Karnataka High Court
State Of Karnataka vs B. Rajanna S/O. Late Jadieppa on 23 August, 2018
Bench: G.Narendar, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO.100165/2017
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY
CIRCLE INSPECTOR OF POLICE,
SIRUGUPPA POLICE STATION,
BALLARI DIST., THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
AND:
B.RAJANNA S/O LATE JADLEPPA @
B.HULUGAPPA, AGE: 35 YEARS,
WORKING AS TEMPORARY POST BAG RUNNER,
R/O KOTHALACHINTHE VILLAGE,
SIRUGUPPA TALUK, BALLARI DIST.
... RESPONDENT
(BY SRI.VIDYASHANKAR G DALVAI, AMICUS-CURIAE)
THIS APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF
CR.P.C., AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 14.10.2016 PASSED IN SPECIAL CASE NO.47/2014 BY THE
I ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI AND TO
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 376 AND 506 OF IPC AND UNDER
SECTIONS 3 AND 4 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCE ACT, 2012.
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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
K. SOMASHEKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been listed for admission. Therefore, with the consent of the learned Additional SPP for the State and the learned counsel Vidyashankar G. Dalvai, as amicus-curiae for the respondent-accused, the appeal has been taken up for final disposal.
2. This appeal is preferred by the State against the judgment of acquittal rendered by the Court of the Ist Additional District and Sessions Judge, Ballari, in Special Case No.47/2014 dated 14th October, 2016, wherein the accused has been acquitted for the offences punishable under Sections 376 and 506 of Indian Penal Code, 1860 (for short 'IPC'), besides Sections 3 and 4 of Protection of Children from Sexual Offence Act, 2012 (for short, 'POCSO Act').
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3. The factual matrix of the case are as under:
In sum and substance, the prosecution case is that, on 02.11.2013 at about 10.00 p.m. at Kothalachinthe village when the complainant was sleeping in front of her house on the Varandah, at that time, her husband- Veeresh had gone outside for collecting amount from some persons. CWs.3 and 4 were also sleeping inside the house. When the complainant was sleeping in drowsiness in between 11.45 to 12.00 in the mid night, that one person came and slept on her and committed sexual assault. It is further stated that the victim being the complainant thought that, he must be her husband and asked him saying that at what time he has come. As such, the said person told that he was not her husband but he was a different person by name Raja. Therefore, C.W.1 told the accused that she would inform the said act committed by him on her person, to her parents and saying so she kicked at him. At that time, the accused threatened the 4 complainant saying that he would spoil her reputation and also her family members and extended life threat saying that she would face dire consequences if she discloses the said acts committed by him on her.
4. In pursuance to the act of the accused, the complainant came to the Police station on 03.11.2013 at about 6.45 p.m. and she lodged a complaint against the accused by narrating the incident, that he committed sexual assault on her on 02.11.2013 in between 11.45 to 12.00 in the mid night. Based upon her oral complaint, reduced into writing a case in Crime No.63/2013 came to be filed for the offences punishable under Sections 376 and 506 of IPC besides Sections 3 and 4 of POCSO Act. Subsequent to registration of the crime, the case was taken up for investigation by the Investigation Officer, and he has investigated the case and laid the charge sheet against the accused for the aforesaid offences. 5 Subsequently, the trial Court has framed charge against the accused for the aforesaid offences.
5. In order to establish the guilt of the accused, the prosecution in all examined P.Ws.1 to 14 and also got marked several documents at Exs.P-1 to P-21 and the material objects as M.Os.1 to 10. Subsequent to closure of the evidence for the prosecution, the accused was examined as required under Section 313 of Cr.P.C. for incriminating statements appeared against him. The accused has denied the truth of the evidence of the prosecution witnesses. The accused did not come forward to adduce any defence evidence on his behalf.
6. Subsequently, the trial Court heard the arguments advanced by the prosecution and the defence counsel. On scanning the entire evidence, the accused has been acquitted for the offences punishable under Sections 376 and 506 of IPC besides Sections 3 and 4 of 6 POCSO Act. It is this judgment, which is challenged under this appeal.
7. In this appeal we have heard arguments of the learned Additional SPP for the State and so also Sri.Vidyashankar G. Dalvai, learned counsel as amicus- curiae for the respondent/accused.
