Karnataka High Court
Sanju Alias Babu Siddappa Daddi vs The State Of Karnataka on 27 September, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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CRL.A No. 100013 of 2021
C/W CRL.A No. 100339 of 2020
CRL.A No. 100255 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL APPEAL NO.100013 OF 2021 C/W
Digitally signed by
VINAYAKA B V CRIMINAL APPEAL NO. 100339 OF 2020 AND
Location: HIGH
COURT OF CRIMINAL APPEAL NO. 100255 OF 2021
KARNATAKA
DHARWAD
BENCH
DHARWAD
Date: 2024.10.01
IN CRL.A.NO.100013 OF 2021:
12:32:28 +0530
BETWEEN:
SRI. SOMASHEKHAR DURADUNDESHWAR SHAHAPUR,
AGE: 26 YEARS, OCC: STUDENT,
R/O. BAILHONGAL, SOMAWAR PET,
TAL: BAILHONGAL, DIST: BELAGAVI 591102.
- APPELLANT
(BY SRI. ASHOK R. KALYANSHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA REPRESENTED BY THE SPP,
THROUGH KAKATI POLICE, BELAGAVI,
TAL: & DIST: BELGAUM-590002.
- RESPONDENT
(BY SRI. M.B.GUNDAWADE,
ADDITIONAL STATE PUBLIC PROSECUTOR;
SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR P.W.1)
THIS CRIMINAL APPEAL IS FILED U/S. 374 OF CR.P.C.,
AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 12.11.2020 PASSED IN S.C. NO. 156/2017
BY THE SPECIAL COURT (POSCO) AND (SC AND ST
PREVENTION OF ATROCITIES) & III ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI BY ALLOWING THIS APPEAL AND
ACQUITTING THE APPELLANT FOR THE OFFENCES
PUNISHABLE U/SEC.341, 504, 506 OF IPC AND SEC.17 OF
POCSO ACT & ETC.
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IN CRL.A.NO.100339 OF 2020:
BETWEEN:
1. SANJU ALIAS BABA SIDDAPPA DADDI,
AGE: 27 YEARS, OCC: COOLIE,
R/O. MUTTYAANKATTI MARUTI GALLI,
TAL: BELAGAVI, DIST: BELAGAVI-590001.
2. SUNIL ALIAS YALLA LAGMANNA RAJKATTI
ALIAS DUMMGOL, AGE: 21 YEARS, OCC: COOLIE,
R/O. MUTYANGATTI, MARUTI GALLLI,
BELAGAVI, DIST: BELAGAVI-590001.
- APPELLANTS
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SPP,
THROUGH KAKATI POLICE, BELAGAVI,
TAL: & DIST: BELAGAVI-590001.
- RESPONDENT
(BY SRI. M.B.GUNDAWADE,
ADDITIONAL STATE PUBLIC PROSECUTOR;
SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR P.W.1)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.,
SEEKING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE IN SC
NO.156/2017 IMPOSED BY THE SPECIAL COURT (COURT FOR
SEXUAL ASSAULT ON CHILDREN) AND (SC/ST ATROCITIES
COURT) & III ADDL. DISTRICT AND SESSIONS COURT,
BELAGAVI ON APPELLANT NO.1(ACCUSED NO.1) FOR
OFFENCES PUNISHABLE U/S 376(D), 395, 341, 354, 385, 504,
506 OF IPC AND U/S 4, 6, 8, 12 OF POCSO ACT, 2012 AND U/S
67 OF IT ACT, AND ON THE APPELLANT NO.2 (ACCUSED NO.3)
FOR OFFENCES PUNISHABLE U/S 376(D), 341, 354, 504, 506
OF IPC AND U/S 4, 6, 8, 12 OF POCSO ACT, 2012 & ETC.
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IN CRL.A.NO.100255 OF 2021:
BETWEEN:
MAHESH S/O. BALAPPA SHIVANNAGOL,
AGE: 27 YEARS, OCC: COOLIE,
R/O. MANAGUTTI, AMBEDKAR GALLI,
TAL: HUKKERI, DIST: BELAGAVI 590001.
- APPELLANT
(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA REPRESENTED
BY ITS SPP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH KAKATI POLICE STATION,
TQ: BELAGAVI, DIST: BELAGAVI-590011.
- RESPONDENT
(BY SRI. M.B.GUNDAWADE,
ADDITIONAL STATE PUBLIC PROSECUTOR;
SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR P.W.1)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.,
SEEKING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE IN SC
NO.156/2017 IMPOSED BY THE SPECIAL COURT (COURT FOR
SEXUAL ASSAULT ON CHILDREN) AND (SC/ST ATROCITIES
COURT) AND III ADDL. DISTRICT AND SESSIONS COURT,
BELAGAVI ON APPELLANT (ACCUSED NO.4) FOR OFFENCES
PUNISHABLE U/S 376(D), 341, 354, 504, 506 OF IPC AND U/S
4, 6, 8, 12 OF POCSO ACT, 2012 & ETC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 02.09.2024 AND COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
B.M.SHYAM PRASAD J., PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD) These appeals are filed by the first, third, fourth and the fifth accused in Special Case No 156/2017 on the file of the Special Court [POCSO & SC ST Prevention of Atrocities Act] and III Additional District and Sessions Court, Belagavi [for short, the 'Special Court']. The first and third accused have filed their appeal in Criminal Appeal No. 100339/2020, the fourth accused has filed his appeal in Criminal Appeal No. 100255/2021 and the fifth accused has filed his appeal in Criminal Appeal No. 100013/2021. The Special Court has convicted the appellants-accused1 by its judgement dated 12.11.2020 under the provisions of Indian Penal Code, 1860 [for short, 'the IPC'] and Protection of Children from Sexual Offences, 2012 [for short, 'the POCSO Act']. The details relating to each of their conviction, punishment and sentence are encapsulated in the following table. 1 These appellants, for reasons of convenience, are referred to as they are arraigned before the Special Court. -5-
NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The details of the conviction and sentence of the first accused and second accused2 [Sri Sanju and Suresh] Offences Imprisonment/Fine Default Imprisonment Section 341 of IPC. Rs. 2000/- Simple imprisonment of one [1] month.
Section 8 and 12 of Simple 1 Month the POCSO Act r/w Imprisonment of Section 354 of the three [3] years and IPC Rs. 5,000/-. Section 385 of IPC. Rs. 5000/- 1 Month. Section 395 of the Rigorous 1 Month. IPC. Imprisonment of five [5] years and Rs. 5,000/-. Section 504 of the Rs. 2000/- 1 Month IPC. Section 506 of IPC. Rs. 2,000/- 1 Month Section 4 of POCSO Life Imprisonment Simple imprisonment.of Act r/w Section and Rs. 2,50,000/-. three [3] years. 376[d] of the IPC. Section 6 of POCSO Life Imprisonment Three [3] years of Act r/w Section and Rs. 2,50,000/-. Simple Imprisonment. 376[d] of the IPC.
The details of the conviction and sentence of the third accused and fourth accused [Sri Sunil and Sri Mahesh] Offences Imprisonment/Fine Default Imprisonment Section 341 of Rs. 2000/- Simple imprisonment of 1 IPC. month.
Section 8 and Simple Imprisonment of 1 Month 12 of the three [3] years and Rs.
POCSO Act r/w 5,000/- Section 354 of the IPC Section 504 of Rs. 2000/- 1 Month the IPC. Section 506 of Rs. 2,000/- 1 Month IPC.
2 This accused has not filed an appeal against his conviction.
-6- NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Section 4 of Life Imprisonment and 1 Month POCSO Act r/w Rs. 2,50,000/-. Section 376[d] of the IPC. Section 6 of Life Imprisonment and Three [3] years of Simple POCSO Act r/w Rs. 2,50,000/-. Imprisonment. Section 376[d] of the IPC.
The details of the conviction and sentence of Fifth Accused. [Sri Somshekhar] Offences Imprisonment/Fine Default Imprisonment Section 341 of Rs. 2000/- Simple imprisonment of IPC. 1 month.
Section 504 of Rs. 2000/- 1 Month the IPC. Section 506 of Rs. 2,000/- 1 Month IPC. Section 17 of Life Imprisonment and Rs. Three [3] years of POCSO Act. 5,00,000/-. simple imprisonment. 2. The Special Court has directed that the
sentences against the accused, both the respective term and life sentences, shall run concurrently. The Special Court, in view of the provisions of Section 33 [8] of the POCSO Act, Section 357A [2] and [3] of the Code of Criminal Procedure [for short, 'the Cr.P.C'] and Rule 7 of the Protection of Children from Sexual Offences Rules, 2012, has also imposed a fine of Rs. 5,21,000/- [to the first accused and the second accused], Rs. 5,11,000/- [to the third and fourth accused] and Rs. 5,06,000/- [to the fifth accused]. The -7- NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Special Court has directed these amounts to be given to the prosecutrix as compensation, and the Special Court has also directed the State Government to pay Rs. 2,00,000/- as compensation to the prosecutrix.
The Prosecutrix's case as stated in the first information dated 20.02.2017 [Ex - P 1]:
3. On 15.02.2017, the prosecutrix and the co- victim had been to Muttyanatti after 6 o' clock in the evening to watch sun set when the accused [and a juvenile offender] coming from the hill side detained them using vulgar language. The accused snatched their two mobiles and Rs.300/- from them. The accused pushed the prosecutrix and the co-victim into a more secluded place and compelled them to remove their dress/clothes and forced the co-victim to force himself on the prosecutrix while recording the occurrence with co-victim's mobile using the prosecutrix's mobile as a torch. The accused belittled the co-victim by calling him impotent because he could not force himself on the prosecutrix and threatening them that they would sexually assault her. Subsequently, the first to fourth -8- NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 accused took the prosecutrix further inside and each one of them committed rape on her and the fifth accused and the juvenile offender detained the co-victim abetting such crime.
3.1 The accused permitted the prosecutrix to put her dress on [without the undergarments] and the co- victim his clothes. The accused demanded a sum of Rs.20,000/- from them threatening to upload the video recorded by them if they failed to pay such amount. The incident occurred between 06:30 and 07:30 p.m., and they were detained at the same place till 09:00 p.m., and they later hitchhiked to Belagavi. The prosecutrix has named the assailants as Sri Sanju, Sri Suresh and Sri Mahesh because they were addressing themselves accordingly while stating that she came to know that they are from Muttyanatti. The Prosecution's case as in the Prosecutrix's further Statement - [Ex. P 2]
4. The prosecutrix's statement under Section 24 of the POCSO Act is recorded by a Woman Police Inspector [Smt. Shreedevi Patil - PW 31] from the Women -9- NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Police Station, Belagavi Town on 20.02.2017. The prosecutrix narrating the incident as stated above has further stated that the accused had snapped the petrol tube of the co-victim's bike and they were therefore forced to walk some distance on NH4 [Highway] past a Dhaba when they could hitchhike a ride in the car driven by Sri. Sandesh Patil [P.W.6]. They did not relate the incident to this witness and his companion but only told them that their phones were snatched. Sri. Sandesh Patil dropped them at K.L.E. Hospital, Belagavi. She spent a night outside the emergency ward in this hospital while the co-victim spent the night outside the emergency ward.
4.1 The prosecutrix, as regards the reason for not filing the first information immediately, has offered the following narration stating that she feared the accused would upload the offending video. The prosecutrix did not call her parents on 15.02.2017 as she typically did, but her mother called her in the evening of 16.02.2017 on the landline in the hostel enquiring why her mobile was switched off. She told her mother that her mobile was lost.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Her mother called her on 17.02.2017 to inform her that she was getting calls stating that her phone is located and enquiring where she had lost her mobile. She gave some lame excuse, but did not relate the incident. On 18.02.2017, her mother called again assuring her that she need not worry, her phone is located and that her father would come on Sunday [on 19.02.2017] to Belagavi. She did not relate the incident to her mother even then.
4.2 The prosecutrix has further narrated that her father visited her at the hostel on 19.02.2017 and started making persistent enquiries about the loss of her mobile. She only told him that six persons had snatched her mobile when she had gone out for a walk with the co-victim. Her father insisted on talking to the co-victim and therefore, she called him. She was asked to speak to him first, and the co-victim related that when he visited the place of occurrence on the next day, the first accused did not return the mobile but insisted on paying them the amount. He also told her that the first accused permitted him to take his SIM and that he had retrieved the motorcycle. Her father also
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 spoke to him after her, and her father informed him that if the mobile is not returned, a police complaint will have to be filed. Later, her father took her to the place of occurrence, and she showed him the place of occurrence albeit from a far distance.
