Karnataka High Court
State Of Karnataka vs Nagesh Naik on 19 March, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.930 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.930 OF 2018 (A)
BETWEEN:
State of Karnataka
By Tirumani Police,
Represented by State Public Prosecutor,
High Court Building,
Bengaluru. ...Appellant
(By Smt. Rashmi Jadhav, Addl. SPP)
AND:
1. Nagesh Naik
Son of Dharmalanaik,
Age 27 years,
R/o. Upparahalli Thanda,
Pavagada Taluk.
2. Latha A
D/o Anandanaik,
Aged about 17 years,
Lambani/Nayaka,
Upparahalli Thanda, Pavagada Taluk,
Tumakuru District. ...Respondents
(By Sri. S.K.Venkata Reddy, Advocate for R-1;
Sri. Vinayaka V.S., Amicus Curiae for R-2
Appointed vide order dated 07.12.2023)
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CRL.A No.930 of 2018
This Criminal Appeal is filed under Section 378(1) and (3)
of Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order of acquittal passed by the
learned III Addl. District and Sessions Judge, Tumakuru in
Special Case No.259/2015 dated 04.12.2017 thereby acquitting
respondent/accused for the charged offence punishable under
Section 448 of IPC and Section 4 of the POCSO Act, 2012 and
set aside the aforesaid judgment and order of acquittal passed
by the learned III Addl. District and Sessions Judge, Tumakuru
in Special Case No.259/2015 dated 04.12.2017 thereby
acquitting respondent/accused for the charged offence
punishable under Section 448 of IPC and Section 4 of the
POCSO Act, 2012 and convict and sentence the
respondent/accused for the offence punishable under Section
448 of IPC and Section 4 of POCSO Act, 2012, in the interest of
justice and equity.
This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
29.02.2024, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 04.12.2017, passed by the learned III Addl.District and Sessions Judge, Tumakuru, (hereinafter for brevity referred to as the `Special Court') in Special Case No.259/2015, acquitting the accused of the offence punishable under Section 448 of the Indian Penal Code, 1860 (hereinafter -3- CRL.A No.930 of 2018 for brevity referred to as `the IPC') and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as `POCSO Act').
2. The summary of the case of the prosecution in the Special Court was that, on the date 14.04.2015, when the complainant (CW-1/PW-2) (henceforth referred to as `victim girl') was alone at her house at Upparahalli Tanda, within the limits of complainant-Police Station and when her parents and sisters were also away from the house, at about 9.00 p.m., the accused committed house trespass into her house and on the pretext of talking to her about their alleged marriage, initially talking with her, expressed his desire to have sexual intercourse with her, though she refused to his desire, still, he forcibly committed penetrative sexual assault upon her and thereafter alarmed her not to reveal about the incident, otherwise, he would not marry her and left the home. It is thereafter, on a complaint lodged by the victim girl with the complainant-Police on the date 13.06.2015, which came to be registered in the complainant-Police Station in -4- CRL.A No.930 of 2018 their Station Crime No.49/2015 for the offences punishable under Section 376 of IPC and under Section 4 of the POCSO Act. The investigation was conducted by the Investigating Officer, which resulted in the complainant- Police filing a charge sheet against the accused for the offences punishable under Section 448 of IPC and Section 4 of POCSO Act.
3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges against the accused for the offences punishable under Section 448 of IPC and Section 4 of POCSO Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all fifteen (15) witnesses as PW-1 to PW-15, got produced and marked documents from Exs.P-1 to P-14. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the Special Court by its judgment dated 04.12.2017, acquitted the accused of the -5- CRL.A No.930 of 2018 offences punishable under Section 448 of IPC and Section 4 of POCSO Act. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant -State is represented by learned Addl.State Public Prosecutor, respondent No.1/accused is represented by his learned counsel and respondent No.2/de facto complainant is represented by learned Amicus Curiae - Sri V.S.Vinayaka, who is appointed as Amicus Curiae vide order dated 07.12.2023.
6. The learned Addl.State Public Prosecutor for the appellant, learned counsel for respondent No.1 and learned Amicus Curiae for respondent No.2 are physically appearing in the Court.
7. The Special Court records were called for and the same are placed before this Court.
8. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Special Court records.
