Karnataka High Court
Mustafa vs The State Of Karnataka on 7 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 1124 of 2017
C/W CRL.A No. 1125 of 2017
CRL.A No. 699 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1124 OF 2017
C/W
CRIMINAL APPEAL NO. 1125 OF 2017
C/W
CRIMINAL APPEAL NO. 699 OF 2018
IN CRL.A.1124/2017
BETWEEN:
Digitally THE STATE
signed by D BY BANTWAL TOWN POLICE STATION
K BHASKAR
REP. BY STATE PUBLIC PROSECUTOR
Location:
High Court HIGH COURT BUILDING
of Karnataka BENGALURU - 560 001.
...APPELLANT
(BY SRI. H S SHANKAR - HCGP)
AND:
MUSTAFA
S/O B.K.MOHAMMED
AGE 32 YEARS
CASTE BY MUSLIM
R/O MADAKA MANE
GOLATHAMAJALU VILLAGE
BANTWAL TALUK - 574 211.
...RESPONDENT
(BY SRI. B LETHIF - ADVOCATE)
THIS CRL.A. FILED U/S.378(1) & (3) CR.P.C PRAYING TO
A] GRANT LEAVE TO FILE AN APPEAL AGAINST THE IMPUGNED
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C/W CRL.A No. 1125 of 2017
CRL.A No. 699 of 2018
THAT PART OF JUDGMENT AND ORDER OF ACQUITTAL DATED
17.09.2016 PASSED BY THE VI-ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU IN S.C.NO.41/2012 IN
SO FAR AS IT RELATES TO ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFEFNCES P/U/S 366(A), 376 AND 506 OF
IPC; B] SET ASIDE THAT PART OF JUDGMENT AND ORDER OF
ACQUITTAL DATED 17.09.2016 PASSED BY THE
VI-ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU S.C.NO.41/2012 IN SO FAR AS IT RELATES TO
ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFEFNCES
P/U/S 366(A), 376 AND 506 OF IPC AND C] CONVICT AND
SENTENCE THE ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 366-A, 376 AND 506 OF IPC.
IN CRL.A.1125/2017
BETWEEN:
THE STATE OF KARNATAKA
BY BANTWAL TOWN POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
...APPELLANT
(BY SRI. H S SHANKAR - HCGP)
AND:
MUSTAFA
S/O B.K.MOHAMMED
AGE 32 YEARS
CASTE BY MUSLIM
R/O MADAKA MANE
GOLATHAMAJALU VILLAGE
BANTWAL TALUK - 574 211.
...RESPONDENT
(BY SRI. B LETHIF - ADVOCATE)
THIS CRL.A. FILED U/S.377 CR.P.C PRAYING TO MODIFY
THAT PART OF JUDGMENT AND ORDER DATED 17.09.2016
PASSED BY THE LEARNED VI-ADDL. DISTRICT AND SESSIONS
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JUDGE, D.K., MANGALURU IN SESSIONS CASE NO.41/2012 IN
PASSING INADEQUATE SENTENCE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 342 OF IPC AND IMPOSE
PROPER AND ADEQUATE SENTENCE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 342 OF IPC.
IN CRL.A.699/2018
BETWEEN:
MUSTAFA
S/O B.K.MOHAMMED
AGE 27 YEARS
R/O MADAKA MANE
GOLATHAMAJALU VILLAGE
BANTWAL TALUK
D.K. DISTRICT - 574 211.
...APPELLANT
(BY SRI. B LETHIF - ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BANTWAL TOWN POLICE STATION
D.K. DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. H S SHANKAR - HCGP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGEMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 17.09.2016 PASSED BY THE VI-ADDL.
DISTRICT AND SESSION JUDGE, D.K. MANGALURU IN
S.C.NO.41/2012 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 342 OF IPC AND ACQUIT THE APPELLANT.
THESE CRIMINAL APPEALS, COMING ON FOR FINAL
HEARING, THIS DAY, K. SOMASHEKAR .J., DELIVERED THE
FOLLOWING:
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CRL.A No. 699 of 2018
COMMON JUDGMENT
Crl.A.No.1124/2017 is preferred by the appellant -
State seeking to set-aside the judgment of acquittal
rendered by the VI Additional District and Sessions Judge,
D.K.Mangaluru in S.C.No.41/2012 dated 17.09.2016
acquitting the accused for the offence punishable under
Sections 366-A, 376 and 506 of IPC and to convict the
accused for the aforesaid offences.