4.3 The prosecutrix has explained that her received a call on his mobile [from 9482274124] as they returned to Belagavi from the place of occurrence. The caller informed her father that they were seen at the place of occurrence and they must return within the next half an hour because the caller had certain demands and threatened saying that if they did not return, an offending video would be uploaded bringing disrepute to the prosecutrix. After this telephone call, her father took her back to her native place [Annigeri] informing her that they can discuss what has transpired with their relative, Sri. Shirish Babaladi [P.W.5] and file a complaint if necessary.
4.4 The prosecutrix has also explained what transpired on 20.02.2017 leading to the first information
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 with the Kakati Police [the jurisdictional police] on this day. Her mother saw injuries on her back and limbs when she stepped out of the bathroom and enquired with her. Her mother also called her father, and both of them enquired about the reason for such injuries. She then disclosed to them the assault on her, and after discussing about filing a police complaint they left Annigeri by car. They reached Sri.Shirish Babaladi's residence in Belagavi. After ascertaining that the complaint had to be lodged with the jurisdictional police, they typed out her complaint on a laptop and filed it with the jurisdictional police.
4.5 The prosecutrix has stated that she came to know that the place of occurrence was Muttyanatti only when she visited this place with her father on 19.02.2017. The co-victim has visited Muttyanatti after the incident with two of his acquaintances. She has named the first, second and the third accused in the complaint and she has later remembered the name of the fourth accused. She stated specifically stating that the first to fourth accused have committed rape on her and that she does not remember the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 name of the other two assailants but she would give the names as and when she can recollect their names. She can identify each of the assailants if shown to her. She has had made a mistake in giving the registration number of the co- victim's motorcycle and she has furnished the landline number, her mobile numbers, including the mobile number obtained for her use in her father's name. The details of the Investigation
5. The jurisdictional police, upon receiving the prosecutrix's statement under Section 24 of the POCSO Act recorded by the Woman Police Inspector [Smt. Shreedevi Patil- PW31], has registered the FIR in Crime No. 38/2017. The essential details of the investigation are stated thus for reasons of convenience.
Date Details of the Procedure Exhibit conducted 20.02.2017 The Prosecutrix's parents [who are Ex P 60 examined as PW3 and PW4] have given their consent for the prosecutrix's medical examination, and she is examined accordingly.
The Doctor, who has examined the Ex P 100
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 prosecutrix and who is examined as PW 28 in the trial, has filed Medical Examination Report3, and this examination is at the Belgaum Institute of Medical Sciences, District Hospital, Belgaum.
21.02.2017 The first to third accused are arrested.
The police have seized the 'Coolpad Ex P 63
Mobile' [MO 16] from the first
accused under this Panchanama.
This mobile belongs to the co-victim.
The seizure is in the presence of Sri Gangadhar M. Gasare [PW. 15] and this witness supports the recovery4.
The audio and video recordings are Ex P 64 downloaded on to a laptop and the audio clip is transcribed under the Panchanama.
Simultaneously, the fourth accused is also arrested.
The specimen5 from the prosecutrix's Ex P 65
person is sealed under this
Mahazar.
22.02.2017 A Spot Panchanama and Sketch of Ex P 66
3 The details of these Medical Examination Reports and Forensic
Reports are elaborated in a separate table later in this judgement. 4 The prosecution contends that further proceedings even after this date and the arrest of the other accused are in the presence of this witness, and this witness has supported all these proceedings. 5 The seized Specimens are mentioned Material Object's List.
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the spot are drawn in the presence [The
of the prosecutrix and Sri Gangadhar Panchnama]
M. Gasare [PW. 15]. and Ex P 67
[Sketch] -
[The photos
of the
procedure in
this regard
are are
marked in
Ex P 3- 11]
The Medical Examination Report of Ex P 168-
the first to fourth accused with the 171
Doctor opining that there is nothing
to indicate these persons are
incapable of having sexual
intercourse.
The prosecutrix's statement is Ex P 12
recorded by the learned
Magistrate under Section 164 of
the Cr.P.C.
23.02.2017 The IO has taken first to third Ex P 70 [The
accused to carry out Spot Panchanam
Panchanama. a]
[The photos
of the
procedure in
this regard
are are
marked in Ex
P 71 to Ex P
74.]
24.02.2017 The IO has recorded the audio Ex P 80
samples of the first to fourth
accused.
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28.02.2017 The fifth accused is arrested. 01.03.2017 The co-victim gave his statement Ex P 14 under Section 164 of the CRPC.
The IO has recorded the voluntary Ex P 81 statement of the juvenile offender [the sixth accused, aged about 15 years] who was with the other accused persons at the time of the incident.
------------- These exhibits indicate that IO has Ex P 108- recorded the sample voice recordings 133 of the fifth accused [Ex P 136] and juvenile offender [Ex P 141] and certain CDs are received from the Truth Lab after forensic examination.
01.03.2017 The fifth accused is taken for Ex P 106
medical examination and certain
medical samples [Ex P 144] are
collected.
The IO has recorded the sample Ex P 145
voice recording of the co-victim.
02.03.2017 The co-victim and the juvenile Ex P 166
offender are taken for medical and 180
examination.
10.03.2017 The prosecutrix and the co-victim are Ex P 17-53
summoned by a notice on this day
and a Test Identification Parade [TIP] and Photo Identification [Parade] are
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Details of Material Objects collected during the course of the investigation:
6. The details of the material objects recovered during the course of the investigation from the prosecutrix, the co-victim and the accused are detailed separately in terms of the following table.
Recovery from the Prosecutrix and her belongings Mahazar/ Photograph of Mahazar Material MO Proceedings and its details thereof Objects Number Ex. P 65 dated 21.02.2017 - Panchanama Finger Nail MO 1 at the time when the Doctor has collected specimen from the prosecutrix when she Pubic Hair MO 2 underwent a medical examination. Axillary hair MO 3 Vaginal MO 4 Smear Vaginal MO 5 Swab Ex. P 66 dated 22.02.2017 -Panchanama White Bra MO 6 for the recoveries from the place of occurrence. White Slips MO 7 White Laadi MO 8 Jangali MO 9 Badige Ex. P 68 dated 22.02.2017 - Panchanama Black for the recoveries from the prosecutrix. Chudidaar MO 10 Top White Odni MO 11 6 The details of the TIP in respect of the Juvenile Offender are in Ex P 145 and 146.
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White
Chudidaar MO 12
Pant
Ex P 63 dated 21.02.2017- Panchanama of Mobile of MO 19
the recovery from the second accused. the
prosecutrix
Recovery from the co-victim:
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 69 dated 22.02.2017.-
Panchanama of the recoveries from the co- White Shirt MO 13 victim.
Jeans pant MO 14
Blue
MO 15
Underwear
Vodafone
MO 17
Sim
Jio Sim MO 18
Ex. P 63 dated 21.02.2017-
Cool Pad
Panchanama of the recovery from second MO 16
Mobile [
accused.
Recovery from the first accused:
Mahazar/ Photograph of Mahazar Material MO Number
Proceedings and its details thereof Objects
Ex. P 75 dated 21.02.2017: The
Panchanama for recovery from the first Brown
accused. Jeans MO 20
Blue Shirt MO 21
Underwear MO 22
Lenovo
Phone MO 23
BSNL Sim MO 24
Jio Sim MO 25
Memory
Card MO 26
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Recovery from the Second Accused
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 75 dated 22.02.2017: The Brown Pant MO 27
Panchanama for recovery from the second Red striped accused. T-shirt MO 28 Brown underwear MO 29 Samsung Phone MO 30 Recovery from the third Accused Mahazar/ Photograph of Mahazar Material MO Proceedings and its details thereof Objects Number Ex. P 75 dated 23.02.2017.
Panchanama for recovery from the third accused.
Blue Jeans MO 31
White Shirt MO 32
Brown
underwear MO 33
Recovery from the Fourth Accused:
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 134 dated 25.02.2017. Black Pant MO 36
Panchanama of the recovery from the Blue and fourth accused. white chequered shirt MO 37 Grey colour Underwear MO 38 China Company Mobile with Sim MO 39 Recovery from the fifth accused Mahazar/ Photograph of Mahazar Material MO Proceedings and its details thereof Objects Number
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Ex P 137 dated 28.02.2017.
Panchanama of recovery from the fifth Jeans Pant MO 40 accused.
Chequered MO 41 Shirt Orange MO 42 Under wear Samsung MO 43 Mobile Airtel and MO 44 & Zio Sim 45 IMEI No. MO 46 Ex. P 144 dated 01.03.2017; Panchanama at the time when the Doctor has collected specimen from the fifth accused when he Public Hair MO 34 was subjected to a medical examination Nail Extracts MO 35 The details of the Regional Forensic Science Laboratory Report.
7. The Material Objects collected as aforementioned are sent to a Regional Forensic Science Laboratory for examination and the details of the same reads as under:
Material Objects sent The person to whom Article number assigned for forensic it belongs to. in the RFSL Examination. Examination MO 1- MO 8 and MO The prosecutrix Article Nos. 1 to 11 10-12 MO 13-15 The co-victim Article Nos. 12 to 14 MO 20-22 Sri. Sanju [the first Article Nos. 15 to 17 accused] MO 27-29 Sri. Suresh [the Article Nos 18 to 20 second accused] MO 31-33 Sri. Sunil [the third Article Nos. 21 to 23 accused] MO 36-38 Sri. Mahesh [the Article Nos 24 to 26 fourth accused] MO 40-42 and MO 34- Sri. Somashekhar [the Article Nos. 27 to 31
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 35 fifth accused] The RFSL has examined these articles, and its report in this regard is dated 09.05.2017 and the material part of the report reads as under:
1. Seminal stains were detected in Article Nos. 17, 20 and 26.
2. Seminal stains were not detected in Article Nos 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 21, 22, 23, 24, 25, 27, 28, 29 and 30.
3. Blood stains were detected in Article nos. 5 and 31.
4. Blood stains were not detected in Article nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30.
5. Skin tissue was detected in Article no. 31.
6. Skin tissue was not detected in Article no.1.
7. Spermatozoa was not detected in Article no. 4.
Details of the medical examination conducted, the reports thereof:
8. The details of the aforementioned medical examination of the prosecutrix, co-victim and all of the accused are follows:
Concerned Person Exhibits/ Details of the injuries Date of medical recorded/Medical examination Opinion conducted.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The prosecutrix. Ex P 104 dated In the Wound Certificate, 20.02.2017 the Doctor who has examined the prosecutrix has opined that [i] there are multiple abrasions of brown colour on right and left shoulder, the clavicle, upper arm, lower arm, wrist, elbow, hand and buttocks, [ii] minor abrasions on spine scapula region, legs, patella, both thighs and feet, and [iii] contusion of greenish colour in the upper medial quadrant of the right breast nipple and areola.
In this report it is also stated by the doctor that the findings are suggestive that the lady is used to an act like that sexual intercourse.
The co-victim Ex P 167 dated The doctor has recorded 20.02.2017. that there are no external injuries.
The first accused Ex P 168- P 171 dated The doctor has recorded The second accused 22.02.2017. that there are no external The third accused injuries seen in external The fourth accused genitalia while also opining that there is The fifth accused Ex P 106 dated nothing to suggest that 01.03.2017 he is incapable of sexual The juvenile Ex P 180 dated intercourse.
offender. 02.03.2017 The commencement of trial
9. The jurisdictional police have filed the chargesheet against the accused, and with the accused pleading not guilty, the trial is commenced with the prosecution examining 33 witnesses [PW1 to 33] including
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 the prosecutrix, the co-victim, their respective parents and relatives, a mahazar witness, a photographer, the Doctor who has examined the prosecutrix, the expert who has analysed video/audio [specimen] and some other witnesses, including the official witnesses who have drawn the sketch of the place of occurrence and who have assisted the police in completing the investigation. The evidence of the material witnesses is discussed as hereunder.
The evidence of Prosecutrix and her parents:
10. The evidence of Prosecutrix: The prosecutrix is examined as PW. 1 and her parents are examined as PW. 3 and 4. The prosecutrix, as regards her family and education, has stated thus. She resides in Annigeri with her parents, a younger brother and both paternal and maternal grandmothers and that she has studied up to 10th standard in Annigeri. She has completed second PUC in Prerana College in Hubballi, and from the year 2016, she is studying medicine in JNMC college, Belagavi. She stays in the college's hostel [Akkamahadevi Hostel]. The prosecutrix's evidence as regards her acquaintance with the co- victim is
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 that they were classmates while studying 6th to 10th standard and that the co-victim is pursuing diploma in engineering with RNS Engineering College.