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9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Court.
10. Learned Addl.State Public Prosecutor appearing for the appellant-State in her argument submitted that, it is none else than the victim girl herself has stated her date of birth as 02.05.1998. The evidence of her parents as PW-3 and PW-4 also shows that the victim girl was minor in her age at the time of the incident. The evidence of PW-8, coupled with Date of Birth Certificate at Ex.P-8 shows that victim girl was minor, with date of birth 02.05.1998. Even the medical evidence of the doctor (PW-12) also shows that the girl was minor in her age. Therefore, the prosecution has proved that the victim girl was minor in her age as on the date of the incident.
11. Learned Addl.State Public Prosecutor further submitted that PW-2-victim girl has given a detailed account of the act of sexual assault upon her by the accused. Her evidence is trustworthy, reliable, as such, even in the absence of any specific medical evidence, the -7- CRL.A No.930 of 2018 evidence of victim girl is sufficient to hold the accused guilty of the alleged offences. She further contended that non-supportive by the pancha witnesses in their evidence to the prosecution is not fatal to the case of the prosecution. With this, she prayed to allow the appeal.
12. Learned Amicus Curiae for respondent No.2 (de facto complainant/victim girl) in his argument contended that the evidence of PW-2 - victim girl is trustworthy and believable, which is sufficient to prove the alleged guilt against the accused. Her evidence, coupled with Ex.P-8 proves that she was minor as on the date of the alleged incident. He also submitted that though there is some delay in lodging the complaint, however, as could be gathered from the evidence of PW-2, PW-3 and PW-4, it is because of holding a panchayath in the meantime to find out amicable settlement in the matter, the delay has been caused. With this he submitted that the appeal deserves to be allowed.
13. Learned counsel for respondent No.1/accused in his brief argument contended that there is inordinate delay -8- CRL.A No.930 of 2018 in lodging the complaint which has not been explained by the prosecution in any manner. As such, the very complaint itself is highly suspectable. There is controversy among the evidence of PWs.3, 4 and 13 as to when they came to know about the incident. This further makes the alleged delay a highly suspicious one. Learned counsel also contended that age of the alleged victim girl is not proved to be minor. She herself has stated in her cross- examination that she does not know her correct date of birth, as such, it cannot be taken that she was minor as on the date of the alleged incident.
Finally stating that even with respect to the alleged incident of sexual assault also, there is no cogent evidence from the prosecution witnesses and that victim girl herself has stated that she was a consenting party to the act, learned counsel submitted that the prosecution has failed to prove any of the offences charged against the accused. As such, the Special Court has rightly acquitted the accused of the alleged offences.
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14. . After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond reasonable doubt that, on the date 14.04.2015, at about 9.00 p.m. in the house of CW-1 at Upparahalli Tanda, Pavagada Taluk, within the limits of complainant-Police Station, the accused criminally trespassed into the house of CW-1 in order to commit a criminal offence and thereby has committed the offence punishable under Section 448 of Indian Penal Code, 1860?
(ii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused after committing criminal trespass into the house of CW-1, committed penetrative sexual assault upon CW-1-the victim girl and thereby has committed the offence punishable under Section 4 of Protection of Children from Sexual Offences Act, 2012?
