above evidence of PW3-Doctor which is confined about the capacity of the accused to have sexual intercourse would not be of much help to the prosecution to prove that PW5 was subjected to rape. For that matter, a medical corroboration was very much required than needed in the facts and circumstances of the case.
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 However, as observed above, for the reasons best known to it, the prosecution did not examine any witnesses, who is said to have medically examined the victim girl nor produced any medical opinion with respect to the medical examination of the victim girl. Though the learned High Court Government Pleader for the appellant-State, in his argument, vehemently submitted that the victim girl was examined by Dr. Susheela, a Medical Officer at General Hospital, Kunigal, however, the said document has not been marked as exhibit during the trial before the Special Court. The learned High Court Government Pleader drawing our attention to a piece of paper at page No.111 in the paper-book filed in the case contended that it is the medical report with respect to examination of the victim girl by Dr. Susheela, however, the said copy of the document was not marked as exhibit in the Special Court. Ex.P12 marked during the trial was only the FSL report said to have been collected by the Investigating Officer in the case. No evidence placed before the Special Court go to show that the alleged opinion of the Doctor which is at
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 page No.111 of the paper-book was part of the said FSL report at Ex.P12. Undisputedly, the FSL report and the alleged medical report are originated from two different establishments, at two different places and on two different dates. The authors of those two documents are also admittedly different. Under the said circumstance, the alleged piece of paper at page No.111 of the paper-book cannot be construed as part of FSL report at Ex.P12. Therefore, there is no evidence either oral or documentary is placed before the Court by the prosecution to hold that the alleged victim girl (PW5) was medically examined by a competent Doctor.
68. The prosecution has produced a copy of a document said to be MLC Register Extract and got it marked as Ex.P11, however, the authenticity of the said document has been seriously disputed from the accused side. Keeping aside the objection of the accused even in the said MLC Register Extract at Ex.P11 is perused, still it shows that the Doctor appears to have recorded that there
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 was no external injuries found on the alleged victim girl, however, by noticing the rupture of the hymen, it proceeded to have an impression of the presence of signs of recent sexual intercourse.
Still the further observation made in the MLC Register Extract at Ex.P11 does not correspond with the evidence of none else than PW5, the victim girl. It is because Ex.P11 records that on 25-10-2015, the victim girl had bath and had changed her dress. Whereas, PW5, the victim girl, in her cross-examination, has stated that for all the four days during her stay in the house of Anandappa, she did not take bath nor even changed her clothes. As such also, when there are two different versions, one in the form of evidence of none else than the alleged victim girl and the other in the form of medical evidence, which are contrary to each other, it is not safe to hold that the girl was subjected to rape by the accused.
69. Lastly, according to PW5, she was subjected to rape by the accused on all the days of her stay in the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 house of Anandappa, that too, at least twice a day, by the accused. According to Ex.P11-MLC Register Extract, it is shown that pubic hair, vaginal swab, smear, undergarments, chudidhar, black underwear were collected from the victim girl. According to PW3, he had given to the Police the articles collected while examining the accused and also the articles collected from the victim. According to PW10/CW5-Investigating Officer, he had sent the articles collected for the examination to the Forensic Science Laboratory. After filing the charge-sheet, he received the report from the Forensic Science Laboratory which he has marked at Ex.P12. The said report at Ex.P12 speaks about receiving the articles sent to it, which according to it were pubic hair, vaginal swab, vaginal smear, chudidhar (top, bottom and veil), underwear, accused's semen, pubic hair, nails, undergarment and banian did not show the presence of seminal stains or spermatozoa. According to PW5, when she was wearing the very same dress including the inner garments continuously for all the four days, when she was said to
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 have subjected to rape by the accused for not less than seven to eight time, there is all possibility of presence of sperms or spermatozoa on any of the articles collected from the accused and the victim girl, however, the FSL report by its negative report has ruled out the presence of seminal stains or spermatozoa in any of those articles. Thus, the scientific evidence also has not come to the aid of the prosecution. Consequently, it has to be invariably held that the prosecution has utterly failed to prove the alleged guilt against the accused. The Special Judge's Court though not in an elaborated manner, but still after analysing the evidence placed before it, since has come to a right conclusion holding that the prosecution has failed to prove the alleged guilt against the accused for any of the offences with which the accused was charged, we find no reason to interfere with the impugned judgment.