10.1 The prosecutrix, on what transpired on 15.02.2017 has deposed in the following terms. The co- victim called her on her mobile, when she was in the hostel, at about 5:30 p.m. on 15.02.2017 suggesting that they go out for some time. The co-victim picked her up from the hostel on his bike and they reached Muttyanatti at about 6 PM. They were together at the first Windmill for about 15 minutes when about six boys reached this place. One amongst the six boys, assaulted the co-victim.
10.2 The prosecutrix identifies the person who first assaults the co-victim, and her evidence in this regard is relied upon, amongst others, by Sri Ashok R Kalyanashetty, the learned counsel for the appellants, to contend that the presence of one of the accused7 is not established. The prosecutrix has identified the fifth accused 7 This is with reference to the fifth accused.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 as the person who first assaulted the co-victim, but when this accused gives out his name at the Court's instance, the prosecutrix identifies the first accused as the person who first assaulted the co-victim. The prosecutrix has volunteered to say that because the incident is about seven months prior to the date of her evidence she could not immediately identify the accused and therefore she has pointed out to the fifth accused as the assailant but it is the first accused who has assaulted the co-victim first.
10.3 The other accused detained her and the co- victim; and snatched their respective mobiles and ₹ 300/- that was with them while also assaulting. The second accused, who is identified in the Special Court without any error, snatched her Duel SIM mobile [Moto Company mobile]8. The accused dragged them into an area that was more densely covered with trees and, at the first instance; they compelled her to remove her dress. When compelled by the accused, she only removed her external wear [her dress] 8 She has also furnished one of the mobile numbers stating that she cannot remember the other mobile number
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 but the accused pulled out her inner wear. Next, the accused forcibly removed the co-victim's clothes and made both of them nude.
10.4 The accused started compelling the co- victim to have sexual intercourse with her and that when he pleaded with them, the accused started threatening them saying that if he did not do so they would have sexual intercourse with her. When she started screaming, the accused gagged her and started abusing her using obscene expressions. The accused also forced her to participate in sexual intercourse with the co-victim being very abusive9. The accused switched on the torch in her mobile and started recording her and the co-victim compelling them to be in a compromising position.
10.5 The first to fourth accused separated her and the co-victim by taking her further into a more covered area but within earshot of the others and that the fifth accused [with the assistance of the juvenile offender] 9 The prosecutrix's evidence is recorded in Kannada, and she has mentioned that the accused were insisting on she doing a particular act so that the co- victim would commit sexual intercourse with her.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 detained the co-victim. These four accused took turn in sexually assaulting her and thereafter, they dragged her to where the fifth accused and the juvenile offender had detained the co-victim. She and the co-victim were shown the video recording threatening them that this video would be telecast. The video essentially contains some part of the co-victim and she being in a compromising position under duress. They were also threatened about relating the incident to any person stating that if the video was uploaded they would be maligned. When she and the co-victim requested for return of the mobile, the accused insisted upon them to pay Rs.20,000/-and take the mobiles.
10.6 The accused permitted them to put on their clothes but essentially their external wear but telling them that they must pay Rs. 20,000/- on the next day and take back their mobiles, and it is only after the co-victim and she were thus humiliated and assaulted they were let to leave the place of occurrence. The co-victim and she could not return on the bike because the bike-key was lost during the episode and they walked up to the Highway and reached a
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 nearby Dhaba and started waiting for a vehicle to hitchhike. As they were walking along the Highway expecting a vehicle to stop, Sri Sandesh Patil [PW 6] stopped his vehicle and dropped them at K L E Hospital, Belagavi. Sri Sandesh Patil was accompanied by another person but she cannot remember the name of this person. He enquired about why there were trying to hitchhike so late in the evening, and they only told him that the mobile was lost. While dropping them at the Hospital, he shared his mobile with them and also gave Rs.100/-.
10.7 She spent the night near the emergency ward of the Hospital and that the co-victim was waiting outside. Sri Sandesh Patil visited the Hospital on the next day and dropped her at the hostel. She called home from the hostel's landline. Her family members enquired with her as to why she had not called the previous evening, and she only stated, without mentioning the incident, that she had left her mobile in the laboratory. She again called her family, as she normally did, even the next day, but somebody from amongst the accused had called her mother
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 using one of her SIM card [JIO SIM Card] and told her that she had lost the mobile. Her mother informed the caller that the number did not belong to her because her family members did not know that she had subscribed for another SIM number.
10.8 Later, the accused using the same number have called her cousins informing then that she had lost her mobile and they had found it. Her mother came to know that she had lost her mobile only when her cousins called her and told her that they were also receiving such calls. Her mother then called the JIO number from which she had received calls and informed the accused that she had lost her mobile. When her father was informed that she had lost her mobile and somebody was calling, her father called back on the same number and informed the caller that the mobile would be collected on the next Sunday. Her mother called her on 18.02.2017 and also informed her that the lost mobile will be collected on Sunday [19.02.2017].
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 10.9 On 19.02.2017 her father visited her at the hostel and enquired with her how she had lost the mobile, and she then told him, without disclosing any other detail, that she had gone with the co-victim when the mobile was lost. Her father asked her to call the co-victim, and she accordingly called him. The co-victim then told her that the next day he had gone to the place of occurrence to retrieve the bike and that the accused were insisting upon payment of Rs. 20,000/-. Her father also spoke to the co-victim, and before disconnecting, her father told him that if the mobile was not located/traced, police complaint may have to be lodged.
10.10 Thereafter, she accompanied her father to the place of occurrence when he wanted to go there, and on their return to Belagavi, when they were near Ramdev Hotel one of the accused called her father on his mobile and told him that they had seen them visiting the place of occurrence and that if they did not return within half an hour, her future will be affected. The accused informed her father that she had gone wayward and that they had some demands to
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 be met. One of their relative Sri Shirish Babaladi [PW 5] was present with them when her father took this call and they returned to Annigeri.
10.11 On the next day when she stepped out of the bathroom, her mother noticed injuries on her and started making enquiries because, even as of that time, she had not told either her mother or father about the incident. When her mother persistently enquired, she related the entire incident, and her mother informed her father. She and her parents came to Belagavi to file a complaint, and after discussing with Sri Shirish Babaladi, the complaint [Ex P1] is lodged and she was referred to Belagavi [BIMS] hospital on the same evening for medical examination. She spent the night in the hospital, and she was examined until the next afternoon with certain specimens [MO 1- 5] being taken from her. After she was sent home from the hospital, she was at Sri Shirish Babaladi's residence when women PSI, Smt. Shreedevi Patil [PW 31], called on her to record her statement [Ex P2] under Section 24 of the POCSO Act. The
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 recording of the statement was captured on video and photographed.
10.12 The jurisdictional police on 22.02.2017, took her to the place of occurrence and she showed the police the places where the incident occurred10. The jurisdictional police recovered her inner wear [MO 6-9]. She has also produced and the dress that she was wearing [M.O. 10-12] at the time of occurrence. She has given her statement with the learned Magistrate as per Ex P 12. Later, on 10.03.2017, the police took her to the office of Belagavi Tahsildar where she was shown mug shots of different persons, and she was asked to identify the accused. She has identified the mugshots of the accused11. She has next identified the records relied upon by the prosecution to establish that she is born on 19.03.1999 while stating that the video clip recorded by the accused is in M.O. 16 [the co-victim's mobile].
10 The prosecutrix is shown the photographs of the place and she has identified the photographs [Ex P4 -P 11] 11 The prosecutrix has identified the mug shots shown to her [Ex. P 27-41] and the proceedings drawn by the Tahsildar [Ex. P 42-P53] and her signatures in these proceedings [Ex. P 42a - P 53a].
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 10.13 The cross-examination of the prosecutrix:
The prosecutrix has been subjected to cross-examination separately by the accused over almost a period of two years.
The prosecutrix's chief-examination is completed on
11.10.2017 and she is first cross-examined on 07.11.2017, but her cross-examination is completed on 15.05.2019. The Special Court has observed that this delay is because of the transfer of the presiding Officer. This Court must at the very outset observe that the cross-examination in the initial hearing dates is essentially to suggest that her entire evidence is false.
10.14 The prosecutrix is specifically cross- examined as regards evidence about her age and a few other aspects. The cross-examination is that according to Ex. P 54 [the prosecutrix's Birth Certificate issued in the year 1999], her date of birth is 08.04.1999, but it is seen from this Exhibit that the prosecutrix's age is mentioned as 19.03.1999 and the certificate is issued on 03.05.1999. It is also suggested to the prosecutrix that she had completed 16
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 and 18 years as of the day she completed respectively her 10th standard and second PUC, but she is categorical that she had only completed 15 and 17 years respectively because she was admitted one year earlier than usually the children are admitted to school.
10.15 Though the prosecutrix is cross- examined on the proof of age submitted for obtaining passport and Aadhaar card, this Court must observe that she is consistent that her date of birth in these documents is mentioned based on the birth certificate showing that she was born on 19.03.1999. The prosecutrix is confronted with the records of the proceedings in Criminal Miscellaneous No. 387/2017 commenced by her with the jurisdictional court under the provisions of the Registration of Birth and Death Act, 1969. The prosecutrix has admitted these records [Ex. D1-D5] and has also admitted that the directions by the learned judge to mention her name in the Register of Birth cannot be conclusive proof and in case of a dispute the entries in such register will be subject to proof.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 10.16 The prosecutrix is also cross-examined about the distance between the different places where the accused dragged her and the co-victim, but the prosecutrix is very substantially consistent with her statements in the examination-in-chief. When she is cross-examined about she staying at the emergency ward but not taking any treatment when Sri Sandesh Patil [PW -6] left her at the Hospital, she has stated that the witness had told her to stay at the entrance emergency ward as that would be a safe place, and when cross-examined about her interaction with the co-victim after the incident, she has reiterated that she did not speak to him until her father insisted upon her to call him. The prosecutrix has also been elaborately cross- examined on when the complainant was typed and when she visited the police station. The prosecutrix has stated that when she reached the police station along with her parents and Sri Shirish Babaladi it was about 4 PM in the evening and that the complaint was typed on her laptop at home but after the police informed her parents that they must come with a written complaint.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 10.17 The prosecutrix, under intense cross- examination, has admitted that in the complaint she has stated that there were only three persons but in her statement [Ex. P2] to the woman PSI [Smt. Shreedevi Patil - PW 31] and in her statement with the jurisdictional Magistrate [Ex. P12] she has stated about the fourth accused, but she has explained stating that there is an error in mentioning that there were only three persons. The prosecutrix has also stated that the Mahazar was typed at the place of occurrence but the laptop is not seen in the photographs marked as exhibits. On the last date of the prosecutrix's cross examination [23.01.2019], it is suggested to her that she and the co-victim were engaged in sexual intercourse at the place of occurrence when they were seen by the villagers, some of the villages have recorded the same, and she has lodged a false complaint to implicate the accused.
10.18 The evidence of prosecutrix's parents [PW 3 and 4]: The prosecutrix's father is examined as PW-3 and
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 her mother is examined as PW-4. The father, while essentially stating what his wife [the prosecutrix's mother] told him about somebody calling on her mobile informing that the prosecutrix's mobile was found in a KFC joint, has stated that when he and his wife informed the prosecutrix that her mobile was traced, she offered to collect but he told her that they will collect the mobile from the concerned person when he came to Belagavi on next Sunday [19.02.2017]. He has also stated about the prosecutrix relating the occurrence and the threat held out by the accused and about lodging complaint with the police with the assistance of Sri Shirish Babaladi [PW-5].
10.19 The cross-examination of this witness is also essentially to deny the statement in the chief examination, but when asked about the reason for initiation of proceedings under the Registration of Births and Deaths Act, 1969, he has stated that such proceedings is initiated because the concerned officials informed that the prosecutrix's name was not mentioned in the concerned register. On the drafting of the complainant [Ex. P1], the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 prosecutrix's father has stated that the contents of the complainant were indeed discussed amongst themselves in the residence of Sri Shirish Babaladi and the complaint was typed into the laptop by this person. He has also stated that Sri Shirish Babaladi stepped out of the residence to obtain suggestions on corrections in the complaint and he does not know from whom he solicited suggestions but only to say later that Sri Shirish Babaladi had stepped out to secure suggestions and get a printout Sri Shirish Babaladi.
10.20 The prosecutrix's mother has primarily stated what the prosecutrix has stated about not calling home on 15.02.2017 and she calling the prosecutrix on the hostel land line. However, she has stated that on 17.02.2017, a young boy called her stating that the prosecutrix [her daughter] had lost the mobile, but she told him that her daughter had not lost her mobile.