2. Crl.A.No.1125/2017 is preferred by the appellant -
State seeking modification of the judgment of conviction
and order of sentence rendered by the VI Additional
District and Sessions Judge, D.K. Mangaluru in
S.C.No.41/2012 dated 17.09.2016 whereby the trial Court
has passed inadequate sentence for the offence punishable
under Section 342 of IPC and to impose adequate
sentence for the said offence.
3. Crl.A.No.699/2018 is preferred by the appellant -
accused seeking to set-aside the judgment of conviction
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and order of sentence rendered by the VI Additional
District and Sessions Judge, D.K.Mangaluru in
S.C.No.41/2012 dated 17.09.2016 insofar as it relates
convicting him for the offence punishable under Section
342 of IPC and to acquit him for the aforesaid offence by
consideration of the grounds urged therein.
4. All these three appeals are arising out of the
judgment of conviction and order of sentence rendered by
the VI Additional District and Sessions Judge,
D.K.Mangaluru in S.C.No.41/2012 dated 17.09.2016 for
the offences as stated in the operative portion of the
order. Therefore, all these appeals are disposed of
through this common judgment.
5. Heard learned HCGP Sri H.S.Shankar for the State
and so also, learned counsel Sri B.Lethif for the accused.
Perused the impugned judgment of conviction and order of
sentence rendered by the trial Court.
6. The factual matrix of the appeals are as under:
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It is stated in the case of the prosecution that PW.1 -
complainant namely Rukmini filed a complaint against the
accused person before the Bantwal Town Police alleging
that CW.2/victim being her daughter was working in Kala
Mudranalaya at Kalladka of Golthamajalu village. That in
the evening on 11.03.2009, the accused called the victim
to Pumpwell in Mangaluru and from there he abducted her
in a car to House No.312, 1st floor, K.A.Commercial
Complex of Kodambaru of Minja village, Kasaragodu,
Kerala against her will with a point of knife threatened and
wrongfully confined her. On 17.03.2009 at 9.30 p.m. in a
bus waiting shed at Balipaguli, Minja village he alleged to
have committed forcible sexual intercourse on her. In
pursuance of the act of the accused and so also, on filing
of complaint by PW.1, criminal law was set into motion by
registering the case in Crime No.55/2009 for the offences
punishable under Sections 366-A, 342, 506 and 376 of
IPC.
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7. Subsequent to registration of crime against the
accused, the investigating officer took up the case for
investigation and thoroughly investigation has been done.
During the course of investigation he conducted mahazar
as per Ex.P4 in the presence of PWs.9 and 10 who have
subscribed their signature. Another mahazar was also
conducted as per Ex.P5 and PWs.9, 10 and 14 have
subscribed their signature. In addition to that the IO
secured wound certificate at Ex.P8. He also recorded the
confession statement of accused as per Ex.P10.
Statement of witnesses were also recorded and so also,
FSL report as per Ex.P15 was secured. Thereafter, charge
sheet against the accused came to be laid before the
committal Court. The committal Court committed the case
to the Court of Sessions for trial wherein the accused was
secured and the trial Court heard arguments of learned
Public Prosecutor for the State and so also, the defense
counsel and having found prima-facie case against the
accused, charges for offences under Sections 366-A, 342,
506 and 376 of IPC came to be framed. The charges were
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read over and explained in the language known to him,
but the accused pleaded not guilty and claimed to be tried.
Accordingly, plea of the accused was recorded separately.
8. Subsequent to framing of charge against the
accused, the case of the prosecution was put on trial and
accordingly, PW.1 to PW.19 were subjected to
examination, got marked documents as per Ex.P1 to
Ex.P17 and so also material objects as per MO.1 to MO.3.
Subsequent to closure of the evidence of the prosecution
witnesses, the accused was subjected to examination as
contemplated under section 313 of Cr.P.C. wherein the
accused denied the truth of the evidence of the
prosecution adduced so far. Subsequent to recording
incriminating statement, accused was secured to adduce
defense evidence, if any, but he did not come forward to
adduce any evidence. Accordingly, it was recorded.