8. Learned Addl. SPP for the State during the course of his arguments has taken us through the evidence of PW.1-Devika, who is the victim and also being the author of complaint at Ex.P.1. P.W.2 being her husband, P.W.11 being the PSI who is stated to have received the complaint at Ex.P.1 and recorded the FIR as per Ex.P.10. P.W.14 being the Investigating Officer who laid the charge sheet against the accused by conducting spot mahazar as per Ex.P.2 in the presence of P.W.1 and P.W.6 and so also conducted seizure mahazar as per Ex.P.8 in the presence of P.W.7 and P.W.9 and so also secured the certificate of P.W.1 as per Ex.P.4 and so also 7 the certificate at Ex.P.5 pertaining to the accused. But the trial Court did not appreciate the above said material evidence in a proper perspective to prove the guilt of the accused as he had committed sexual assault on P.W.1 being a married woman and the author of the complaint at Ex.P.1. Wherein she has narrated in her complaint as well as in her evidence that the accused had come to her house and slept on her on the fateful day of the incident and had sexually assaulted her.
9. P.W.1-Devaki, states that, her marriage was performed with P.W.2-Veeresh and she was not a minor. That aspect has not been properly considered by the trial Court keeping in view the evidence of P.W.1 as well as evidence of P.W.2 and so also the evidence of P.W.3 and P.W.4 as they are the material witnesses for the prosecution to considering for offences which are leveled against the accused as he committed sexual assault on the minor-P.W.1 Devaki and so also being the married woman. 8
10. It is further contended that the trial Court did not properly analyze the evidence of those witnesses but erroneously come to the conclusion that the prosecution did not produce cogent as well as consistent evidence to convict him. The trial Court has failed to consider the evidence of P.W.1 and P.W.2 coupled with the evidence of P.W.4 as well as evidence of P.W.14 being the Investigating Officer who laid the charge sheet against the accused, even relating to the concept that her marriage was performed with P.W.2-Veeresh as she was a minor. Therefore, it would cause miscarriage of justice. Therefore, this appeal requires reappreciation of the entire evidence on record and reversal of the acquittal judgment rendered by the trial Court and convict the accused for the offences punishable u/S 376 and 506 of IPC besides Sec. 3 and 4 of POCSO Act.
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11. Learned counsel Sri Vidyashankar G. Dalvai as Amicus Curiae for the respondent-accused has contended that by appreciating the evidence of P.W.1 said to be the victim and so also being an author of the complaint at Ex.P.1 and so also being the wife of P.W.2-Veeresh, it is revealed that P.W.2-Veeresh and accused are close friends and her husband was using the Suzuki vehicle of the accused. The same has been borne out in the evidence of P.W.1. The accused had suffered a bout of Polio on his leg and also is a short person and so also stout. Therefore, it is not possible for him to had gone to the place, where the victim was sleeping outside the house to have sexual intercourse with her at around 11-45 to 12 in the midnight. The complaint was filed by the complainant on 03.11.2013 at around 6.45 p.m. by narrating the incident said to be committed by the accused on her. It is based upon her complaint, a case in Crime No. 63/2013 came to be filed for the offences punishable u/S 376 and 506 of IPC besides Sec. 3 and 4 of POCSO Act, but the evidence 10 of P.W.1 has been contradicted, the evidence of P.W.2 who his her husband.
12. The entire case of the prosecution is revolving around the evidence of P.W.1 and P.W.2 and their evidence run contrary to each other and further contradicted by the evidence of P.W.11 and P.W.14. P.W.4 is the Doctor who examined the victim and issued certificate as per Ex.P.4. In the cross-examination he has specifically stated that the complainant did not say that the sexual assault had taken place on her, since the victim is a married woman it was possible that her husband might have had sexual intercourse with her. He did not mention in Ex.P.4 as to at what time the sexual assault had taken place on her. P.W.11 the Police Inspector, who stated in his evidence that on 03.11.2013 at about 6.45 p.m. P.W.1 had come to the Police station and gave a complaint as per Ex.P.1 which is reduced into writing and based upon her complaint, a crime came to be registered. Thereafter, they 11 proceeded with the case for investigation. P.W.14 is the Investigating Officer who laid the charge sheet against the accused. But his evidence runs contrary to the evidence of P.W.1 and P.W.2. These are all the evidence that was appreciated by the trial Court and rightly came to the conclusion by assigning sound reasons that the prosecution did not produce any cogent evidence that the accused had been to the place where P.W.1 had slept and at around 11-45 to 12 in the midnight and committed sexual assault on her. Therefore, this appeal does not call for any interference and seeks for dismissal of the appeal preferred by the State by confirming the judgment of acquittal rendered by the trial Court in S.C. No. 47/2014 dated 14.10.2016.