10.21 When her relative [Smt. Kalyani Patil] called her and told her that even she was informed over telephone that the prosecutrix's mobile is found, she called the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 number from which she had received her call, and when enquired, the person on the other side informed her that her mobile number was saved as 'Avva12' and therefore he had called her. This youngster also told her to call on her daughter's number if she or any other family member wanted to talk, and she informed them that her husband, who was scheduled to travel to Belagavi on 19.02.2017, will collect the mobile from him.
10.22 The prosecutrix's mother has stated that she informed her husband about the call, and that when her husband on 19.02.2017 called on the prosecutrix's mobile number to get in touch with the youngster who had called, the mobile was switched off and therefore her husband asked her to call the number because he will be driving. She called the number, and when somebody responded, she asked the person not to switch of the mobile as her husband was driving to Belagavi to collect the mobile. The prosecutrix's mother has next spoken about her husband instructing her, when he returned home with the 12 The expression "Avva" in vernacular is for ''mother''.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 prosecutrix on 19.02.2017 at about 11 PM, not to ask the prosecutrix anything. She has stated that she has made enquiries with the prosecutrix the next day only when she found injuries on her.
10.23 The cross-examination of this witness is also to contest the statements made in the chief examination about she noticing the injuries on the prosecutrix when she stepped out after the bath on 20.02.2017. In fact, the witness has stated that when she examined the prosecutrix's person for the injuries, when she stepped out of the bath, she found abrasion injuries on the prosecutrix's back and lower limb and that two of such injuries, though superficial, were big. The witnesses also admitted that the contents of the complaint are discussed with Sri Shirish Babaladi [PW - 5]. The defence suggested to this witness that her daughter [the prosecutrix] and the co-victim were found by villagers at the place of occurrence in a compromising position and the villagers assaulted them.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The evidence of the co-victim and his parents and a cousin.
11. The evidence of the co-victim [PW2]: The co- victim in his chief examination, on what transpired on 15.02.2017 and on the next morning, is consistent with the evidence given by the prosecutrix in detailing that the first accused assaulted him, compelling the prosecutrix to disrobe and forcibly removing his clothes and the prosecutrix's underwear to make both nude, compelling him and the prosecutrix to be in a compromising position taunting him for his inability and abusing the prosecutrix to get into a compromising position, recording the conduct using his mobile and the prosecutrix's mobile as a torch, the first to fourth accused dragging the prosecutrix aside and the fifth accused and the juvenile offender holding him back, and the first to fourth accused committing rape of the prosecutrix.
11.1 The witness, in addition, has stated that when he requested with the accused to let them go assuring them that he would get money from his father, the first,
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 fourth and the fifth accused kicked and hit him and the fifth accused also hit the prosecutrix. He can identify the accused by name as well because they were addressing each other by their names. The co-victim has also stated about the accused holding out threat of public humiliation and loss of honour if the incident was related to any person.
11.2 The co-victim, on the efforts made by him to retrieve the motorbike and the mobile retained by the accused at the place of occurrence on 15.02.2017, has stated that he called his cousin [Sri. Vishal Kamalapura - PW 713] on 16.02 2017 to accompany him to the place of occurrence to get back the bike without giving all the details of the incident and only stating that because the petrol pipe was disconnected, he had to leave the bike at Muttyanatti. When they reached the place of occurrence, they found the handle of the bike damaged and the bike's key was also lost at the place the previous evening. He and his cousin [PW-7] 13 This witness has essentially spoken about what he and the co-
victim did on 16.02.2017, and Shri Ashok R Kalyanashetty, has pointed out in the course of argument that, unlike the co-victim, this witness has stated that they had gone to a garage to get a duplicate key done and because ₹ 400 was demanded, they went back to the co-victim's house to get a duplicate key.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 came back and returned with the spare key at home and collected the bike.
11.3 On the next day, on 17.02.2017, he requested two of his friends from his college [again without informing them about the incident entirely] to accompany him to the place of occurrence after the first accused responded to the call on the prosecutrix's number. When he reached a dhaba near the place of occurrence, as instructed by the first accused, he requested his two friends to stay out and he went inside. He met the first accused there and requested for return of the mobile, who told him that the mobile will not be returned unless the amount is paid. The first accused relented only to return the SIM card but telling him that he must make arrangements for the money at the earliest. On 18.02.2017, he requested his friend, Sri Rohit, to call on the prosecutrix's mobile number, who after so calling said that he will not be able to retrieve the mobiles until the amount was paid, and his friend has assured to help in organising the fund.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 11.4 The co-victim has next spoken about receiving a call from the jurisdictional police on 20.02.2017, visiting the police station, the police recording the statement on 22.02.2017, he making over the the bill that he had saved for the purchase of his mobile, the bike records and the clothes he was wearing at the time of the incident. The co-victim has identified his clothes [M.O. 13-15] and his Coolpad Mobile [M.O. 16]. The receipt for purchase of his mobile is marked as Ex. P 13.
11.5 The co-victim has also spoken about his statement being recorded by the learned Magistrate [Ex P 14] and that he has been subjected to medical examination as also voice recording. The co-victim has identified the photographs taken at the time of recording his voice samples. The co-victim has spoken about the Test Identification Parade conducted at Hindalga Jail. In this regard, the co-victim has stated he has identified the accused referring to the proceedings drawn about the same admitting his signatures [Ex. P 17 -P 26 and Ex. 17a - 26a] while emphasising that during the identification parade only
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 the Tahsildar and his office members were present and the police was outside the office. The co-victim has also opened the Coolpad mobile using the password, and upon seeing the video clip concerned, he has identified that the video clip relates to the incident.
11.6 On the cross-examination of the co-victim:
The learned counsel for the accused have not immediately cross-examined the co-victim, and as in the case of the prosecutrix, the cross-examination of the co-victim is after a substantial break. The co-victim's chief examination is completed on 11.10.2017. The cross-examination of this witness on behalf of the first accused is taken as Nil on 15.02.2019, but with the Special Court, on an application filed, permitting cross-examination, the witness is cross-
examined on behalf of all the accused between 03.06.2019 and 05.08.2019.
11.7 The initial cross-examination of the co- victim is suggestions to deny the evidence rendered by him about how he and the prosecutrix were accosted, detained,
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 pushed away from the Windmill and compelled to remove their clothes. This witness is cross-examined in detail about the location of the Windmill from the metalled road and the distance that they were taken in, but this Court, on reading of this cross-examination and the sketch as per Ex. P 67 conjointly, must opine that this witness is very consistent in describing not just the locations of the different places but also in mentioning the distances from one place of incident to another place of incident.
11.8 The co-victim is next cross-examined about the highway being widely used and the place of occurrence being used by the villagers for open defecation and to visit the nearby cultivable lands. The cross-examination in this regard, including the cross-examination on the jurisdictional police station being very close to the place of occurrence, is to bring out that if there were to be any incident, many people would have come to know about it. However, the co- victim has admitted certain suggestions in this regard, but crucially states in categorical terms that at the time of occurrence there was nobody near the place of occurrence.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 11.9 During the cross-examination of the co- victim, certain parts of the statements to the police under Section 161 of Cr.P.C marked as Ex.s D6 and D7. The first Exhibit relates to a statement to the police that he switched off his mobile because the prosecutrix's father while talking to him on 19.02.2017 threatened him about filing a complaint with the police against him if he did not get back the prosecutrix's mobile and SIM. This part of the statement is confronted after the co-victim is categorical that the prosecutrix's father only told them about lodging a complaint but not against him or against any person in particular. The next Exhibit relates to his statement that because his mobile was switched off for reasons as aforesaid, the police contacted his brother on his mobile. In this part of the cross-examination, the co-victim has also stated that he cannot definitely say whether the fifth accused was present at the place of occurrence.
11.10 The co-victim is next cross-examined in detail about the Test Identification Parade at the Hindalaga Jail, but the co-victim is consistent in deposing that nobody
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 assisted him in identifying the accused but stating that it is possible that he was shown the photographs of the accused at the police station. Though this witness has stated that he has not signed the Test Identification Parade proceedings insofar as the second accused [despite these proceedings being signed by him], he is steadfast in his evidence, even in his cross examination, that he has identified this accused in the Identification Parade and he was part of the group of people who assaulted him and the prosecutrix.
11.11 However, the co-victim in his cross- examination, on 29.07.2019, at the instance of the learned counsel for the fifth accused, has stated that [i] he has not identified the fifth accused in the Special Court because he was not present at the place of occurrence, [ii] the fifth accused is not related to the incident, [iii] he has made an error in mentioning the fifth accused's name in the statement before the learned Magistrate and in his chief examination, [iv] he has identified this accused even in the Test Identification Parade by an error and [v] he has seen the fifth accused for the first time in the police station. This witness,
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 like the prosecutrix, has denied the assertion that a false case is filed only because both of them were caught in a compromising position by the villagers.
12. The evidence of the co-victim's parents and elder brother: The co-victim's father [PW-8] has stated in his evidence that he called his son [the co-victim] on two occasions on 15.02.2017; on the first occasion, his mobile was switched of and on the second occasion he could hear some loud exchange of voices but he did not cross verify with his son when he spoke to him next because he thought it must be amongst his friends. The father has also stated that, because he was posted outside Belagavi being an employee of the Fire Department, he left home early in the morning on 16.02.2017 but his son had not returned, and that when he returned home that evening, he found his son at home but with a swollen face and when he enquired he did not respond.
12.1 The co-victim's mother is examined as PW-
9. This witness has only stated that the co-victim did not
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 return home until 16.02.2017 afternoon and that he did not tell her anything though she repeatedly asked him about the injuries. This witness, as emphasized by Sri Ashok R Kalyanashetty has stated that the jurisdictional police called on 19.02.2017 and she learnt about the incident from them. There is nothing material in the cross-examination of this witness to undermine her evidence that her son did not return home on 15.02.2017. The evidence of the co-victim's brother [PW 10] is also in similar lines. The merits of their evidence that the police called them on 19.02.2017 are examined later in the course of this judgement. Evidence of unofficial witnesses
13. The evidence of Sri Shirish Babaladi [PW-5]:
Sri Shirish Babaladi is related to the prosecutrix, and not only she but also her parents have referred to the role played by this witness in filing the complaint as per Ex. P1.
This witness has stated that he is related to the prosecutrix's father and that though he works in Sholapur he visits Belgaum regularly because his parents stay there.
He has stated that on 19.02.2017 he was at home in
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Belagavi when the prosecutrix's father called him and told them that he was visiting him in connection with the loss of prosecutrix's mobile, but he did not meet him because he had some work.
13.1 Sri Shirish Babaladi has further stated that he was present with the prosecutrix and her father in the evening near Ramadev Hotel, when her father received a call, and he has spoken about the information that is given by the caller to the prosecutrix's father and the limited information given by the prosecutrix at that time. He has next stated about the prosecutrix and her father leaving to Annigeri and her father calling him back in the morning to say that they were coming to Belagavi to lodge a complaint because of what the prosecutrix had told them that morning. In the cross-examination he has stated that the complaint was typed on his laptop and could have been typed either by the prosecutrix or her parents. He has also stated that he has visited the police station first and briefed the police about the incident, and that is even before the prosecutrix and accused could come to the police station.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 13.2 On consulting somebody in drafting the complainant, Sri Shirish Babaladi has stated he did not consult anybody and it is possible that the prosecutrix's father could have consulted some advocate. As pointed out by Sri Ashok R. Kalyanashetty, in the last part of his cross- examination, Sri Shirish Babaladi has stated that it is true that he learned from the prosecutrix that she and the co- victim were found in a compromising position by the villagers and that to save the prosecutrix's honour, the subject complaint is filed. The reliance on this part of cross- examination is examined in the light of the grounds canvassed by both Sri. M B Gundawade and Smt. Anuradha Deshpande, the learned Special Public Prosecutor, and the learned Amicus Curiae appointed to assist this Court.
13.3 The learned counsels canvass that this one- off statement cannot undermine the prosecution's case, especially with the prosecutrix being steadfast and her testimony being materially corroborated by the co-victim and other circumstances. In fact, Smt. Anuradha Deshpande canvasses that this Court must consider the question
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 whether this one of statement in cross-examination could undermine the prosecutrix's testimony in the light of the proposition that the courts are always cognizant of the rather irrefutable position that neither a sexual assault victim nor her family members come out in the open easily and lodged a complaint lest the victim's name is sullied and that in this case both the prosecutrix and her parents have come out in support of initiation of proceedings against the accused.
