Karnataka High Court
The State Of Karnataka vs Shashidhar on 5 February, 2018
Bench: Ravi Malimath, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF FEBRUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.1569 OF 2017
BETWEEN:
THE STATE OF KARNATAKA
BY BILICHODU POLICE,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 01 ...APPELLANT
(BY SRI.P.M.NAWAZ, SPP)
AND:
1. SHASHIDHAR
S/O LATE RUDRANAIK
AGED ABOUT 23 YEARS,
R/O KONDAPUR VILLAGE,
HOLALKERE TALUK,
CHITRADURGA - 577 526
2. HARISH @ HARISHNAIK
S/O RAJANAIK,
AGED ABOUT 24 YEARS,
R/O NARASIMHARAJAPURA VILLAGE,
JAGALUR TALUK,
DAVANAGERE - 577 528 ... RESPONDENTS
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THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3)
CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED
18.03.2017 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE IN
S.C.NO.29/2016 ACQUITTING THE RESPONDENTS/ACCUSED
FOR THE OFFENCE P/U/S 366 AND 376 R/W 34 OF IPC AND
SEC. 6 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012.
*****
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, SOMASHEKAR J., DELIVERED THE FOLLOWING:-
JUDGMENT
Against the judgment of acquittal passed by the learned II Additional District and Sessions Judge & Special Judge at Davangere in S C No.29/2016 for the offences punishable under Sections 366 & 376 r/w Section 34 of Indian Penal Code and Section 6 of POCSO Act.
2. Brief facts of the case are that on 1.7.2015 in the afternoon accused No.1 kidnapped CW-6 Roja and Accused No.2 kidnapped CW-7 Sujatha from the custody of their 3 guardian, CW-1 complainant, without his knowledge and consent. They took the victims to Tumkur with an intention to marry them. Accused No.1 married CW-6 Roja and Accused No.2 married CW-7 Sujatha in Kote Anjaneya Swamy Temple situated near Panduranganagar, Chikpete Christian Street, Sira Road, Tumkur Town. Thereafter they have taken them to house of CW-14 Ramakrishna situated in Tumkur Town, stayed there as tenants. During their stay there, Accused No.1 had sexual intercourse with CW-6 and Accused No.2 had sexual intercourse with CW-7 Sujatha, who were minors and against their will. Accused said to have committed aggravated sexual assault on minors CW-6 & CW-7 against their will and consent. On filing complaint before the police, the Investigation Officer conducted investigation and filed charge sheet for the aforesaid offences.
3. The Trial Judge framed charge against the respondents. The respondents-accused did not plead guilty but claimed to be tried. The prosecution in order to prove guilt of the accused - respondents, has examined as many as 18 4 witnesses as PWs-1 to PW-18 and got marked Ex.P1 to P33. No defence evidence was adduced by the accused despite an opportunity was given to them.
4. Subsequently, statement under Section 313 of Code of Criminal Procedure came to be recorded wherein the respondents - accused denied the incriminating evidence of the prosecution witnesses.
5. The Trial Judge heard the argument advanced by the learned Public Prosecutor and defence counsel for the respondents - accused and appreciating the evidence on record i.e., PW-1 to PW-18 so also the documents got marked i.e., Ex.P1,P3 & P6 Spot Panchanamas, Ex.P2 photo, Ex.P9 complaint, Ex.P10 & P13 statements of PW-4 & PW-5 under Section 164 Cr P C, Ex.P22, P23 & P24 medical reports of A1 & A2, Ex.P25 & P26 Medical reports of PW-5, Ex.P27 & 28 medical reports of PW-4, came to the conclusion that the prosecution has failed to bring home guilt of the accused beyond all reasonable doubt and accordingly passed the judgment of acquittal, which is challenged by the State in this appeal urging 5 various grounds, seeking to set aside the acquittal judgment and to convict the respondents for the aforesaid offences.
6. We have heard the learned State Public Prosecutor for the State and perused the impugned judgment passed by the Court below. It is submitted by the learned State Public Prosecutor that the court below has failed to appreciate the evidence of PW-9 & PW-10 who are the Head Master of Government Higher Primary School and Anganawadi Teacher, who are signatories to Exs.P18 & 19 Attested school records of PW-4 & PW-5 and Ex.P20 attested birth certificate containing the signature of PW-10. The evidence of PW-9 & 10 and Exs.P18, 19 & 20 do prove that PW-4 & PW-5 were minors on the date of incident. In spite of producing cogent, corroborative and positive evidence, the court below has failed to appreciate the same in proper perspective manner and has erroneously passed the acquittal judgment holding that guilt of the accused has not been proved beyond all reasonable doubt. Therefore, it is submitted that it is a case where interference of this Court is called for.
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7. The Trial Judge has appreciated the evidence on record in proper perspective manner relating to the averments made in the complaint at Ex.P9 including the statements at Ex.P10 relating to PW-4, Ex.P13 relating to PW-5, evidence of victims, PW-4 & PW-5, evidence of the doctors PWs-11 to 14, Ex.P22 medical report of A1, Ex.P23 & P24 medical reports of A-2, Ex.P25 & 26 medical reports of PW-5, Ex.P27 & P28 medical reports of PW-4 including the fulcrum of Ex.P1, P3 & P6 spot panchanamas said to be conducted by PW-17 & 19 and has come to the correct conclusion that the prosecution has failed to bring home guilt of the accused beyond all reasonable doubt. The said conclusion reached by the trial judge does not suffer from any perversity.
8. Among the witnesses examined on behalf of the prosecution, PWs-9 & 10 are the material witnesses. PW-9 is the signatory to the attested school records at Ex.P18 & 19 belonging to PW-4 & PW-5 respectively. PW-10 is the signatory to Ex.P20 birth certificate. PWs.9 & 10 have been examined by 7 the prosecution in order to establish age of the victims PW-4 &
5. Merely because the above documents are got marked through PWs-9 & 10, it cannot be said that the entire allegation against the accused has been proved by the prosecution placing cogent, corroborative and acceptable evidence.
9. This is an appeal against an order of acquittal. The principles for such an appeal are quite different. Only because the second view is possible, does not entail the appellate court to take that second view, in the absence of any perversity. On re-appreciating the entire materials on record, we are of the view that the impugned judgment does not suffer from any perversity nor there are any good grounds to proceed with this appeal. Consequently, the appeal is hereby dismissed confirming the acquittal judgment passed by the court below.
10. Since we have considered the appeal on merits, it would not be necessary to consider the application I A 8 No.1/2017 for condonation of delay in filing the appeal. Hence I A No.1/2017 stands disposed of accordingly.
Sd/-
JUDGE Sd/-
JUDGE akd