13. Having regard to the strenuous contentions taken by the learned Addl. SPP for the State and so also the learned counsel as Amicus Curiae for the respondent- accused are concerned, it is relevant to state that, the 12 evidence of P.W.1 who is the author of the complaint at Ex.P.1 and also being a victim as her evidence which contradicted the evidence of P.W.2-Veeresh, who is none other than her husband. She has not specifically stated in her evidence relating to the age and no document has been produced to prove her date of birth, but admits that her marriage was not a child marriage. Therefore, the concept of child marriage does not attract as she herself has clearly admitted that her marriage is not a child marriage which was performed with P.W.2-Veeresh. Therefore, the question of applying the provisions under the POCSO Act does not arise at all.
14. P.W.2-Veeresh being the husband of the victim has specifically stated in his evidence that his sister and also his grandmother were also sleeping inside the house. That himself and his wife P.W.1 were also sleeping outside the house but on the day of the incident in question that he has been to B.G. Dinni at around 9 p.m. in order to 13 secure the amount from some person and returned at 12 in the mid night and on seeing that P.W.1-Devaki about weeping and as such he enquired with the committing sexual assault on her. Therefore, made search of the accused but he could not trace him. Subsequently, he even stated the incident said to be committed by the accused on his wife-P.W.1-Devaki to his mother and thereafter to file a complaint as per Ex.P.1 before the Police, P.W.14 who conducted spot mahazar as per Ex.P.2 and also conducted seizure mahazar as per Ex.P.8 in the presence of P.W.1, 6, 7 and 9.
15. P.W.4 being the Doctor who subjected to examination the victim-Devaki and issued certificate as per Ex.P.4. The said P.W.4 who have been subjected to examination of the accused and also issued certificate as per Ex.P.5. P.W.3 Veeraiah Swamy who is none other than the father of the complainant. He did not spell out in his evidence relating to his daughter being a minor during 14 her marriage with P.W.2-Veeresh and he did not spell out in his evidence relating to the age of the victim and he did not produce any horoscope to prove the age of the victim. The evidence of P.W.1 and P.w.2 which runs contrary to each other and further contradict the evidence of P.W.11 and P.W.14. Moreover, the evidence of P.W.1 and P.W.2 coupled with the evidence of P.W.3 and P.W.4 are found to be camouflage for the offences leveled against the accused.
16. Therefore, it is said that the trial Court has rightly come to the conclusion by assigning sound reasons that the prosecution did not produce any cogent, consistent and acceptable evidence to probabalize the accusation that the accused had sexually assaulted the victim being a married woman. Therefore, this appeal does not call for interference in the judgment of acquittal rendered by the trial Court in S.C. No. 47/2014 for the offences charged against him under Section 376 and 506 of IPC, besides Sec. 3 and 4 of the POCSO Act. 15 Accordingly, the trial Court was right in coming to the conclusion by assigning sound reasoning that the accused deserves acquittal.
17. Therefore, for the aforesaid reasons, we are of the opinion, that the appeal does not merit admission. Moreover, the evidence of the prosecution appears to be a camouflage for the offences leveled against the accused. Consequently, the appeal deserves to be dismissed. Accordingly, we pass the following order.
ORDER Appeal filed by the appellant-State is hereby dismissed. Consequently, the judgment of acquittal rendered by the trial Court in Special Case No.47/2014 dated 14th October, 2016 is hereby confirmed.
Learned counsel, Sri.Vidyashankar G Dalvai is appointed as amicus-curiae for the respondent/accused. He has given assistance for disposal of this appeal. 16 Therefore, the fee in a sum of Rs.7,000/- is fixed and the same shall be paid by the State to the amicus-curiae in accordance with law.
SD JUDGE SD JUDGE Bvv/Sh