9. Subsequently, the trial Court heard the arguments
advanced by the learned Public Prosecutor and so also the
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counter argument made by the defence counsel. On
appreciation of the oral and documentary evidence
available on record, the trial Court passed impugned
judgment convicting the accused for the offence under
Section 342 of IPC and acquitted for the offences
punishable under Sections 366-A, 376 and 506 of IPC. It is
this judgment which is challenged by the State in
Crl.A.No.1125/2017 seeking modification of the judgment
insofar as it relates to convicting the accused under
Section 342 of IPC and to impose adequate sentence for
the aforesaid offence. Further, the State has also filed
Crl.A.No.1124/2017 seeking to set aside the impugned
judgment insofar as it relates to acquitting the accused for
the offences punishable under Sections 366-A, 376 and
506 of IPC. The accused has filed Crl.A.No.699/2018
seeking to set-aside the judgment of conviction insofar as
convicting him under Section 342 of IPC by urging various
grounds.
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10. Learned HCGP for the State contends that the
impugned order of trial Court imposing inadequate
sentence for the offences punishable under Section 342 of
IPC is contrary to the facts and evidence available on
record. The trial Court has committed error in appreciating
the evidence of PW.6 - victim who has stated in her
evidence regarding the acts committed by the accused.
Her evidence is corroborated by the evidence of PW.2 and
17. Further, the evidence of PW.2 being Doctor who issued
Ex.P2 - wound certificate and Ex.P17 - statement of
PW.19 clearly establish the attempt to commit rape by the
accused. But the trial Court has not properly appreciated
these materials and imposed inadequate sentence for the
offence punishable under Section 342 of IPC. It is further
contended that the trial Court erred in rejecting Exs.P13
and P14 which were produced in proof of age of the victim,
without assigning proper reasons and the same requires
intervention of this Court, if not, there will be miscarriage
of justice. Further, it is contended that though the trial
Court held that the prosecution has made out prima-facie
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case against the accused for the offence under Section
342 of IPC, but erred in imposing inadequate sentence,
which requires to be enhanced by this Court.
11. Learned HCGP further contends that the
impugned judgment of acquittal recorded by the trial Court
and the reasons assigned therein is erroneous and the
same has led to miscarriage of justice. The trial Court has
failed to appreciate the evidence of PW.6 - victim who
supported the prosecution case and the evidence of PW.1-
mother of victim and author of the complaint based upon
which the criminal law was set into motion, is
corroborative to her complaint as per Ex.P1. The trial
Court has failed to notice the evidence of PW.6 who stated
that without her consent the accused forcibly committed
sexual assault on her with the point of knife and
threatened her. The trial Court ought to have convicted
the accused for the offences under Sections 366-A, 376
and 506 of IPC.
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12. The trial court has not properly appreciated the
evidence of PW.2 being the doctor who issued Ex.P2 -
wound certificate which supports the prosecution case and
so also, the trial court rejected Exs.P13 and P14, the
school certificate and copy of TC in proof of the age of
victim without assigning proper reasons. The trial Court
has not even appreciated the evidence of PW.17 -
Scientific Officer who examined MOs.1 to 3 being the
innerwear, vaginal swab and vaginal smear of PW.6 and
issued FSL report as per Ex.P15. The trial court has not
considered the evidence of PW.2 mother of victim whose
evidence corroborates with the evidence of PWs.6 and
clearly disclose the act of accused with the victim and also
corroborates with the evidence of other prosecution
witnesses. Only by pointing out some minor discrepancies
in the evidence of prosecution witnesses, the trial Court
has not properly appreciated the evidence of material
witnesses. The trial court has not raised proper
probabilities and drawn inferences on the basis of the
evidence on record. While passing the order of acquittal,
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the trial Court has not placed any sound reasoning and
erred in acquitting the accused for the offences under
Sections 366-A, 376 and 506 of IPC. On all these
grounds, learned HCGP for State seeks intervention of this
Court by setting aside the judgment of acquittal for the
offences under Sections 366-A, 376 and 506 of IPC and
also seeks for modification of the judgment of conviction
insofar as imposing inadequate sentence for the offence
under Section 342 of IPC and seeks for imposing adequate
sentence for the said offence.