(iii) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
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CRL.A No.930 of 2018
15. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that the present appeal is filed by the complainant-State against the judgment of acquittal of the accused from the alleged offences punishable under Section 448 of IPC and Section 4 of POCSO Act. Since as per criminal law, the accused is presumed to be innocent until his guilt is proved and further the accused, in the instant case, has already been benefitted by the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
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" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of
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CRL.A No.930 of 2018acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT
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CRL.A No.930 of 2018of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in Roopwanti -vs- State of Haryana and others, reported in AIR 2023 SC 1199.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
16. In order to prove the alleged guilt against the accused, the prosecution examined fifteen witnesses from PW-1 to PW-15. Among them, PW-1 (CW-4) Togya Naika, PW-5 (CW-6) Bhojya Naika, PW-6 (CW-7) Gopala Naika, PW-10 (CW-8) Babu Naika and PW-13 (CW-5) Adhya Naika, were examined by the prosecution projecting them as prosecution witnesses who held a panchayath between the family of the accused and the victim girl in connection with the alleged incident of penetrative sexual assault upon the victim girl by the accused. However, among the above witnesses, except PW-13, none other witnesses have supported the case of the prosecution. Except PW-13, all other alleged panchas to the alleged panchayath, uniformly stated that they do not know
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CRL.A No.930 of 2018anything about the incident and that they have not conducted any panchayath in connection with the alleged incident nor even they have given any statement before the police. It is only PW-13 who stated that accused was teasing PW-2 - the victim girl stating that he is in love with her. The victim girl has stated to him about two to three days after the alleged incident that on the date of the incident, in the night at about 10.00 p.m., when except her, none else were there in the house, the accused entered the house and committed rape upon her. In that connection, a panchayath was held, which was attended by the parents of the accused, his uncle and aunt, however, no decision could be taken in the panchayath since the father of the accused stated that if anybody has got capacity, they can do anything they want.
17. PW-2 (CW-1) the victim girl in her evidence has stated that her date of birth is 02.05.1998. At the time of the alleged incident, she was studying in First year Pre- University course. While she was going to college, the accused was telling that he was loving her.
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CRL.A No.930 of 2018On the date 14.04.2015, while her father had been on work to a place called Chikkanayakanahalli and her mother had been to her mother's house at Penugonda and her sisters had been Balammanahalli to spend holidays, as such, she was alone in the house, accused knocked the door of their house at about 9.00 p.m. and taking a pretext that he wanted to talk about their marriage, entered the house and asked her to sleep with him and expressed his desire to have sex with her. The accused took her to a room in the house, undressed himself and also undressed her and had sexual intercourse with her. He also told her that if she reveals to anyone, he would not marry her.
18. The witness has further stated that, one week after the incident, she went to accused and asked him as to when he is marrying her. The accused told her that he is not going to marry her. Then she revealed the incident to her parents. They conducted a panchayath in the village. The said panchayath was conducted by several people, including Adhya Naika. Since accused did not turn
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CRL.A No.930 of 2018to panchayath, no decision was taken. It is then accompanied by her parents, she went to complainant- Police Station and lodged a complaint as per Ex.P-2.
19. PW-2 has further stated that the police visited the spot as shown by her and drew a scene of offence panchanama as per Ex.P-3. The police also sent her to hospital and got her medically examined. The doctor has obtained her signature to a statement, which she has identified as Ex.P-4. She also identified her statement before the learned Magistrate recorded under Section 164 of Cr.P.C. at Ex.P-5.
This witness was subjected to a detailed cross- examination wherein she adhered to her original version.
20. PW-3 (CW-2) Anand, the father of PW-2 has stated that, at the time of the incident, his daughter (PW-2) was studying her PUC. Often he will be away from his house on his coolie work and visits his house once in fifteen days. He knows the accused. On the date 02.06.2015, when he returned to home, he was told by his
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CRL.A No.930 of 2018daughter (PW-2) that on the date 14.04.2015, while she was alone at home, the accused came there at about 9.00 p.m. and committed rape upon her. The witness stated that he conducted a panchayath in that regard, which included several people including Adhya Naika and the parents of the accused, however, the accused did not turn up to panchayath, as such, panchayath did not held. It is then they lodged a complaint.
21. PW-4 (CW-5) Jayabai, the mother of the victim girl in her very brief examination-in-chief has stated that, on one day her daughter told her that while she (this witness) was away from house, the accused entered their house and committed rape upon her. Thereafter, they enquired with the mother of the accused and conducted a panchayath in the village. Since panchayatdars asked these people to do whatever they want, they went to the police station and lodged a complaint.
Both PW-3 and PW-4 were subjected to a detailed cross-examination from the accused side wherein they adhered to their original version.
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CRL.A No.930 of 2018
22. PW-7 (CW-10) Bhagyalakshmi, then Sub- Inspector of complainant-Police Station has stated that, at the instructions of the Investigating Officer in the matter, she has recorded the statement of the victim girl as per Ex.P-7 on 14.06.2015.