14. The evidence of Sri Sandesh Shankaragouda Patil [PW -6]: Sri Sandesh Shankaragouda Patil, who has stated in his cross-examination that he is not related to the prosecutrix, has deposed that on 15.02.2017 he had gone with his cousin for dinner at a Dhabha and when he was returning to Belagavi [his place of residence] the prosecutrix and the co-victim stopped the vehicle and requested for lift to Belagavi. He suspected that they were runaways, and when he insisted, the prosecutrix and the co-victim told him that they had been to watch sunset and some miscreants had assaulted them and taken their mobile, cash and two-
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 wheeler. He has also stated that he dropped both of them at the Casualty of KLE Hospital and gave the prosecutrix a sum of Rs.100/- and a shawl.
15. Sri Sandesh Shankaragouda Patil has further stated that he visited the hospital next day to find only the prosecutrix at the Hospital who requested him to drop her at her Hostel. He has stated, in what could be a departure from the prosecutrix's evidence, that she told him about the incident and he advised her to inform her parents and lodge a complaint and that he came to know about after few days that the prosecutrix had indeed lodged a complaint. In the cross-examination, he has admitted the location of the Dhabha and the police station on the Highway as well as the different commercial establishment in the immediate vicinity of the Dhabha, and he has also stated that he had not gone to hospital next day specifically to meet the prosecutrix but had gone there to visit a friend's ailing father.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021
16. The evidence of landlords and owners of the concerned to two-wheelers: The prosecution has examined the landlords [PW 11, 12 and 17] who have allegedly rented accommodation to the accused. These witnesses have spoken about renting out the premises to the accused, but their evidence is not helpful to the prosecution in any manner. The prosecution has next examined the owners of the vehicles [PW 14, 18 and 20] which according to the prosecution were used by the accused to reach Muttyanatti on 15.02.2017, and even this evidence is not helpful to the prosecution inasmuch as PW 18 and 20 [the relatives of the first and the fifth accused] have denied permitting these accused to use their respective vehicles and PW 14 has only stated that his two wheeler was stolen but he has taken possession after the orders of the Special Court on his application.
17. Evidence of the Panchas in whose presence Mahazars are drawn: The prosecution contends that Spot Mahazars [both at the place of occurrence and the respective places of residence of the accused, [voluntary statement of
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 the accused, recoveries from accused, downloading of the video clip from the recovered mobile/ Coolpad and recording of voice of the accused' specimen was conducted in the presence of two common panchas [Sri Gangadhar Maruti Ghasari and Sri Arjuna Yellappa Sambargi]. However of these two persons only Sri Gangadhar Maruti Ghasari is examined and he is examined as PW 15.
17.1 This witness, though has initially stated in this Chief-examination that he is related to the prosecutrix's father, has in the cross-examination clarified that is not related to him and that he was on his way in his car for purchase when the police stopped him and asked him to participate in the investigation procedure, and because he was certain that the prosecutrix is wronged he offered to participate in the proceedings and he has accordingly participated.
17.2 This Court must observe that according to the prosecution the recoveries from the fifth accused [M.O. 40-46] and the spot mahazar at his residence are on
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 28.02.2017. The exhibits in this regard are marked as Ex.s P 137-139. Sri Gangadhar Maruti Ghasari, while supporting the prosecution's case entirely on the other recoveries and Mahazar, has denied that there were proceedings at the fifth accused's residence stating that he signed the Mahazar [Ex. P 137] and the other proceedings in the evening of 28.02.2017 in the police station.
18. Evidence of the photographer. A photographer, who admittedly has worked with the jurisdictional police regularly, is examined as PW 27. This witness has deposed inter alia that when he was called by the Investigating Officer, he has visited the police station with his video camera and used the audio recording option on his camera to record the accused's voice specimen and has transferred such recording onto a Personal Computer [PC[ at an Internet Browsing Centre and then burnt the samples on 18 Compact Discs [CDs[ purchased by him from the market. This witness has admitted that the PC did not belong to him and that he is not aware of the other contents on such PC. The witness has also stated that he was not
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 called upon to produce any certificate as regards the copying of such specimens and that he has not given any such certificate.
19. The evidence of Doctor who has examined the prosecutrix: Dr. Adinath Annappa Kudachi, Medical Officer, Belagavi Institute of Medical Sciences, is examined as PW 28. The Doctor's evidence is that one of the police personnel accompanied the prosecutrix on 22.02.2017 with a request for medical examination with history of sexual assault on 15.02.2017. The prosecutrix had laceration wound all over body. She was referred to a dentist and radiologist who have opined that she is aged between 18 and 20 years. The initial opinion is marked as Ex. P-100, and his signature as Ex. P-100a, and the Doctor has stated in his opinion that the final conclusion will be furnished upon the report from the forensic science laboratory.
19.1 As regards the material objects sent for forensic examination, the Doctor has referred to hair and nail specimen, vaginal swab and smear, and the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 prosecutrix's wear being sent for forensic examination identifying the same. The Doctor, referring to the Forensic Science Laboratory Report dated 09.05.2017 [Ex. 101], has furnished his final opinion dated 15.05.2017 [Ex. P 102]. The Doctor has opined that the findings are suggestive that the prosecutrix is used to sexual intercourse. The Doctor has also referred to the injuries on the prosecutrix's lower limbs and chest, and the Wound Certificate is marked as Ex.
104. The Doctor has stated that the injuries could be caused by hard and blunt objects such as the stick [MO-9].
19.2 In the cross-examination, the Doctor has stated that his opinion about the prosecutrix being used to sexual intercourse is not because he has personally examined the prosecutrix but because of the opinion of a Lady Doctor. This Court must observe that Ex. P -100 mentions that a nurse by name Ms. Sharada was present at the time the prosecutrix was examined and the Doctor himself has signed this Certificate. There is no reference in this Certificate to a Lady Doctor examining the prosecutrix. Similarly, the Final Opinion [Ex. P-102] does not refer to the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 opinion of a Lady Doctor. The Wound Certificate [Ex.-P104] does not refer to the prosecutrix being examined by a Lady Doctor.
20. The evidence on Test Identification Parade/Photo Identification: The Tahsildar, Ramdurga is examined as PW 30, and he has referred to the Communication dated 07.03.2017 sent by the jurisdictional police to hold Test Identification Parade. The Tahsildar's evidence on the Test Identification Parade is as follows. The two notices [Ex. P148 and 149]14 are addressed to the prosecutrix and co-victim with the copies thereof being sent to the Superintendent of Police. The Test Identification parade for the co-victim was organized in a classroom at Indalaga prison, and Photo Identification was organized for the prosecutrix.
20.1 The accused were mixed with about 10 others, and the Test Identification Parade for the co - victim was conducted in two rounds. The co-victim identified the 14 The officer has also referred to communication as regards the Test Identification Parade for the juvenile offender
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 first and second accused, and he later identified the third and the fourth accused but he identified the fifth accused only in the first round. The Mahazar in these regards are marked as Ex.s 151-156. A Photo Identification exercise [parade] was organised for the prosecutrix because she was a minor. The mug shots of the accused were mixed up with mug shots of the third persons, and she has identified the first to fifth accused. The proceedings drawn at the time of this exercise are marked as Ex.s P 42- 50. The report filed by the officer in these regards with the jurisdictional police is marked as Ex. P .157.
20.2 The prosecutrix has been cross-examined on the photo identification exercise conducted by the Tahsildar, and in fact, the mugshots [of the accused] shown to the prosecutrix during this exercise are marked as Ex.s P 40-50. It is suggested to the prosecutrix that she has identified the accused not because she could recognise them from these mugshots but because of the names of the accused being written on the flipside of these mugshots. The prosecutrix has denied the suggestions asserting that she
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 has identified the accused from the mugshots. However, in the later part of the cross-examination, as regards the period during which she came to know about the names of each of the accused, the prosecutrix has stated that she came to know about the names while signing the documents after the identification exercise while also stating that she came to know about their names when the photographs were telecast. The co-victim has spoken to about the Test Identification Parade conducted and he affixing his signatures to the proceedings.
21. The evidence on voice specimen: The Investigating Officer [PW 32] and the photographer/ mahazar witness [PW 15] have spoken about the recovery of the mobile [MO 16] on 21.02.2017 and transferring video/audio clip of 3.21 minutes onto a laptop and Mahazar [Ex. P 64] being drawn during this time. These witnesses have also spoken about transcribing the audio in the video clip in the voices of the first to fourth accused on 21.02.2017. The mahazars in these regards are marked as Ex.s P 64 and 80. Further, these witnesses have spoken
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 about the transcription of the audio in the voice of the fifth accused is recorded on 28.02.2017 after this accused was arrested. The mahazar in this regard is marked as Ex P -
136. The Investigating Officer has stated that the voice samples copied/ burnt on CDs by the photographer are referred to forensic examination by M/s Truth Labs.
21.1 The Deputy Director of M/s Truth labs, Sri S Neeru [PW 33], after detailing how the video clip and the voice samples are analysed, has spoken about the Report, which is marked as Ex.-183. The Report in its material part reads as under:
1. The mobile phone marked 'Q1' contained the video file named "VID20170215-204833' in .mp4 format in the directory "Phone:\\DCIM Camera\".
2. The video file named 'Ql-a' retrieved from the mobile phone marked 'Q1' did not contain any spatial distortion indicating that the video had not been morphed, however it contained a pause signature which indicates that the recording had been paused and then resumed
3. The technical specification of the recording 'Q1-
a' strongly indicates a high probability that the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 recording could have been recorded using the mobile phone marked 'Q1'.
4. The recording 'Ql-a' had been recorded on 2017-02-15 15:30:36 in UTC-Universal Time Coordinates which would be 2017 February 15, 21:00:36 in IST-Indian Standard Time.
5. The duration of the recording 'Q1-a' was 3 Minutes 21 Seconds 109 Milliseconds.
6. The recording 'Q1-a' is provided in the CD-R marked 'TLB/AV/15/2017 Video Recording 'Q1- a"
7. The mobile phone marked 'Q1' also contained images relevant to the case. These images could have been taken from the video marked 'QI-a' as snapshots or frames.
8. The voice characteristics of four male speakers in the recording 'Ql-a' matched with the voices of the speakers in the recordings 'Sl' to 'S3', 'Tl' to 'T3', 'Ul' to 'U3' and 'Vl' to 'V3'. The voices in the recordings 'X1' to 'X3'and 'Y1' to 'Y3' did not match with any of the voices in the recording 'Ql- a'. The recordings 'Z1' to 'Z3' did not contain sufficient speech samples and hence forensic speaker identification was not carried out for these recordings15.
15 The evidence indicates that the samples marked as S1- S3 are that of the first accused, the samples marked as T1-T3 are that of the second accused, the samples marked as U1-U3 are that of the third accused, the samples marked as V1-V3 are that of the fourth
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 21.2 The video is played during the evidence of the prosecutrix and the victim who have identified the same. The Special Court, which has watched the video, has observed that mostly the images in the video are of the prosecutrix and victim. The Report essentially states that the video clip is as recorded and the voice samples of the first to fourth accused compare with the voice heard in the video clip but the voice sample of the fifth accused did not match with any of the voices in the same. The report also states that the speech of the victim in the video is not sufficient to identify.
22. The prosecution has relied upon the evidence as aforesaid and the evidence of the other official witnesses to establish its case against the accused and the accused rely upon certain circumstances to contend that their culpability is not established as required in law. The Special Court has considered the prosecution's case as well accused and the samples marked as X1 - X3 are that of the fifth accused. The victim's voice's sample is marked as Z1-Z3.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 as the circumstances that could be relied upon by the accused to decide on the culpability.
23. The Special Court's examination of the these aspects, for reasons of convenience, are referred to under certain Sub-headings while further discussing the evidence on these aspects and examining the Special Court's opinion for this Court's reconsideration of the evidence in view of the Apex Court's reiteration in Jogi v. State of Madhya Pradesh16 that it is necessary for the appellate Courts to consider whether the trial Court's assessment of the evidence and its opinion that the accused must be convicted deserves to be confirmed. The Apex Court, in reiteration of the exposition in Majjal v. State of Haryana17, has stated thus:
.............. The High Court's cryptic reasoning is contained in two short paragraphs. We find such disposal of a criminal appeal by the High Court particularly in a case involving charge under Section 16 Criminal Appeal No. 1350 of 2021 [Arising out of SLP [Crl] No 2245 of 2020] disposed of on 08.11.2021.
17 [2013] 6 SCC 798
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 302 IPC where the accused is sentenced to life imprisonment unsatisfactory.
It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. The prosecution's evidence on the age of the prosecutrix.