13. Learned counsel Sri Lethif.B. for the appellant -
accused in Crl.A.No.699/2018 contends that the trial Court
committed error in convicting the appellant only for the
offence under Section 342 of IPC while acquitting for the
offence under Sections 366-A, 376 and 506 of IPC. It is
his contention that the trial Court erred in convicting the
accused for the offence under Section 342 of IPC without
there being any evidence in respect of wrongful
confinement of PW.6 being the victim. Further there is no
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ingredient made out by the prosecution for convicting the
appellant for the said offence. There are contradictions in
the evidence of PW6 to prove the case of prosecution
about her wrongful confinement. Therefore, the same is
liable to be set-aside.
14. It is further contended that the prosecution has
suppressed the actual incident and has come up with the
concocted story that the accused has committed the
offence without appreciating the case of the prosecution in
a proper perspective manner and without assigning proper
and cogent reasons. The trial Court has committed error
in holding that the prosecution has proved the case
beyond reasonable doubt that accused is guilty of the
offence alleged against him. On all these grounds counsel
for the appellant - accused seeks for setting aside the
judgment of conviction insofar as convicting the accused
for the offence under Section 342 of IPC by allowing the
appeal.
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15. It is in this context of the contentions as taken
by the learned HCGP for State in Crl.A.No.1125/2017 and
Crl.A.No.1124/2017 and so also, counsel for the appellant
- accused in Crl.A.No.699/2018, it is relevant to refer to
the evidence of PW.1 - Rukmini being the mother of victim
and also author of the complaint based upon which the
criminal law was set into motion. She has stated in her
evidence that she lodged the complaint on 16.3.2009 that
accused abducted her daughter - PW.6 who was 16 years
with an intention to marry her. She has also stated that
the accused had forcible sexual intercourse on her even
though she resisted. In the cross-examination she has
stated that she cannot say in which year her daughter -
PW.6 was born. She has stated that accused took her
stating that he would marry her and then she lodged the
complaint. But PW.6 did not come to home and was
staying in Ashrama. Now PW.6 is married and is working
in Panchayath office.
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16. PW.2 - Dr.K.Radhika has stated in her evidence
that on 6.4.2009 PW.6 victim was brought before her for
examination. She examined PW.6 and found no injuries
on her body. In her genitals she did not found other pubic
hair and her hymen was torn. She was capable to have
sexual intercourse and she opined that there was chances
of sexual intercourse would have taken place. She
collected vaginal smear and swab for chemical
examination and also collected her inner clothes. She
issued wound certificate as per Ex.P2.
17. PW.3 - Ganesha in his evidence has stated that
in the year 2009 victim was working in Kala Mudrana at
Kalladka which belonged to PW.4 - Harish Bangera. PW.1
informed him that her daughter went on 10.3.2009 saying
that she would go to her grandfather's house. Further,
PW.1 has stated that accused abducted PW.6 with an
intention to marry.
18. PW.4 - Harish Bangera is the owner of Kala
Mudrana, Kalladka and he has stated that PW.2 was doing
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binding and numbering work in his Mudranalaya. On
10.3.2009 PW.1 came and asked him that PW.6 did not
come to home. From 11.3.2009 PW.6 did not came to
work. Thereafter he came to know that accused abducted
PW.6 with an intention to marry her.
19. PW.6 being the victim has stated that from June
2008 to March 2009 she was working in Kala Mudranalaya
at Kalladka which belonged to PW.4. She has stated that
she know the accused and that on 10.3.2009 she went
saying her mother going to grandfather's house at
Purvipalya, but she did not went there but went to her
friend Sudha's house. Next day came to Kala Mudranalaya
and her mother came there and abused her in respect of
her relationship with accused. Therefore, she informed
the said incident to the accused who in turn told her that
he will help her and asked her to come to Mangaluru. She
went there and got down at Pumpwell after seeing
accused. After sometime the accused asked her to sit in a
car and asked her to marry him. But she denied stating
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that she belong to other community and also she has not
crossed her age. But accused with knife point threatened
her and abducted her and confined in a room at
Manjeshwara. Next day he took her forcibly in a car to
Kotekar, Kerala and confined in the house and had forcibly
committed sexual intercourse on her. After lodging of
complaint, the police traced and brought her to Bantwal
police Station. She stated that her date of birth is
4.3.1992 and at the time of incident her age was 17 years.