23. PW-8 (CW-12) Nagaraju, the Principal of Swamy Vivekananda Pre-University College, Pavagada, in his very brief examination-in-chief has stated that since the complainant-Police requested him to issue a certificate mentioning the date of birth of the victim girl, he has issued them a Study Certificate as per Ex.P-8, according to which, the date of birth of the victim girl was 02.05.1998.
24. PW-9 (CW-20) E.Anand, then Circle Police Inspector of Pavagada, stated that after taking up investigation in this matter, he visited the place of the offence and in the presence of panchas, drew a scene of offence panchanama as per Ex.P-3. He received the statement as per Ex.P-7 of the victim girl recorded by CW-10. Then he sent the victim girl to her medical examination and got the medical examination done. He
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CRL.A No.930 of 2018requested the Assistant Executive Engineer to prepare a sketch of scene of offence. He also got the statement of the victim girl recorded by the learned Magistrate under Section 164 of Cr.P.C. and handed over further investigation to CW-21.
25. PW-11 (CW-9) Venkatachalamurthy stated that while he was near the house of the victim girl, the police who had been there stating that they had come to draw a mahazar, have obtained his signature at a document. Stating so, he identified scene of offence panchanama at Ex.P-3, but, stated that neither he has read the contents of the mahazar nor the police read it over to him.
26. PW-12 (CW-14) Dr.Sumitra, the Medical Officer at District Hospital, Tumakuru, has stated that at the request of the complainant-Police, she examined the victim girl on the date 13.06.2015 at 10.00 a.m., she was aged 17 years. The victim girl told her that accused had sexual intercourse with her in her house at about 9.00 p.m. on 14.04.2015 while other members in the family were away from the house. The doctor further stated that
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CRL.A No.930 of 2018when she examined her, she did not notice any external injuries on her body. There were no injuries in her genital organ. The hymen was ruptured and there was no swelling. Collecting some evidences from her, she sent the same to Forensic Science Laboratory (FSL). In that regard, she has issued a medical report, which the witness has identified at Ex.P-4.
27. PW-14 (CW-19) Syed Amid, the Assistant Sub- Inspector of complainant-Police Station has stated that on the date 13.06.2015, the complainant appeared before him in the complainant-Police Station and lodged a complaint as per Ex.P-2. After registering the same in their Station Crime No.49/2015, he prepared FIR as per Ex.P-13 and submitted it to the Court. He submitted the case file for its investigation to CW-20.
28. PW-15 (CW-21) M.V.Sheshadri, the other Circle Sub-Inspector of the complainant-Police Station has stated that after taking further investigation of this case, on 16.06.2015 from CW-20, he continued the investigation. On 26.07.2015, the accused appeared before him. He
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CRL.A No.930 of 2018recorded his voluntary statement, got him medically examined and produced him before the Court with remand application. On the date 17.08.2015, he recorded the statements of Anand Naika, Jayabai, Togya Naika, Adhya Naika, Goapala Naika, and Babu Naika. On the date 23.06.2015, he collected sketch of the spot of the offence from Assistant Executive Engineer as per Ex.P-11. He also received katha extract of the place of the offence from Grama panchayath as per Ex.P-9. He received the FSL report as per Ex.P-14 and thereafter filed charge sheet against the accused.
He was subjected to a detailed cross-examination. The denial suggestions made to him in his cross- examination were not admitted as true by him.
29. The first point that is required to be seen is whether the alleged victim girl was minor in her age as on the date of the alleged offence. According to the prosecution, her date of birth is 02.05.1998, as such, as on the date of the offence, she was aged 16 years 11 months. Among the fifteen witnesses examined by the
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CRL.A No.930 of 2018prosecution, the relevant witnesses who have spoken about the age of the victim girl or who are expected to speak about the age of the victim girl are PW.2, PW-3, PW-4, PW-8 and PW-12.
30. PW-2 the victim girl in her evidence, as observed above, has stated that her date of birth is 02.05.1998 and as on the date of the incident, she was studying in First year Pre-University course. In her cross-examination, she stated that there is no horoscope about her date of birth. She does not know as to what documents were given to the school authorities about her date of birth when she was admitted to I Standard of schooling. She also stated that before joining to I Standard of schooling, she was attending Anganawadi classes, there her date of birth was written. She further stated in her cross-examination that she has not ascertained as to what is her correct date of birth. Thus, the very evidence of PW-2 would go to show that she was not quite sure as to what her date of birth was and also as to whether the date of birth shown in her school record was accurate.