70. Before concluding, we are of the view that having noticed several serious laches on the part of the Investigating Officers, who conducted investigation in this
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 matter, it is required to make a small observation on those points:
i. Admittedly, the offences alleged against the accused are the one punishable under Sections 366A, 343 and 506B of the IPC and under Sections 6 and 8 of the POCSO Act. According to the prosecution, the accused was working as a JCB driver in the house of CW1, as such, he was known to the family members of CW1 including PW5. The accused has vehemently denied that he was a JCB driver. When it is specific contention of the prosecution that family of CW1 owns a JCB and the accused was working as its driver, it was required of the Investigating Officer to secure some documents related to the alleged JCB machine and its ownership with the family of CW1. For the reasons best known to it, the Investigating Officer did not do it.
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 ii. According to the prosecution, the alleged victim girl, PW5, was minor in her age and her date of birth was 25-3-2002. We have been observing that in many cases, the Investigating Officer collects only a School Admission Register Extract from the School authorities as the sole proof of Date of Birth of a minor. Being the responsible Police Officers, they are expected to know the legal procedures to be followed in proving the age of a minor, whether the accused or as a victim. Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007, as well as Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, are very clear as to what documents are required to prove the age of a juvenile including a victim in an alleged crime. In a number of judgments, the Hon'ble Supreme Court, while reiterating the provisions of the above mentioned Juvenile Justice (Care and Protection of Children) Rules, 2007, and the Juvenile Justice (Care and Protection of Children) Act, 2015, has held as to
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 what an Investigating Officer is required to place before the Court to prove the age of the minor, particularly, of a victim who is said to be a minor in age. In spite of the same, without even bothering to collect the necessary documents which could have been easily collected by the Investigating Officer, it satisfied itself by collecting the School Admission Register Extract as per Ex.P3 which legally was not sustainable to prove the alleged Date of Birth of the victim girl. Thus, the Investigating Officer has not evinced the required interest and involvement in the investigation of the matter.
iii. The Investigating Officer has not evinced any interest in subjecting the victim girl, who was alleged to be minor in her age, for radiological test or ossification test, though as a last option, the above referred Juvenile Justice (Care and Protection of Children) Rules, 2007, and the Juvenile Justice (Care and Protection of Children) Act, 2015, mandates the
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 same. On the contrary, even though, PW3-Doctor, who examined the accused and collected the material of the victim and handed it over to the Police, has recommended for dental, radiological test of the victim for ascertainment of age, as could be seen in Ex.P9, still the Investigating Officer decided himself that such a test was not required.
PW10/CW5-H.N. Dharmendra, then Circle Inspector of Kunigal, in his cross-examination, stated that there was no necessity to subject the victim girl for radiological test, without there being any convincing reasons, the said higher rank Circle Inspector, himself, decided that there was no necessity to get radiological report. He did not even say about the Doctor conducting any similar test including ossification test nor brought to the notice of the Court through the prosecution, the presence of any relevant documents in support of the same. Thus, his own act of not getting the victim girl subjected to radiological or ossification test, but confining himself to receive School Admission
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 Register Extract has spoiled the case of the prosecution at the threshold itself. iv. According to the prosecution, the accused was the driver of a JCB machine. Admittedly, to drive such a motor vehicle/machine, a particular type of licence is required. The Investigating Officer has not put any efforts to collect the details of the Driving Licence of the accused to operate the JCB machine/vehicle. Had the Investigating Officer enquired with the competent authority, he would have secured the necessary particulars of the Driving Licence standing, if any, in the name of the accused, which he did not collect. v. According to the prosecution, the accused took the victim girl from her place of residence to a different village on a motorcycle and the accused was riding the motorcycle, however, the Investigating Officer, nowhere collected the details of the alleged motorcycle, nor seized the said motorcycle. Thus, the use of alleged motorcycle for alleged kidnapping of