She studied 8th standard at Sharada High School, Pane,
Mangaluru. In her cross - examination she denied the
suggestion that at the time of incident she completed 18
years.
20. PW.7, PW.8 and PW.12 are the police officials.
PW.11 - Dr.Surendranath Nayak has given his opinion that
the accused is capable to do sexual intercourse and has
issued certificate as per Ex.P8.
21. PW.13 - K.Madhava is the PSI who registered the
case based upon the complaint lodged by PW.1 and also
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recorded statement of witnesses. He tried to traced the
accused but not secured. That on 6.4.2009 got the
information that PW.6 was spotted near the lodge at
Kannur Pete, Kerala. He went there and secured PW.6.
After medical examination sent the victim to Prajna
Counselling Centre, Mangaluru.
22. PW.14 - Anil S.Kulkarni is the CPI who recorded
the voluntary statement of the accused as per Ex.P10 and
also submitted additional charge sheet. He drew the
mahazar at Ex.P5 and also recorded the statements of
building owner Mansoor and panchas Shaukath Ali and
Mohiddin Naufar. He sent the accused for medical
examination and received the medical certificate at Ex.P8.
On 21.4.2012 submitted additional charge sheet against
the accused and notice was marked at Ex.P12. In his
cross-examination he denied the suggestion that accused
did not gave voluntary statement before him as per
Ex.P10.
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23. PW.15 - Theresa Fernandes, the in-charge Head
Master of Saint Joseph Higher Primary school has stated in
her evidence that she issued school certificate as per
Ex.P13 and as per the school records, PW.6 was born on
4.3.1992 and also issued TC which is marked as Ex.P14.
He stated that PW.6 studied in their school from 1st to 7th
standard. In the cross-examination she denied the
suggestion that she issued certificate on force.
24. PW.16 - K.U.Belliyappa, CPI has stated in his
evidence that on 27.8.2014 he received the certificate of
birth date of PW.6 from the school at Ex.P13. On
12.8.2015 he sent the clothes of victim to FSL for
examination and on 01.09.2015 received the FSL report at
Ex.P15. In the cross-examination he has stated that he
did not enquired as to who admitted PW.6 to the school
and he has not asked the admission register.
25. PW.17 - Dr.Geethalakshmi is the Scientific
Officer who stated in her evidence that on 18.8.2015 the
police officials submitted three sealed items in
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Cr.No.55/2009. Seminal stains was not found in item 'A'
and 'C'. Spermatozoa was not detected in item 'B'.
Presence of vaginal secretions was detected in item 'A' but
not detected their groups. She issued report as per
Ex.P15. In her cross-examination she stated that without
the blood sample, she cannot say semen belongs to
whom.
26. PW.18 - K.Nanjunde Gowda is the CPI who has
stated that on 9.4.2009 he received the case file from
Madhav PSI and he tried to trace the accused but did not
found him. He received the medical certificate of PW.6 at
Ex.P2 and submitted charge sheet. In the cross-
examination he has stated that he has not collected the
document of birth date of PW.6. He collected the call
details but did not produce before the Court.
27. PW.9 - Shaukath Ali and PW.10 - Mohiddin
Naufal are the mahazar witnesses as per Exs.P4 and P5
but they turned hostile to the case of the prosecution.
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28. PW.19 - Mansoor has stated that his father
Abdulla is the owner of K.A.commercial Complex at
Kadambaru of Minja village. His father has let out the
building but the police did not gave notice about their
coming to drawn the mahazar.
29. These are all the evidence let in on the part of
the prosecution in respect of PW.6 being the victim who
was alleged to have been abducted by the accused and
wrongfully confined and had forcible sexual intercourse
upon her. The evidence of PW.6 being victim shows that
on 11.3.2009 her mother - PW.1 came to her working
place at Kala Mudranalaya and abused her that she did not
come to home and after that due to fear she called the
accused and herself went to Pumpwell, Mangaluru.