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CRL.A No.930 of 2018
31. PW-3 - the father of the alleged victim girl has stated about the age of the alleged victim girl, who is his daughter. He has only stated that, at the time of the incident, she was studying in First year PUC. However, in his cross-examination, he has stated that his daughter i.e., the alleged victim girl was born in Government Primary Health Centre. The said Health Centre had informed about the birth of the child to the concerned registering authorities, however, he has not collected the date of birth certificate from the concerned authorities and has not given the same while admitting her to the school. He also stated that Anganawadi people had given him an approximate date of birth written in a slip, it is based upon the same, he got the date of birth of his daughter mentioned as shown in the school record. He also stated that document regarding date of birth of the child has neither been produced by him to the Court nor to the school while his daughter was admitted to the school.
32. Thus, being none else than the father of the alleged victim girl, this witness made it very clear that
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CRL.A No.930 of 2018there is no authenticated or official record showing the date of birth of his daughter as recorded in the hospital records or with the Registrar of Births. However, on an approximate basis, he has given the date of birth as suggested to him by the Anganawadi person. The evidence of the alleged victim girl - PW-2 that Anganawadi people had written some date of birth corroborates the evidence of PW-3. Thus, neither the evidence of PW-2 nor the evidence of PW-3 would clearly and specifically speaks about date of birth and age of the alleged victim girl.
33. The evidence of PW-4 is also of no much helpful to the prosecution. The said witness being the mother of the alleged victim girl, no where in her evidence has stated about the age or date of birth of PW-2.
34. PW-8 Nagaraju, the Principal of Swami Vivekananda Pre-University College, as observed above, has stated about he issuing the Study Certificate of PW-2 as per Ex.P-8, showing the date of birth of PW-2 as 02.05.1998. It is relying upon his evidence and Ex.P-8, learned Addl.State Public Prosecutor in her argument
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CRL.A No.930 of 2018stated that the said Birth Certificate issued by the school is acceptable. In her support, she relied upon the judgment of Hon'ble Apex Court in Mahadeo, S/o Kerba Maske -vs- State of Maharashtra and another reported in (2013) 14 SCC 637 and also a judgment of Co-ordinate Bench of this Court, in which, one of us were the Member, in The State, through Grameen Police Station, Gulbarga -vs- Sharanu @ Sharanappa @ Sharanabasappa reported in 2022 LiveLaw (Kar) 442.
35. In Mahadeo's case (supra), the Hon'ble Apex Court was pleased to observe in paragraph 12 of its judgment that, in the light of the statutory rule in the form of Juvenile Justice (Care and Protection of Children) Rules, 2007, prevailing for ascertaining the age of a juvenile, it is their opinion that the same yardstick could be rightly followed by the Courts for the purpose of ascertaining the age of the victim as well.
The said Rule 12(3) of Juvenile Justice Rules, reads as below:
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"12. Procedure to be followed in determination of Age.-
(1) xxx (2) xxx (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
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CRL.A No.930 of 2018and, while passing orders in such case, shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, recorded a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause(b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
Thus, as per the above Rules in the first place, the document which can be relied upon by the Court is the matriculation or equivalent certificate, which admittedly, is not available in the matter. In the absence of the same at the second place, it is the Date of Birth Certificate from the School (other than a Play School), first attended which can be relied upon.
36. In the instant case, even though PW-8 has stated that he has issued the Study Certificate as per Ex.P-8, showing the date of birth of PW-2 as 02.05.1998, however, in his cross-examination he has stated that, based upon which document or Transfer Certificate given by which school, the said entry of date of birth was made
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CRL.A No.930 of 2018is not shown in Ex.P-8. Further, he also stated that he does not know as to based upon which document, the date of birth of PW-2 was entered in her primary school record. As such, he cannot say that date of birth shown in Ex.P-8 is the date of birth of PW-2 or not. With this, the said Principal, who is the author of Ex.P-8 himself expressed doubt about the correctness of the date of birth of PW-2 shown in Ex.P-8.