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 PW5 which could have been scientifically and with the support of the documents could have been placed before the Court, the Investigating Officer has not done for the reasons best known to him. vi. According to the case of the prosecution, the place of occurrence of the offences is at two places. The occurrence of offence of kidnapping is on the way to the house of the mother of PW5 or uncle of PW5 in Thorebommanahalli village. To that extent, the Investigating Officer, i.e. PW9/CW14- V.M. Guruprasad, is said to have drawn a scene of panchanama as per Ex.P2 keeping PW7/CW6- Ramesh as a pancha. The said Ex.P2 is the house of one Sri Neelegowda (father of PW1) in Thorebommanahalli village. According to the prosecution that was the residence of PW1. However, even according to the prosecution, the said house is not the place of offence either of kidnapping or of rape. The prosecution case is that the girl was
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 kidnapped while on her way to home, i.e. in open public place, where the motorcycle can come and pick up the girl. Whereas, the spot shown at Ex.P2 is the house of PW1. Thus, the evidence of PW7, the alleged pancha, and PW9, the Investigating Officer, on the said point would be of no avail to the prosecution. In this way, without even knowing what is a place of offence, the complainant-Police through PW9/CW14-V.M. Guruprasad, Sub-Inspector of Police at Kunigal Police Station, at the relevant point of time, who was in-charge of the Complainant-Police Station, has drawn a panchanama at an irrelevant place. This was not noticed by his subsequent Investigating Officer, who is also of higher in rank, i.e. PW10/CW5-H. N. Dharmendra, then Circle Inspector of Police of Kunigal Circle, who is presently shown to have been working as the Deputy Superintendent of Police, DCRB, Tumakuru.
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 vii. According to the prosecution as well according to the evidence of none else than PW5, the victim girl, she was kept in the house of one Sri Anandappa at Gadihalli, however, for the reasons best known to them, none of the Investigating Officers claims to have visited the said house for the purpose of investigation and drawn a scene of offence panchanama in the said house. PW5, in her evidence, has stated that on the fourth day of her stay in the said house, the Police went there and brought her and the accused to the complainant-Police Station, which means, the Police had been to the said house, where they could find the alleged missing girl in the company of the accused. According to PW11/CW15-Dharmegowda, then Sub-Inspector of Police of the complainant- Police, who later on transferred to Amruthur Police Station, before whom on 28-10-2015, his staff produced both the accused and the alleged victim girl also did not bother to visit the place of Anandappa and draw a scene of offence panchanama. The
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 drawing of the said panchanama was very much required and necessary to complete the charge-sheet in all respect, which the Investigating Officer did not do.
viii. It appears from the material placed before this Court and in the light of the submission made by the learned counsel from both side including the learned High Court Government Pleader for the appellant- State that, none of the Investigating Officers, who conducted investigation in this matter, have recorded the statement of either Anandappa or anyone of his family members when according to PW5, they were five in-mates in the said house of Anandappa. Consequently, none from the house of Anandappa were summoned as witnesses and examined by the prosecution. As such, the material and important witnesses for the alleged wrongful confinement of PW5 in the house of Anandappa and the alleged act of sexual assault upon PW5 in the very same house,
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 the important witnesses who should have been examined, were not examined, by the Investigating Officer in the form of recording their statements nor even by the prosecution by taking summons upon them during the course of the trial.
71. Accordingly, we proceed to pass the following:
ORDER i. The appeal stands dismissed as devoid of merits.
The Court, while acknowledging the services rendered by the learned Amicus Curiae for respondent No.1-Smt. Archana K.M. and for respondent No.2- Sri S. Javeed, recommends honorarium of a sum of not less than `6,000/- each payable to them by the Registry.
Registry to transmit a copy of this judgment to the Director General of Police and the Inspector- General of Police of the State of Karnataka,
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NC: 2024:KHC:11691-DB CRL.A No. 398 of 2018 Bengaluru, and to the Principal Secretary (Home) Department, Vidhana Soudha, Bengaluru, for their information and needful, more particularly, drawing attention to paragraph No.70 made above.
Registry to transmit a copy of this judgment along with the Special Court records to the concerned Special Court without any delay.
Sd/-
JUDGE Sd/-
JUDGE MN (paragraph Nos.1 to 30) KVK (paragraph Nos.31 to end) List No.: 1 Sl No.: 12