Further, on the say of police she gave evidence before the
Court against the accused and the police brought PW.6 but
she did not stated anything against the accused and she
did not go with her mother. If her mother had look after
PW.6 well, definitely she would have went with her. PW.15
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had issued the certificate at Ex.P13 by mentioning the
date of birth of PW.6 is 4.3.1992 and the certificate came
to be issued in the year 2014, but the incident took place
in the year 2009 which shows that after five years of the
incident, police collected the document that too after filing
of the charge sheet and additional charge sheet before the
trial Court. Therefore, in the absence of admission register
or evidence as to who admitted her to school, the
certificate at Ex.P13 and the evidence of PW.15 cannot be
believed as trustworthy that PW.6 was born on 4.3.1992.
This benefit goes to the accused and considered age of
PW.6 was 18 years at the time of incident. The trial Court
rightly came to the conclusion that at the time of alleged
incident age of PW.6 was 18 years and she was not a
minor.
30. Further, PW.18 - Nanjunde Gowda, the IO who
said to have collected the call details of mobile belonging
to PW.6, but did not produce the call details before the
Court. The police have not drawn the mahazar at the
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alleged place of where they brought PW.6 to station on
6.4.2009. PW.1 being the mother of PW.6 - victim has
stated after securing of her daughter she lodged the
complaint on 16.3.2009. If mahazar was drawn on the
date of bringing, PW.6 definitely would have known the
truth. PW.13 PSI did not drew the mahazar at the spot.
31. It is relevant to note here that there is no
evidence of PW.6 being victim that accused seduced or
forced her to have illicit intercourse with a person other
than the accused and hence, the ingredients under Section
366-A of IPC is not attracted. PW.2 - Dr. Radhika who
examined PW.6 on 6.4.2009 stated that there were no
injuries on PW.6. Since the hymen was ruptured she has
stated that chance of PW.6 had sexual intercourse and
issued medical certificate Ex.P2. But Ex.P2 does not show
PW.6 stating before the Doctor that accused had sexual
inter course on her. PW.2 Doctor has stated that at the
time of examination of PW.6, she collected vaginal smear,
vaginal swab and also innerwear. PW.17 -
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Dr.Geethalakshmi, Scientific Officer has stated that on
18.5.2015 she received sealed items from Buntwal police
and she examined the above articles and she found
vaginal secretion on M.O.1 but in the absence of blood
group cannot say semen belongs to whom. PW.6 in her
evidence stated that M.O.1 was not worn at the time of
sexual intercourse. The material objects were collected
from PW.6 on 6.4.2009 but sent to FSL on 18.8.2015 after
gap of six years. Therefore, there are clouds of doubt in
the theory of the prosecution in respect of forcible sexual
intercourse on her. The trial Court rightly disbelieved the
evidence of PW.6 that accused abducted her and had
forcible sexual intercourse on her by giving threat. The
trial Court after appreciation of oral and documentary
evidence on record, came to the conclusion that
prosecution has failed to prove the guilt of the accused
beyond all reasonable for the offence punishable under
Section 366-A, 376 and 506 of IPC and acquitted the
accused for the aforesaid offences. We find no justifiable
reasons to interfere with the same. Accordingly, the
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appeal filed by the State challenging the judgment of
acquittal is deserves to be dismissed.
32. The trial Court has gone through the evidence of
PW.6 who stated that accused wrongfully confined her in a
house at Kotekar earlier to that Manjeshwar. After
accused came to know her mother lodged the complaint
through his friends left her to Kannur, near the lodge.
Even PW.6 came with him voluntarily stating her mother
abused her but he without informing her mother took her
and confined her. The trial court came to the conclusion
that accused had wrongfully confined her and convicted
him for the offence under Section 342 of IPC. But it is
relevant to note here that as per the evidence of PW.6 and
as contended by counsel for the appellant-accused, the
victim and the accused had been to Kotekar in a car along
with other two persons and confined in a room where
there were males and females. In this regard the
prosecution had examined PWs.9 and 10 as mahazar
witnesses. But they did not withstood to their version and
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turned hostile. The evidence of PW.6 runs contrary to the
evidence of PW.1 being mother of PW.6 who filed
complaint relating to abduction of her daughter and
alleged that the accused had forcible sexual intercourse
upon her. If really accused had sexual intercourse on
PW.6 she would have stated before the Doctor at the time
of her examination. The evidence on the part of the
prosecution goes to show that the accused not at all had
forcible intercourse on her.