24. The accused are convicted for offences punishable under Section 376D of IPC and the provisions of POCSO Act. They prosecution's case is that the prosecutrix, who is born on 19.03.1999, was aged below 18 years as of the date of occurrence [15.02.2017]. If the prosecutrix's date of birth is taken as 19.03.1999, she would be aged 17 years 11 months and a few days more. The accused have disputed that the prosecutrix is born on 19.03.1999 because
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 after the incident she has filed a petition under the provisions of the Registration of the Births and Deaths Act, 1969 in Criminal Misc. No. 385/2017 for correction in her Birth Certificate. The jurisdictional court has allowed this petition on 06.06.2017, and thereafter, the concerned has issued a fresh Birth Certificate.
24.1 The prosecution to establish that the prosecutrix is born on 19.03.1999 has produced her Tenth Standard Marksheet issued by the Karnataka Secondary Examination Education Board [Ex. P 55], Birth Certificate issued by the concerned with local authority dated 03.05.1999 [Ex. P. 54], Passport [Ex. P. 57], Ration Card [Ex. P. 58], Aadhaar Card [Ex. P. 56] and Transfer Certificate issued by the school where she studied Tenth Standard [Ex. P - 59]. These documents, as observed by the Special Court, are consistent in indicating that the prosecutrix is born 19.03.1999.
24.2 However, in the Criminal Miscellaneous No. 385/2017 the prosecutrix has contended that when her
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 father applied for birth certificate with the concerned, he is issued with a certificate without showing her name and therefore she has applied for correction in the Birth Certificate. The prosecutrix has further explained that the hospital where she was born [Ashok hospital, Subhash Nagar, Belgavi] informed the authorities about her birth and the details were entered without her name and after she was named in a customary ceremony the concerned was also informed about the same and Birth Certificate dated 03.05.1999 is issued but after the incident she is issued with a Birth Certificate without her name.
24.3 The Special Court, while considering the case of the accused that there is doubt about the prosecutrix's age because of the afore proceedings and that the prosecutrix was a few days short of completing 18 years, has opined that the jurisdictional Court's Order dated 06.06.2017 in Criminal Miscellaneous No. 385/2017 is not conclusive because of the observation that any entry after its orders for correction will not be conclusive proof if there exists any dispute and the entries will be subject to further
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 proof and that the documents otherwise produced by the prosecution clearly show that the prosecutrix was aged below 18 years and the accused's case that she was not a minor cannot be accepted.
24.4 The prosecutrix's Tenth Standard Marksheet issued by the competent board and her Passport, Ration Card and Aadhaar Card are consistent insofar as her date of birth. These documents show that she is born on 19.03.1999. The probative value of these documents, most specifically the Tenth Standard Mark sheet must be considered in the light of the Apex Court's decision on the documents that must be produced to prove the age of a victim in cases of sexual offences against children and the primacy that is to be attached inter se these documents.
24.5 The Apex Court in Mahadeo v. State of Maharashtra18 has held as follows:
In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by 18 [2013] 14 SCC 637.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 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.
The Apex Court in the later decision in State of M.P. v. Anoop Singh19 referring to the above has held that the afore is in view of Rule 12[3] of the Juvenile Justice [Care and Protection of Children] Rules, 2007 and is applicable in determining the age of the victim of rape. 19 [2015] 7 SCC 773
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 24.6 In the light of the significance that is attached to the Tenth Standard Marksheet in deciding on the age of the victim and the corroboration thereof in the present case by the other documents such as Passport, Ration Card and Aaadhar card, this Court cannot disbelieve that the prosecution's case that the prosecutrix is born on 19.03.1999 only because she has chosen to initiate proceedings under the provisions of Registration of Births and Deaths Act, 1969 as the concerned, when approached for a copy of the birth certificate after the incident, has issued a certificate with all other details except her name. Therefore, this Court must confirm the Special Court's finding that the prosecution has proved that the prosecutrix was aged below 18 years as of 15.02.2017 [the alleged date of occurrence] and the defence of the accused cannot be accepted.
The presumption under Section 29 of the POCSO Act
25. The accused are convicted for the offences punishable not only under the provisions of Section 376D of IPC but also under the provisions of the POCSO Act and the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 prosecutrix is shown to be a minor, and as such, the prosecution will be entitled to call upon this Court to draw certain presumption in view of the provisions of Section 29 of the latter Act but if certain foundational facts are established. The Special Court also has also considered the question of extending the benefit of such presumption.
25.1 This Court must refer to the decision of the Apex Court in Pappu v. State of U.P20 on presumption under Section 2921 of the POCSO Act.. The Apex Court in this decision, after discussing the factual matrix, has underscored the significance of the presumption that would be available under Section 29 of POCSO Act if the foundational facts are established, the Apex Court's observations in this regard read as under:
From what has been discussed hereinabove, it is also but clear that the foundational facts of the offences 20 [2022] 10 SCC 321 [Paragraph 108] .
21Section 29. Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 alleged against the accused have been established. In the given set of circumstances, it could safely be said that the presumption contemplated by Section 29 POCSO Act came into operation and the burden came staying with the accused; and it was for him to rebut the presumption and to prove that he had not committed the offence. The accused has failed to discharge this burden.
25.2 The prosecution's case against the accused, insofar as the offences punishable under the POCSO Act, rests on certain foundational facts such as that [a] the accused compelled the prosecutrix and co-victim to disrobe themselves in their presence, [b] the co-victim is forced to get into a compromising position with the prosecutrix by the accused with them recording the happening, and [c] the first to fourth accused committed gang rape on the prosecutrix and the fifth accused, abetting them, held back co-victim with the assistance of the juvenile offender.
25.3 The prosecutrix is categorical in the complaint dated 20.02.2017 [Ex. P1] that when she and the co-victim were at Muttyanatti on 15.02.2017 at around 5:30 PM, about 6-7 persons aged about 20 years came from the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 hillside and started assaulting the co-victim and abusing them for being at that place snatching their mobiles and ₹300/- that was on their person. The prosecutrix is also categorical in her complaint that these 6-7 persons forced them to become nude. The prosecutrix in her statement on 21.02.2017, as recorded by Smt. Shreedevi Patil [PW 31] under Section 24 of POCSO Act, has stated the same but explaining that one amongst the aforesaid 6 to 7 persons assaulted the co-victim detailing how the mobiles and the amount was snatched driving them to a secluded place and compelling them to remove their clothes. The prosecutrix has stated that because she and the co-victim were hesitating, these persons assaulted and forcibly tore her clothes, including her undergarments. This Court finds that the prosecutrix's statement as regards the above consistent both in the complaint and the statement [Ex. P1 and P2].
25.4 The prosecutrix's statement is also recorded by a learned Magistrate22 on 22.02.2017 under the provisions of Section 25 of the POCSO Act, and even in this 22 The second Additional Civil Judge and JMFC, Belagavi
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 statement she is consistent. The prosecutrix has once again stated that she and the co-victim, under threats and because they were being assaulted, removed their outer wear and these persons forcibly removed her inner wear with some of them even starting to undress themselves. Further, the prosecutrix is categorical, even in this statement, that these persons compelled the co-victim to get into a compromising position with her while they were recording.
25.5 The prosecutrix is examined as PW1 on 18.09.2017. This Court, on going through her evidence, must opine that she is consistent as regards the above aspects and she has detailed the horrid experience specifically stating that these persons forcibly pulled out her inner wear and compelled the co-victim to attempt sexual intercourse with her threatening both that if he did not do so they would commit such acts on her. As regards these persons themselves committing penetrative sexual assault on her, the prosecutrix, again consistent with the complainant and the statements [Exhibit P1 and P2], has
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 stated that the accused took umbrage because the co-victim could not and the first to fourth accused took her further aside with the other accused [the fifth accused and juvenile offender] holding the co-victim back and that with these others encouraging, the first to fourth accused committed aggravated penetrative sexual assault on her.
25.6 This Court finds the prosecutrix's testimony on the foundational facts as aforesaid consistent and believable. However, Sri Ashok R. Kalyanshetty argues that this Court must not accept the prosecutrix's testimony as aforesaid because the first information is lodged five days after the alleged incident, the identification of the accused is not established beyond all doubts, the prosecutrix's evidence on penetrative sexual assault is not corroborated by medical evidence, and the charges are contrary to the recoveries or the forensic evidence, including the forensic report of the voice samplings. The learned counsel argues that the evidence is replete with inconsistencies and contradictions.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 25.7 This Court must, before the accused's contentions in these regards are examined in the light of the Special Court's discussion about the same, examine whether the accused in the cases of sexual assault could be convicted on the sole testimony of the prosecutrix or should the courts always look for corroboration. This question has been considered by the Apex court in Phool Singh v. State of M.P.23, and the Apex Court, in the light of its earlier decisions, has reiterated the following:
[i] A victim's/prosecutrix's testimony would be vital unless there are compelling reasons which necessitate corroboration and that the courts could act on the victim's/prosecutrix's testimony when it is found to inspire confidence.
[ii] Looking for corroboration when the Prosecutrix's testimony inspires confidence would amount to adding insult to injury, but the courts can look to other evidence to assure judicial conscience because the victim/ prosecutrix, as a person who has levelled charges, could be interested in the outcome of the proceedings.
23 [2022] 2 SCC 74
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 25.8 The Apex court's reiteration as aforesaid is in the light of its earlier decision in State of Punjab v. Gurmit Singh24, wherein it is held as follows:
"Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances."
25.9 This Court has already opined that the prosecutrix is consistent that she was compelled to remove her dress, that her undergarments were forcibly removed, that co-victim was forced to get into a compromising position with her and that she was sexually assaulted [the foundational facts] in her complaint, in her statement to Smt. Shreedevi Patil [PW 31] under Section 24 of the POCSO Act, in her statement to the learned Magistrate under Section 25 of the POCSO Act and in her testimony. This consistent evidence strongly establishes the material ingredients for the offences of aggravated penetrative sexual 24 [1996] 2 SCC 384
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 assault and abetment punishable under the POCSO Act and under Section 376D of IPC.
25.10 However, to examine whether the accused's conviction for such offence can be sustained just based on the prosecutrix's testimony with the advantage of the presumption under Section 29 of the POCSO Act must be considered in the light of the other evidence because the prosecutrix was just one month short of completing 18 years. If the prosecutrix had completed 18 years, the presumption will not be available. Further, the reconsideration of the other evidence will also enable examination of the accused's assertion that the prosecution's case is shown to be false by the delay in initiation of the proceedings, failure to establish identity and the lack of corroboration of material allegations by medical or forensic evidence, and the inconsistencies and contradictions in the evidence.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The accused's case on delay in filing the first information
26. The prosecution alleges that the incident occurred on 15.02.2017 and the prosecutrix has filed the first information with the jurisdictional Police on 20.02.2017 because of the threat of the offending video being uploaded. The prosecution's case is that the accused, on 15.02.2017, restrained the prosecutrix and co-victim and committed different acts as discussed above and that they demanded a ransom of Rs.20,000/- threatening to upload the offending video. The Special Court has considered the evidence let in by the prosecution on these aspects examining the defense that the delay in filing the complaint shows that the prosecutrix, in consultation with her family members and police, has built a false narrative to implicate them.
26.1 The Special Court has opined that both prosecutrix and co-victim are consistent in their evidence that some of the accused, acting in cohorts, recorded the forced physical intimacy between them and threatened them of uploading this video if a sum of Rs.20,000/- is not paid in
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 ransom. The Special Court has opined that in the circumstances established, the delay is satisfactorily explained. On the question of law, the Special Court, while referring to the decision of the Apex Court in State of Punjab vs. Gurmit Singh and others supra, has observed that delay in lodging information with the Police when a minor is sexually assaulted cannot in itself be fatal because the family will have to decide on initiating criminal proceedings taking into consideration different circumstances, such as, the family's honour.
26.2 The prosecutrix, as on the date of the incident, was a first-year medicine student, and she has known co-victim from their school days. He was studying for diploma in engineering. According to them, they were subjected to the bizarre [and demeaning] experience of having to disrobe themselves and be in a compromising position with the same being captured on one of their mobiles with the threat of such offending video being uploaded. This Court must consider whether it would be natural for both to be hesitant and reluctant in either
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 informing the family members or the authorities immediately.
26.3 The prosecutrix states in her evidence that she did not contact her parents after she returned to the hostel spending the night intervening between 15.02.2017 and 16.02.2017 at the entrance of emergency ward in KLE Hospital, Belagavi and that her mother called her on the hostel's landline to verify why she did call; her mother called her later to inform that somebody had called her on her mobile and her cousins' mobile to inform that her phone was traced. The prosecutrix also states that the accused, after a day, started calling her female acquaintances informing them that her mobile was traced. The prosecutrix's parents [PW 3 and 4] are also consistent in this regard. Their evidence is believable especially with the recovery of the respective mobiles from some of the accused being established.