37. Furthermore, admittedly Ex.P-8 is not the Certificate issued by the school authority where PW-2 had first studied. Moreover, as analysed above, even PW-2 herself is not sure about the correctness of her date of birth and PW-3, the father of PW-2, says that the date of birth given to school was an approximate assessment as given to him in a piece of paper by Anganawadi people. Therefore, PW-2, PW-3 and PW-8 were not sure about the correctness of date of birth of PW-2, which Ex.P-8 shows as 02.05.1998. Thus, the said date of birth shown in Ex.P-8 cannot be accepted as a valid proof of date of birth of PW-2.
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38. The learned Addl.State Public Prosecutor also relied upon Sharanu's case (supra) and contended that this Court had accepted the date of birth of the victim girl shown in the Certificate issued by the School, which entry in turn, was based upon the School Leaving Certificate. No doubt, this Court, in the said case, had considered the said Date of Birth Certificate, however, in order to accept the said Date of Birth Certificate, this Court had given a detailed reasoning in paragraph Nos.29 to 32 of its judgment, which clearly set out the ground for acceptance of the said Date of Birth Certificate. Firstly, in the said case, the victim girl had categorically stated that she was minor in her age as on the date of the incident and that her date of birth confirmation certificate issued by the Headmaster of the School also mentions that as on the date of the incident, the victim girl was 15 years and 4 months old. Throughout her evidence, the victim girl adhered to her version that she was minor in her age as on the date of the alleged incident. She even categorically
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CRL.A No.930 of 2018denied a suggestion that she was major in her age as on the date of the alleged incident.
39. Whereas, in the case on hand, as analysed above, PW-2 herself has stated in her cross-examination that she does not know as to based upon which document, her date of birth was entered in her school record. She further stated that, she is not aware as to on which particular date, she was born. Furthermore, as observed above, even PW-3, the father of PW-2, also has stated that based upon an assumption, the date of birth given to him in a chit by Anganawadi people, he got PW-2 admitted to school. Thus, being the father, he was also not quite sure about the correctness of date of birth given by him to the school. Hence, the very school record showing the date of birth of PW-2 as 02.05.1998 carries a serious doubt with it since from its inception. Thus, the observations made in Sharanu's case (supra), are since on a different set of facts and circumstances, the same would not enure to the benefit of the appellant/State.
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CRL.A No.930 of 2018
40. The last piece of evidence upon which the prosecution relies upon regarding the age of PW-2, the alleged victim girl, is the medical opinion of PW-12 Dr.Sumitra, who examined PW-2. Though the said witness in her examination-in-chief has stated that when she examined PW-2 on 13.06.2015, her age was 17 years, however, in her cross-examination, she has clearly stated that in order to ascertain the correct age of PW-2, she did not conduct any scientific examination. Thus, the evidence of PW-12, the doctor is neither of medical opinion from a duly constituted Medical Board nor based upon any medical examination including ossification test conducted by the said witness in order to ascertain the age of PW-2. Therefore, the assessment of age of PW-2 by PW-12, the doctor, appears to be imaginary or based upon an information given to her by PW-2 herself. As such, the said evidence of PW-12 regarding the age of PW-2 is also not safe to believe.
41. Thus, none of the evidence placed by the prosecution are capable to convince the Court as PW-2 was minor in her age as on the date of alleged incident of
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CRL.A No.930 of 2018sexual assault upon her. Hence, it has to be held that the prosecution could not able to prove that PW-2 was minor in her age as on the date of the alleged incident of penetrative sexual assault upon her.
42. The next point that is required to be seen is whether the prosecution has proved that the accused has committed penetrative sexual assault or rape upon PW-2 after committing house trespass to the house of PW-2.
In that regard, it is once again the evidence of PW-2, PW-3, PW-4 and PW-13, which are material on the point, is to be seen. As observed above, PW-2 stated that, on the night of the incident, the accused entered her house on the pretext of talking about their marriage and after entering the house, expressed his desire to have sex with her. She also stated that accused took her to a room in her house and removed the dress worn by her, so also, the dress worn by him and had sexual intercourse with her. She further stated that, one week after the incident, she asked the accused to marry her, for which he refused,
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CRL.A No.930 of 2018then, she informed the same to her parents, who held a panchayath in the village.