33. In the instant case on record, it is relevant to
refer the judgment of the Hon'ble Supreme Court Padam
Singh vs. State of UP (AIR 2000 SC 361) wherein it is
held that it is the duty of an appellate Court to look into
the evidence adduced in the case and arrive at an
independent conclusion as to whether the said evidence
can be relied upon or not and even if it can be relied upon,
then whether the prosecution is said to have proved its
case beyond reasonable doubt on the said evidence. The
credibility of a witness has to be adjudged by the appellate
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Court in drawing inference from proved and admitted
facts. This issue has been extensively addressed by the
Hon'ble Supreme Court in the aforesaid reliance and more
so based upon the evidence and also on facts. But the
appeal in Crl.A.No.1124/2017 is preferred by the State
challenging the judgment of acquittal for the offence under
Sections 366-A, 376 and 506 of IPC and seeking to set-
aside the impugned judgment. Crl.A.No.1125/2017 is
preferred by the State for inadequacy of sentence
imposed by the trial Court for the offence under Section
342 of IPC and seeking modification of the judgment
relating to Section 342 of IPC. However, it is the duty
cast upon the an appellate Court to look into the evidence
facilitated by the prosecution and it must prove and
establish beyond all reasonable doubt. Therefore, in this
regard it is relevant to refer Section 3 of the Indian
Evidence Act, 1872 wherein it is the domain vested with
the trial Court to appreciate the evidence in a proper
perspective and also the ingredients relating to the
offences which lugged against the accused who is facing of
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trial. But in the instant case, the evidence which is
facilitated by the prosecution to prove the guilt of the
accused but the credibility of the witnesses are required to
be adjudged by the Appellate Court by drawing inference
from proved and admitted facts and the materials which
secured by the investigating officer during the course of
investigation in respect of conducting mahazar in the
presence of panch witness and securing the medical
report/ wound certificate as per Ex.P2 from the concerned
Doctor whereby the PW.6 victim was subjected to
examination and PW.1 being the mother of victim who
filed the complaint based upon which the criminal law was
set into motion and only later which came to her
knowledge and then only criminal prosecution was
initiated. The same could be seen in the evidence of the
prosecution witnesses that too be the evidence of
PW.6/victim and so also, PW.1 being the mother of PW.6.
Therefore, the aforesaid reliance is squarely applicable to
the case on hand relating to the offence under Section 342
of IPC and it requires intervention. The ingredients of the
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said offences has not been proved by the prosecution to
secure the conviction as there is no strong, consistent and
also cogent evidence to convict the accused for the said
offence.
34. Further it is relevant to refer the judgment of
Hon'ble Supreme Court in Lalit Kumar Sharma v.
Superintendent and Remembrancer of Legal Affairs,
Government of West Bengal, (1989) Cr.L.J. 2297
wherein the Hon'ble Supreme Court has addressed the
issues relating to the powers of the Appellate Court to
review evidence in appeal against acquittal is as extensive
as its powers in appeal against convictions but Appellate
Court should be slow in interfering with the order of
acquittal. But in the instant case, the State has sought for
modification of sentence imposed by the trial Court for the
offence under Section 342 of IPC and so also, for setting-
aside the judgment of acquittal for the offences under
Sections 366-A, 376 and 506 of IPC and the appellant-
accused has sought for setting aside the judgment of
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conviction insofar as it relates to convicting him for the
offence under Section 342 of IPC. Therefore, the aforesaid
decision is squarely applicable to the present case on hand
wherein intervention is sought for.
35. It is the settled the position of law that reliance
can be based on the solitary statement of a witness if the
court comes to the conclusion that the said statement is
the true and correct version of the case of the prosecution.