26.4 The merits of this evidence are examined in the light of the circumstances relied upon on behalf of the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 accused. Sri. Ashok R. Kalyanshetty argues that the mother and the brother of the prosecutrix's friend have stated in their evidence that the jurisdictional Police called the prosecutrix's friend on 19.02.2017 itself asking him to come to the Police Station but the complaint is not filed on 19.02.2017 and is allegedly filed on the next date [20.02.2017]. This, the learned counsel argues, indicates that the jurisdictional Police and the prosecutrix's family members have discussed the contents of the complaint among themselves and filed the complaint to possibly protect the prosecutrix's honour as the physical intimacy between her and co-victim was recorded by a set of villagers.
26.5 Sri. Ashok R Kalyanashetty further submits that this Court must consider that the co-victim has stated in his evidence that [a] he informed two of his friends, [b] he visited Muttyanatti - the place of occurrence - the next day to retrieve his bike and he could retrieve the bike with assistance, [c] he has collected the SIM cards from the accused on the next date, and [d] he contacted the accused with his friends who were studying in the same institution
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 with him. The learned counsel canvasses that this Court will have to consider these circumstances and the admitted fact that the prosecutrix and co-victim had to cross the Police Station before they reached the place from where they hitchhiked in the vehicle of Sri.Sandesh Patil [PW6] to decide whether the undeniable delay is fatal and that the prosecution has proved the occurrence as alleged.
26.6 The prosecutrix and co-victim are consistent in their evidence that they did not tell Sri Sandesh Patil [PW 6] who dropped them at KLE Hospital, Belagavi about the sexual assault. They are also consistent in that the prosecutrix spent the night outside the emergency ward at the hospital [because that would be a safe place, and she could not return to the hostel in the same evening] and that co-victim stayed outside the emergency ward and they did not speak to each other until 19.02.2017 when the prosecutrix's father visited her at her hostel and insisted on talking to the co-victim.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 26.7 If this evidence is consistent, it is reasonable to conclude that the prosecutrix and co-victim, shocked as they should be by the experience, did not speak to each other. If the prosecutrix has chosen to remain silent with co-victim trying to retrieve the situation himself, no adverse inference can be drawn only from these circumstances to the accused's advantage. The co-victim, without material inconsistencies, has stated that he informed a couple of his friends from his college [without disclosing the details] that his mobile was snatched at Muttyanatti and that they should accompany him to retrieve the mobile; he called on the prosecutrix's mobile number and the first accused asked him to meet near a Dhabha closer to the place of occurrence; he, accompanied by these friends, went there but he alone went inside and spoke to the first accused who only relented to return his SIM. This evidence is brought out in the cross-examination. The discrepancy in the evidence by the co-victim and his cousin [PW - 7] about going to a garage to get duplicate key for the bike, that before going home to spare key does not
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 undermine the otherwise credible evidence. This Court is of the definite opinion that this evidence does not in any manner render the prosecutrix's evidence on what transpired between 15.02.2017 and 20.02.2017 unreliable.
26.8 The prosecutrix has mentioned in her complaint [Ex.P.1] in short the details of what transpired between the evening of 15.02.2017 and 20.02.2017, but in her statement [Ex P2] to the Woman PSI [Smt. Shridevi Patil
- PW31] she has explained that she tried to live a normal life between 16.02.2017 and 18.02.2017 despite her experience on 15.02.2017 fending of the queries by the mother and refusing to relate her horrifying experience to anyone until her mother saw the physical injuries on her person on the morning of 20.02.2017 when she stepped out after a bath.
26.9 Sri. Ashok R. Kalyanshetty argues that the prosecutrix's evidence in this regard must be disbelieved because the co-victim's and his family members have stated in their evidence that the Police called the co-victim to the Police Station on 19.02.2017. The learned counsel contends
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 the prosecutrix's case that neither her parents nor the police was informed about the occurrence until 20.02.2017 is rendered completely untrustworthy by this evidence.
26.10 In this regard, this Court must also consider, as rightly canvassed by Sri. M. B. Gundawade, that the co-victim is examined on 20.09.2017 but is cross- examined two and half years later with the co-victim's mother [PW- 9] and his brother [PW - 10] being examined thereafter. Sri. M.B. Gundawade rightly argues that given the lapse of two and half years from the date on which the co-victim is examined in chief, he could be confused on the date and that his family members, who are examined next, could have been influenced by the statement in the cross- examination of the co-victim.
26.11 It is settled that delay in every case cannot be held against the prosecution or the victim and especially in cases where there is sexual assault, and more specifically, when the offence is as against a minor. This Court can make an immediate reference to the decision of the Apex Court in
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Mukesh v. State of Chattisgarh25. The Apex Court in this decision, while extracting certain paragraphs from State of Rajasthan v. N.K.26 , has reiterated the law declared in State of Rajasthan v. Narayan27 and in State of Punjab vs. Gurmit Singh and others supra. The propositions as reiterated by the Apex Court in the case of Mukesh v. State of Chattisgarh supra are follows:
We may however state that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the court it cannot be counted against the prosecution. In State of Rajasthan v. Narayan [1992] 3 SCC 615:1992 SCC [Cri] 781] this Court observed: [SCC p. 623, para 6] 'True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her 25 [2014] 10 SCC 327 26 [2000] 5 SCC 30 27 [1992] 3 SCC 615
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 relatives have to struggle with several situations before deciding to approach the police....' In State of Punjab v. Gurmit Singh [[1996] 2 SCC 384:1996 SCC [Cri] 316] this Court has held:
'8. ... The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.' 26.12 This Court, in the view of this law and the afore discussion of the evidence by the prosecutrix, is of the considered view that the delay is natural and explanation is consistent and the Special Court's conclusions on the question of delay in the prosecutrix lodging first information with the jurisdictional police are unexceptional and does not in any manner undermine the prosecutrix's evidence or the prosecution's case otherwise.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The accused's Case on Medical Evidence
27. The prosecution, to establish that the prosecutrix was sexually assaulted by the first to fourth accused with the fifth accused and the juvenile offender holding the co- victim back, has relied upon the prosecutrix's evidence, the evidence of the co-victim and the medical evidence. The prosecution, insofar as the medical evidence, has examined Dr. Adinath Annappa Kudachi [PW- 28] and produced Medical Report/s and Wound Certificates [Ex. P 100, 102 and 104]. This Court need not once again refer to the prosecutrix's testimony [which is corroborated by the co-victim's testimony] about how the accused first forced them to remove their external wear, tore the prosecutrix's inner wear, compelled the co-victim to be in a compromising position with the prosecutrix and then ultimately, separated her, took her further away and the first to the fourth accused committed the offence of aggravated penetrative sexual offence.
27.1 Sri Ashok R. Kalyanashetty, however, contends that because the first information about the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 incident is filed after five days from the alleged date of occurrence, this Court must examine whether the prosecutrix's evidence is corroborated by medical evidence and that if the evidence is not corroborated, this Court must disbelieve the prosecutrix's case of being subjected to the offence of aggravated penetrative sexual assault. The learned counsel emphasizes that the doctor's opinion is that the prosecutrix had not suffered any injuries that would be consistent with the prosecution's case and in fact the injury suffered by her would be consistent with the accused's defence that the prosecutrix and the co-victim were found in a compromising position by the villagers with some of them recording. In fact, the learned counsel has requested this Court to re-list this appeal to emphasize the same.
27.2 The Special Court, while examining the prosecution's case that the prosecutrix is sexually assaulted by the first to fourth accused, apart from considering prosecutrix's testimony and the co-victim's testimony in support thereof, has also played the video recording in the chambers from the mobile [Material Object-16] which was
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 charged using the charger of one of the court's staff The Special Court has opined that the prosecutrix is seen lying naked on the floor with the co- victim on her also nude with certain persons compelling /abusing him to force himself on the prosecutrix using vulgar language, but the embarrassment/difficulties for both are obvious. The Special Court has also relied upon the evidence of the Investigating Officer [PW 32] in this regard. The Special Court, thus relying upon the prosecutrix's testimony and the circumstances, has opined that the prosecution has established that the prosecutrix is sexually assaulted.
27.3 Dr. Adinath Annappa Kudachi [PW - 28] has furnished Medical Report/s and Wound Certificates [Ex. P 100, 102 and 104]. The Doctor has stated in his evidence that, when the prosecutrix was examined on 21.02.2017, it was seen that she had suffered multiple abrasions on her lower and upper limbs, her backside, her spine area, and inner thighs and there was contusion on her chest [her breast/ areola]. The Doctor, in the Wound Certificate and in his evidence, has stated that the injury suffered by the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 prosecutrix could be caused by a hard and blunt object, and he has also identified a stick [Material Object-10] as that hard and blunt object which could cause these injuries.
27.4 The Medical Reports/Wound Certificate are silent about the prosecutrix suffering any injury that could be absolutely conclusive of penetrative sexual assault, but in the present case, in view of the fact that the proceedings are initiated after five days of the occurrence [with the prosecution satisfactorily establishing the delay] neither this by itself nor the absence of semen either on the prosecutrix or on her dress is of any significance. This Court, on the other hand, must opine that the injuries are consistent with the prosecution's case that the prosecutrix was forced to lie naked on the ground with the victim being compelled to be on her and that the first to fourth accused stoked her chest forcibly and then committed aggravated penetrative sexual assault on her. The injuries found on the prosecutrix are not consistent with the inchoate defence that she and the co-victim were found in a compromising position by the villagers. If the prosecutrix and the co-victim were engaged
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 in consensual intimacy, the injuries on the chest, backside and inner thighs could not have been caused, and these injuries corroborate the prosecution's case as aforesaid.
27.5 This Court, before considering the next circumstances relied upon by Sri Ashok R Kalyanashetty to persuade this Court to hold in favour of the accused, must observe that Dr. Adinath Annappa Kudachi [PW - 28, and aged about 68 years as of the date of his evidence] has opined in the Medical Report [Ex. P102] that the prosecutrix is habituated to acts of sexual intercourse, and examine whether such opinion, which is re-iterated in his evidence, was either warranted or permissible in law. The Doctor has stated in his evidence that he is speaking about the injuries on the prosecutrix based on the opinion of a lady doctor, but neither the Medical Reports nor the Wound Certificate refer to the prosecutrix being examined by any lady doctor. The Medical Report [Ex. P 100] indicates that the prosecutrix was examined by this Doctor [he has signed the report and none else] recording that a staff nurse by name 'Sharada' was present at the time of examination. This Court must
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 wonder petulantly whether the Doctor has been nonchalant in recording this opinion and re-iterating the same in his evidence.
27.6 The Apex Court in this regard in State of Jharkhand v. Shailendra Kumar Rai28 has observed as follows:
65. Whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375IPC are present in a particular case. The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth -- a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman's testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active."
28 [2022] 14 SCC 299
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The accused's case based on the forensic examination of the voice sample
28. Sri Ashok R. Kalyanashetty submits that this Court must extend the benefit of the forensic report based on the analysis of the voice specimen and the audio clip recorded at the time of occurrence. The learned counsel contends that the prosecution's case is that the accused and the juvenile offender [six persons] were at the place of occurrence, but the report is categorical that [i] the voice characteristics of only four male speakers matched with the voice specimens recorded during the investigation, and [ii] the voice specimen of the fifth accused does not match with any of the voice characteristics. The merits of this canvass must necessarily be examined considering the manner in which the accused's voice specimen is recorded and copied and sent to the forensic examination and the law as enunciated by the Apex Court on the requirement of compliance with Section 65 B[4]of the Indian Evidence Act, 1872 [for short, the 'Evidence Act'] while observing that the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 relevant provisions in the new enactment [Section 63 in Bharatiya Sakshya Adhiniyam, 2024] are in similar lines.
28.1 The prosecution has examined PW 27, a photographer by profession, to bring on record how the accused's voice specimen is recorded and copied for forensic examination. This witness has stated essentially that he recorded the accused reading the exhortions in the video clip using the audio option on his camera and that he visited a Browsing Center and used a personal computer in such centre to transfer the audio file and burn the same onto the CDs that he had purchased from market. He has also stated that he did not have the control over the personal computer and he did not know about the contents on such computer. Further, the witness has specifically stated that neither the Investigating Officer asked to give a certificate nor he has given a certificate to demonstrate the genuineness of the specimen. The CDs and the forensic examination report are introduced in evidence but without any certificate as to the genuineness of the contents of the CDs.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 28.2 This Court must observe that the police during the course of their investigation undoubtedly have the power to seize electronic material found beneficial for the investigation and draw necessary specimen wherever it is possible, but when it comes to electronic evidence, the process of seizure followed by the police ought to be nuanced and the police must ensure that the seizure of electronic evidence and its subsequent use as evidence later on in the trial is not rendered inadmissible because of failure to meet mandatory compliances.