43. PW-2 no where in her examination-in-chief has stated that either she was not willing or denied the consent to the accused to have sexual intercourse with her. She did not even say that she resisted or protested for the act of the accused for having sexual intercourse with her. Her examination-in-chief shows that she accepted the desire of the accused to have sexual intercourse with her and cooperated with him for the said act. Interestingly, PW-2 in her cross-examination very specifically stated that since accused told her that in case if the elders did not agree for their marriage, they would run away from the house and get married to each other, she gave her consent to sexual intercourse. Thus, she made it very clear that she was consenting for the sexual intercourse with the accused. Therefore, when she was a consenting party and her age was not proved to be below 18 years as on the date of the alleged incident, it cannot be held that PW-2 was minor as on the said date, as such,
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CRL.A No.930 of 2018consent was not a valid consent in the eye of law. Since she was a consenting party to the sexual intercourse with the accused and the prosecution could not able to establish that she was minor in her age on the said day, the act of the accused for having sexual intercourse with her though assumed to be a fact, still, it falls short of ingredients of offence under Section 376 of IPC and it does not attract either Section 4 or Section 5 of POCSO Act. Hence, the trial Court has not drawn presumption under Section 29 of POCSO Act.
In addition to the above, it also cannot be ignored that PW-3, the father of PW-2, has stated that it was only on 02.06.2015, when he returned to village, he came to know through PW-2 that accused had entered into his house on the night of 14.04.2015 and subjected her to rape. It is thereafter, he conducted a panchayath.
44. PW-4, the mother of PW-2, no where stated as to when she came to know about the alleged sexual assault upon her daughter. Her examination-in-chief in the evidence is very brief and bereft of any details, except stating that when she had been to the village about an
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CRL.A No.930 of 2018year back, she came to know from PW-2 that the accused had committed rape upon her.
45. Since both PW-3 and PW-4 being hearsay witnesses from PW-2 and the very evidence of PW-2, as analysed above, go to show that she was a consenting party to the alleged act and her age was not proved to be of a minor on the date of the incident, it cannot be held that she was subjected to any act punishable under Section 4 of POCSO Act.
Added to the above, PW-13 though has stated that he had participated in a panchayath with respect to the alleged incident, however, according to him, PW-2 had told him two or three days after the incident. Admittedly, he is the uncle of PW-2 in relationship. Thus, he was aware of the alleged incident within two or three days of the alleged incident. According to him, after coming to know about the alleged incident, a panchayath was conducted. Therefore, according to this witness, panchayath was not conducted belatedly i.e., one and half months after the alleged incident.
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CRL.A No.930 of 2018
46. Further, when PW-2 is shown to have stated about the alleged incident to his uncle i.e., PW-13 within two or three days after the alleged incident, it is highly unbelievable that she did not reveal about the incident to her mother and father till 02.06.2015. As such also, apart from the evidence of PW-2, which itself would go to show that she was a consenting party to the alleged act, even the evidence of PW-3, PW-4 and PW-13 also does not inspire confidence to believe that the alleged incident of sexual intercourse with PW-2 was committed by accused on the alleged date, time and place as mentioned in the charge.
47. When the evidence of PW-2, PW-3, PW-4 and PW-13 does not inspire any confidence to believe their version and is of no help to the prosecution to prove the alleged guilt of the accused under Section 4 of POCSO Act, the evidence of PW-12, the doctor that she heard from alleged victim girl that accused committed sexual intercourse with her alone is not sufficient to hold the accused guilty of the alleged offences. In fact, even
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CRL.A No.930 of 2018PW-12 - the doctor, also has not stated in her evidence that PW-2 told that she was subjected to sexual assault or rape by the accused. But, what PW-12 has stated is that PW-2 told her that accused after undressing her and also undressing himself, kissed and had sexual intercourse. The doctor further stated that she did not notice any external injuries on the body of the alleged victim, however, she noticed the rupture of hymen. Therefore, the medical evidence also would not help the case of the prosecution in proving the alleged guilt against the accused.