This issue has been addressed by the Hon'ble Supreme
Court in the case of Raja v. State (1997) 2 Crimes 175
(Del). Insofar as reliance of the Hon'ble Supreme Court
in Lallu Manjhi v. State of Jharkhand (AIR 2003 SC
854) it is held that the law of evidence does not require
any particular number of witnesses to be examined in
proof of a given fact. However, faced with the testimony
of a single witness, the court may classify the oral
testimony into three categories, namely (i) wholly reliable,
(ii) wholly unreliable, and (iii) neither wholly reliable nor
wholly unreliable. In the first two categories there may be
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no difficulty in accepting or discarding the testimony of the
single witness. The difficulty arises in the third category of
cases. The court as to be circumspect and has to look for
corroboration in material particulars by reliable testimony,
direct or circumstantial, before acting upon testimony of a
single witness. In the instant case, PW.6 being the victim
who is alleged to have been abducted by the accused and
made wrongful confinement under threat in terms of
criminal intimidation and alleged to have had forcible
sexual intercourse. But on close scrutiny of the evidence
on the part of the prosecution it indicates there are
inconsistencies and contradictions as could be seen from
the evidence of PW1 being the mother of victim and
author of the complaint and so also, contradictions in the
evidence of the investigating officers who conducted the
investigation and laid the charge sheet. There is no
worthwhile evidence on the part of the prosecution
wherein the trial Court has rendered the impugned
judgment and it founds to be perversity and absurdity. On
all these premise, it requires intervention of the impugned
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judgment, if not, certainly the accused being the
gravamen of the accusation would suffer miscarriage of
justice.
36. Further, on close scrutiny of the legal evidence
facilitated by the prosecution and so also, exhibited
documents in respect of mahazar conducted by the IO in
the presence of panch witnesses and so also secured
medical certificate as per Ex.P2, but in totality of the
circumstances of the case and so also, the evidence
facilitated by the prosecution, a prudent man can infer
that the trial Court has misdirected and misinterpreted the
evidence adduced on the part of the prosecution.
Therefore, there is no go but to intervene with the
impugned judgment, if not, certainly there would be
miscarriage of justice to the accused being the gravamen
of the incident. In view of the aforesaid reasons and
findings, we are of the opinion that the appeals preferred
by the State challenging the impugned judgment of
acquittal insofar as acquitting the accused for the offence
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under Sections 366-A, 376 and 506 and so also,
modification of the impugned judgment in respect of
inadequate sentence imposed by the trial Court for the
offence under Section 342 of IPC are liable to be rejected
and the appeal preferred by the appellant-accused to set-
aside the impugned judgment insofar as convicting him for
the offence under Section 342 of IPC, deserves to be
allowed. Accordingly, we proceed to pass the following:
ORDER
(i) Criminal Appeal No.1124 of 2017 filed by the Appellant - State under Section 378(1) and (3) of Cr.P.C. seeking to convict the appellant - accused for the offence punishable under Sections 366-A, 376 and 506 of IPC is hereby dismissed.
(ii) Criminal Appeal No.1125 of 2017 filed by the Appellant - State under Section 377 of Cr.P.C. seeking modification of the judgment of conviction for the offence punishable under Section 342 of IPC is hereby dismissed.
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(iii) Consequently, the judgment of acquittal dated 17.09.2016 passed in SC No.41 of 2012 by the learned VI Additional District and Sessions Judge, DK, Mangaluru acquitting the appellant-accused for the offences punishable under Sections 366-A, 376 and 506 of IPC is hereby confirmed.
(iv) Criminal Appeal No.699 of 2018 filed by the Appellant - accused under Section 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence dated 17.09.2016 passed in SC No.41 of 2012 by the learned VI Additional District and Sessions Judge, DK, Mangaluru, insofar as convicting the accused for the offence punishable under Section 342 of IPC is hereby set-aside. The appellant-accused is acquitted for the offence punishable under Section 342 of IPC. He shall be set at liberty forthwith, if not required in any other case/s.
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(v) Bail bond, if any, executed by the appellant- accused in Criminal Appeal No.699 of 2018 shall stands cancelled.
(vi) The fine amount (if any) deposited by the appellant-accused in pursuance of the judgment of conviction and order of sentence rendered by the Trial Court shall be returned to the appellant-accused, on due identification.
Sd/-
JUDGE Sd/-
JUDGE DKB