28.3 The Electronic evidence, like any other evidence, is of two kinds: [a] Primary Evidence and [b] Secondary Evidence. The Primary evidence vis-a-vis an electronic record would be when the electronic record which contains the evidence in question itself is produced as an exhibit. If a video clip or an audio clip recorded on a mobile device is being introduced as evidence, the mobile device on which the video is shot would be primary evidence qua the video. The Secondary evidence vis-a-vis an electronic would be when the electronic record which contains the evidence in
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 question is created by making a copy of the primary evidence qua the evidence in question.
28.4 If a video clip or an audio recorded on a mobile device is copied on to a CD [DVD] or a pen drive and the CD/ DVD or pen drive is being introduced as evidence, the CD/DVD or pen drive would be secondary evidence qua the video. This distinction between primary evidence and secondary evidence vis a vis an electronic record becomes crucial as the rigours to introduce such evidence would differ. In the event a primary evidence of an electronic record is produced, then there would be no requirement to comply with the provisions of Section 65-B[4] of the Indian Evidence Act [Section 63 in Bharatiya Sakshya Adhiniyam, 2024] as the certificate required under the said Section would be superfluous to the requirement.
28.5 However, if secondary evidence of an electronic evidence is produced, then the producing party would necessarily have to comply with the requirements of Section 65-B[4] of the Indian Evidence Act. After the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 decision of the Apex Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal29, the law is well settled inasmuch the requirement of a certificate under Section 65- B[4] of the Indian Evidence Act would be mandatory in the event secondary evidence of an electronic record is being produced. It is imperative that mandatory requirements of Section 65-B[4] are satisfied if the secondary evidence of an electronic record is to be relied upon.
28.6 It would also be advisable that when the primary evidence of an electronic record is obtained during the investigation, the investigating officer must make copies of the primary evidence so obtained to ensure that even if the primary evidence so obtained is destroyed due to the vicissitudes of time, the copy of the primary evidence exists. A situation could arise where the primary evidence stops working30, becomes inaccessible, or is even destroyed. In such cases, the benefit of the primary evidence must not be 29 [2020] 7 SCC 1 30 In the present case, the learned counsels, when pointed out that MO 16 may have to be secured from the Special Court as it is not presently not part of this Court's record, submit that it cannot be necessary
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 lost due to such vicissitudes and a copy of the same must be created by the investigating authority. When such copies are created, the investigating authority must ensure due compliance with the provisions of Section 65-B[4] of the Indian Evidence Act/section 63 in Bharatiya Sakshya Adhiniyam, 2024 and such copies must also be made part of the charge sheet along with the primary evidence of the electronic record.
28.7 This Court must observe that in the absence of a certificate as required under the provisions of Section 65-B[4] of the Evidence Act, the efficacy of this entire exercise of drawing specimen and securing forensic analysis report of the specimen is a futile exercise and neither has any the probative value. The Special Court, though has not examined the requirement of a Certificate under the aforesaid provisions, has refused to rely upon the same because, at the best, the Expert's opinion can only be a corroborative evidence and that the presence of the accused is established otherwise.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The accused's case based on Photo Identification and Test Identification Parade and [TIP]
29. The prosecution's case is that the accused's culpability for the offences alleged is proved because their presence at the place of occurrence is spoken to by the prosecutrix who has identified them not only in the court during evidence but also in the photo identification exercise. The prosecution also relies upon the co-victim's evidence and the Test Identification Parade proceedings. The Special Court, while referring to the exposition of the Apex Court that the identification in a Test Identification Parade would only be corroborative evidence and substantial evidence will be the identification in the court, has opined that the prosecutrix and the co-victim have identified the accused in the court during evidence and therefore, the prosecution has succeeded in its case in this regard.
29.1 Sri Ashok R. Kalyanashetty canvasses that the prosecutrix's identification of the accused neither in the court nor in the photo identification is credible and in that event, and in view of the evidence of the co-victim, this
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Court must opine that the prosecution has failed to establish the accused's presence at the time of the alleged incident. In this regard, the learned counsel relies upon the following:
• The prosecutrix, who has mentioned the names of three accused in the complaint and the names of four accused in the statement to the Woman Police Inspector [Smt. Shreedevi Patil - PW 31], has admitted in the cross-examination that she had seen the photographs of the accused with their names when the same were telecast. This creates doubt, and the doubt is further accentuated with the prosecutrix identifying the fifth accused as the first accused.
• The prosecution contends that Test Identification Parade comprising of two rounds was conducted for the co-victim and that he has identified the accused in such
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 Parade, but it is irrefutable that the co-
victim has identified the fifth accused in only one of the two rounds.
• The co-victim is categorical in his cross-
examination that the fifth accused was not present at the place of occurrence and that he has nothing to do with the alleged sexual assault or the extortion or the wrongful restraint or having put him and the prosecutrix under threat for extortion.
29.2 This Court, because the prosecution relies upon both identification in Photo Identification exercise and Test Identification Parade, must refer to the decision of the Apex Court in Sidhartha Vashisht @ Manu Sharma v.
State (NCT of Delhi)31 wherein it is held as follows, and this Court must also record that the proposition as below is reiterated by the Apex Court in its recent decision in Mukesh Singh v. State (NCT of Delhi)32. 31 (2010) 6 SCC 1 32 2023 SCC OnLine SC 1061
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 "254. Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation."
29.3 The proposition of law is rather settled, and this Court must examine, upon consideration of the evidence in the light of the canvass as aforesaid, whether the prosecutrix has identified each of the accused without any room for doubt, and if there is any doubt, the same is cleared by corroboration. This Court while discussing the evidence of the prosecutrix has observed that the prosecutrix, when called upon to identify the first accused,
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 has identified the fifth accused but immediately clarified that she is mistaken only because of lapse of time.
29.4 The significance of this must be considered in the backdrop of the fact that she has not mentioned the fifth accused in the complaint or in the statement under the provisions of the POCSO Act and that the fifth accused is mentioned for the first time in the Photo Identification. The credibility of this identification is also shaken by the fact that the prosecutrix has admitted that she has seen the photographs when there was telecast of the same. This Court, in the circumstances, must next examine the evidence of the co-victim.
29.5 The co-victim, as against canvassed by Sri Ashok R. Kalyanshetty, has identified the first to fourth accused in both the rounds but the fifth accused in only one of the two rounds. In the cross-examination, he is categorical that this accused has nothing to do with the assault or the incident and that he was not present at the time of occurrence. The prosecutrix and the co-victim are
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 consistent in every detail including the identity of the accused with the exception of identifying the fifth accused. This Court therefore must opine that the identity of the first to fourth accused is clearly established by the consistent substantive evidence and the corroboration thereof but not the identity of the fifth accused.
30. Sri. Ashok R Kalyanshetty contends that the prosecutrix has stated in her complaint that 6-7 persons assaulted her and the co-victim, in the statement under section 24 of the POCSO Act she has stated six persons and in the statement under Section 25 of the POCSO Act she has again mentioned 6-7 persons. The prosecutrix has mentioned the names of just the first, second, and fourth accused in the complaint, but in the statements as aforesaid she has mentioned the names of the first to fourth accused. The prosecutrix has not mentioned the name of the fifth accused at all in the complaint or the statements. The learned counsel canvasses the following.
• The prosecutrix has stated in complaint [Ex. P 1] that after they reached the
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 residence of her relative [Sri. Shireesh Babladi- PW5] on 20.02.2017, the complaint was typed on the laptop and the printout was taken at his residence and filed with the Investigating Officer who then called Smt. Shreedevi Patil [PW -31] to record her statement under Section 24 of the POCSO Act. However, according to the statement recorded by this officer [Ex. P -2], the prosecutrix has stated that the complaint was typed at the Police Station. • The Investigating Officer [PW 32] has spoken about the recoveries from all the accused, but Sri Gangadhar Maruti Ghasari [PW 15], while supporting the prosecution's case entirely on the other recoveries and the Mahazar, has denied the similar alleged proceedings at the fifth accused's residence stating that he has signed the Mahazar [Ex.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 P 137] in the evening of 28.02.2017 at the police station.
• The fifth accused is taken into custody on 28.02.2017 and nothing that is incriminating is found from him. The identification of this accused is not established beyond doubt, and that even if the Forensic Examination Report [Ex. P- 180] is to be believed, notwithstanding the lack of requisite certification, the Expert's opinion is that the fifth accused's voice specimen does not compare with any of the voice characteristics found in the offensive video.
31. This Court must observe that none of the circumstances can inure to the advantage of the first to fourth accused against whom the prosecutrix has spoken consistently and there is due corroboration of her evidence with the co-victim testifying without any variation. As such, this Court cannot extend the benefit of either the aforesaid
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 circumstances or the evidence of the prosecutrix's relative [Sri Shirish Babladi - PW 5], who in the cross-examination, has stated that the complaint is filed to protect the honour of the prosecutrix because she was found in a compromising position with the victim.
32. This Court insofar as the fifth accused because his identity [and therefore his presence at the place of occurrence] is not established, and nothing incriminating is recovered from him as also the fact that he is arrested six days later, must opine that the prosecution has failed to bring in the guilt of the fifth appellant for any of the offences beyond reasonable doubt. The Special Court has failed to examine the evidence qua the fifth accused and to that extent this Court must interfere while reiterating the Special Court's findings as against the first to fourth accused and their consequential conviction for the offences in terms of the charges against them.
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 The accused's case on fine imposed by the Special Court.
33. Sri Jagadish Patil, who has supported Sri Ashok R. Kalyanashetty in the different submissions as aforesaid, argues that this Court must at least interfere with the Special Court imposing a fine of over ₹ 5,00,000/- against each of the accused for the offences under Section 4 and 6 of the POCSO Act taking note of the fact that the first and the fourth accused were all aged below 25 years and that they all come from a poor strata of the society and they will not have the means to pay such huge amount. The merits of this contention are examined in the light of aforesaid circumstances and the provisions of Section 4 and 6 of the POCSO Act.
34. These provisions, without capping an upper limit on the fine that could be imposed, stipulate that the fine must be just and reasonable and be paid to the victim for rehabilitation. The prosecution has been able to establish that not only the prosecutrix was forced to suffer the humiliation of having to take off her clothes, her clothes
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 being torn, her acquaintance being compelled to force himself on her but also suffer the scarring experience of the first to fourth accused taking turns in committing aggravated penetrative sexual assault. Further, the prosecution is also able to establish that the accused did not stop at that but used the recording of the scarring and humiliating experience to threaten and extort money calling the prosecutrix's relatives on their mobiles.
35. These circumstances must be considered in the light of the experts stating that an individual who is subjected to sexual assault suffers consequences which include psychiatric disorders such as post traumatic stress disorder, depression and anxiety, and apart from the mental health diagnosis, the individual also suffers from a feeling of degradation, persistent confusion, fear and lack of worth. This is also an aspect underscored by Smt. Anuradha Deshpande while arguing that no victim of sexual assault will expose herself to the circumstances that cause psychological scar unless justified. The prosecutrix is subjected to hideous conduct and no amount can be
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 adequate compensation for the scar that she will suffer. When the reasonableness of the fine is thus considered, this Court is of the considered view that no interference is called. In the light of the above, the following ORDER [a] The appeal by the first and third accused in Criminal Appeal No. 100339/2020 and the appeal by the fourth accused in Criminal Appeal No. 100255/2021 are dismissed confirming the Special Court's judgement dated 12.11.2020 and order of sentence dated 13.11.2020 in Special Case No. 156/2017. [b] The appeal by the fifth accused in Criminal Appeal No. 100013/2021 is allowed and the Special Court's respective judgement and order of sentence are set aside as against this accused. [c] The Registry is directed to communicate this to the concerned Jail Authorities to set the appellant in Criminal Appeal No. 100013/2021
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NC: 2024:KHC-D:14339-DB CRL.A No. 100013 of 2021 C/W CRL.A No. 100339 of 2020 CRL.A No. 100255 of 2021 at liberty forthwith if not required in any other case.
[d] The Registry is directed to ensure that Smt. Anuradha Deshpande, the learned amicus curiae, is paid a fee of Rs. 25,000/-.
Sd/-
(B.M.SHYAM PRASAD) JUDGE Sd/-
(C M JOSHI) JUDGE BVV Ct: VH List No.: 1 Sl No.: 20