PW-12 - the doctor has further stated that after collecting some material from PW-2 during her examination, she has sent the same to Forensic Science Laboratory. However, in her cross-examination, she stated that the Investigating Officer has neither shown the Forensic Science Laboratory report to her nor collected final opinion from her.
48. PW-15/CW-21 M.V.Sheshadri, the Investigating Officer who claims to have collected the FSL report as per
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CRL.A No.930 of 2018Ex.P-14, has no where stated as to why he did not show the said report to PW-12, the doctor, who had examined PW-2. Even otherwise, a perusal of Ex.P-14 would go to show that, though Forensic Science Laboratory examined seven articles, including vulval smear, scalp hair combing, scalp hair cuttings, pubic hair cuttings and nail clippings of the victim, however, presence of seminal stain was not detected in all those items. The said report shows that it also examined vaginal smear sent to it for examination. Even in the said article also, it did not notice the presence of spermatozoa. Thus, even the Forensic Science Laboratory report also was of no help to prosecution in any manner to prove the alleged guilt of sexual assault said to have been committed by the accused.
49. Learned Addl.State Public Prosecutor for the appellant/State in her argument relied upon a judgment of Hon'ble Apex Court in Phool Singh -vs- State of Madhya Pradesh, reported in (2022) 2 SCC 74, and contended that if the sole testimony of the victim is believable, no
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CRL.A No.930 of 2018corroboration is warranted to hold the accused guilty of the sexual assault.
50. In Phool Singh's case (supra), our Hon'ble Apex Court after referring to its previous judgments in several cases was pleased to observe that, applying law laid down by the said Court in several of its previous cases discussed in the judgment to the facts of the case before the Court, it saw no reason to doubt the credibility and/or trustworthiness of the prosecutrix. It is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix was held to be sustainable.
51. In the instant case, as observed above, the evidence of none else than PW-2, the alleged victim girl herself is not trustworthy and believable. She in her cross-examination, as observed above, specifically stated that since the accused expressed his desire to marry her, she gave her consent for the sexual intercourse. Thus, she has shown herself to be a consenting party to the
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CRL.A No.930 of 2018alleged act. Further, the prosecution could not able to prove that she was minor as on the date of the alleged incident. Thus, the sole testimony of PW-2 is not safe to believe and to hold that accused is guilty of committing penetrative sexual assault upon her. As such, the judgment of Hon'ble Apex Court in Phool Singh's case (supra), would not enure to the benefit of the prosecution.
52. Lastly, it is also the allegation of the prosecution that the accused committed house trespass of the house of PW-2 and thereafter, committed sexual assault upon PW-2. As observed above, the accused was not a stranger to PW-2. He was a known person to her. The evidence of PW-2 would go to show that it is only after knocking the door and stating to PW-2 that he wanted to talk about their marriage, the accused entered the house of PW-2. No where PW-2 in her evidence has stated that she had denied permission for the accused to enter her house. Further, she had not objected for the accused to enter her house. Even after entering the house, according to PW-2,
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CRL.A No.930 of 2018the accused talked to her for some time, including his desire to have sexual intercourse with her. According to PW-2, she gave her consent to the act and then the accused proceeded further.
53. Under the said circumstances, it cannot be held that entry of the accused to the house of PW-2 was with an intent to commit an offence or to intimidate, insult, annoy PW-2 or that he remained in the said house unlawfully with an intent to thereby intimidate, insult, annoy PW-2. Therefore, even if it is assumed that accused had entered into the house of PW-2 on the alleged night, the same cannot be construed as a house trespass punishable under Section 448 of IPC.
54. It is appreciating the evidence placed before it in its proper perspective, since the Special Court has given a correct finding acquitting the accused of the alleged offences, we do not find any reason to interfere in the same.
55. Accordingly, we proceed to pass the following:
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ORDER The Criminal Appeal stands dismissed as devoid of merits.
The Court while acknowledging the services rendered by the learned Amicus Curiae for respondent No.2 -
Sri.V.S.Vinayaka, recommends an honorarium of a sum of not less than `5,000/- payable to him by the Registry.
Registry to transmit a copy of this judgment along with Special Court's records to the concerned Special Court without delay.
Sd/-
JUDGE Sd/-
JUDGE bk/