Karnataka High Court
State Of Karnataka vs Santosh S/O. Neelappa Mayannavar on 2 June, 2025
1 CRL.A.NO.100337/2017
c/w CRL.A.NO.100063/2018
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 02ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100337/2017
C/W
CRIMINAL APPEAL NO.100063/2018
IN CRL.A.NO.100337/2017:
BETWEEN:
SMT. ANNAPURNA,
W/O SHIVAPPA RITTI,
AGED 41 YEARS, OCC:COOLIE,
R/O SUTAGATTI, TQ: KALGHATAGI,
DIST: DHARWAD.
...APPELLANT
Digitally signed by (BY SRI. B.S. KUKANAGOUDAR, ADVOCATE)
CHANDRASHEKAR
LAXMAN
KATTIMANI AND:
Location: HIGH
COURT OF
KARNATAKA 1. SANTOSH,
S/O NEELAPPA MAYANNAVAR,
AGE: 21 YEARS, OCC: TILES WORK,
R/O. SUTAGATTI, TQ: KALGHATAGI,
DIST: DHARWAD.
2. THE STATE OF KARNATAKA,
THROUGH KALGHATAGI POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENTS
(BY SRI. T.R. PATIL AND D.S. BETAGERI, ADVOCATE FOR R-1,
2 CRL.A.NO.100337/2017
c/w CRL.A.NO.100063/2018
SRI. ABHISHEK MALIPATIL, HCGP FOR R-2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CR.P.C. SEEKING TO CALL FOR RECORDS AND TO SET ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 26.08.2017
PASSED IN SPL.S.C.NO.12 OF 2016 BY THE II ADDL. DISTRICT
AND SESSIONS AND SPECIAL JUDGE, DHARWAD FOR THE
OFFENCES PUNISHABLE UNDER SECTION 354(A), 306 OF IPC
AND UNDER SECTION 8 OF POCSO ACT, 2012, AND CONVICT THE
RESPONDENT No.1/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 354(A), 306 OF IPC AND UNDER SECTION 8 OF
POCSO ACT 2012 BY ALLOWING THIS APPEAL.
IN CRL.A.NO.100063/2018:
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
P.I.KALAGHATAGI POLICE STATION,
KALAGHATAGI,
THROUGH THE ADDL. STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. ABHISHEK MALIPATIL, HCGP)
AND:
SANTOSH,
S/O NEELAPPA MAYANNAVAR,
AGE: 20 YEARS, OCC: TILES WORK,
R/O. SUTAGATTI, TQ: KALAGHATAGI.
...RESPONDENT
(BY SRI. T.R. PATIL, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AND
3 CRL.A.NO.100337/2017
c/w CRL.A.NO.100063/2018
AT SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
26.08.2017 PASSED BY THE II ADDL. SESSIONS JUDGE,
DHARWAD IN SPL.S.C.NO.12/2016 AND TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTION 354(A) AND 306 OF IPC AND SECTION 8 OF THE POCSO
ACT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
16.12.2024/19.03.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) These two appeals are filed against the judgment and order passed by the trial Court, acquitting accused for the offences punishable under Sections 354-A, 306 of IPC and Section 8 of POCSO Act.
2. While Crl.A.No.100337/2017 is filed by the complainant, Crl.A.No.100063/2018 is filed by the State.
3. Since these two appeals are arising out of the same judgment and order and involve common discussion, they are clubbed together and decided by a common order. 4 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018
4. For the sake of convenience, parties are referred to by their ranks before the trial Court.
5. A charge sheet came to be filed against accused alleging that on 02.01.2016 at 04.00 p.m, when deceased prosecutrix, aged 17 years went to answer natures call in the land, accused knowing that she is a minor, dragged her by gagging her mouth, laid her on the ground and attempted to rape her. Hearing her cries when her father came to the rescue of the prosecutrix, accused runaway from the spot. Unable to bear the humiliation, on the next day at 06.00 a.m, prosecutrix dozed herself with kerosene and set on fire. Though immediately she was rushed to the hospital, while undergoing treatment she died on 14.01.2016 at 12.45 a.m and thereby accused has committed the above offences.
6. Complainant is the mother of prosecutrix. She is not an eye witness to the incident. She lodged the complaint as narrated by the prosecutrix. In the complaint, she stated that hearing the cries of the prosecutrix, her cousin 5 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 Vijayalaxmi and Shobha came to the spot and on finding them accused runaway. It is stated in the complaint that fearing for the reputation of prosecutrix they did not disclose this fact to anyone. But, they brought this fact to the notice of the father of accused, who promised reprimand the accused. However, on the next day at 06.00 a.m, the complainant went to answer nature's call. By the time she returned home, she found deceased with burn injuries outside the house and her relatives Ramalinga and Sangappa had doused the fire. Immediately, deceased was rushed to KIMS Hospital Hubballi.
7. Based on the complaint, the concerned police registered the case in Cr.No.04/2016 and taken up investigation. The accused was arrested. Later he was released on bail. After completing the investigation, charge sheet is filed by the concerned police against the accused for the offences punishable and Sections 354-A and 306 of IPC and Section 8 of POCSO Act.
8. Accused pleaded not guilty and claimed trial. 6 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018
9. In order to prove the allegations against the accused, prosecution has relied upon the evidence of PWs-1 to 15, Ex.P1 to 22 and MOs-1 and 2.
10. During the course of a statement under Section 313 of Cr.P.C accused has denied the incriminating evidence led by the prosecution.
11. Accused has not led any defence evidence.
12. Vide the impugned judgment and order the trial Court acquitted the accused by holding that the prosecution has failed to prove the allegations against accused to beyond reasonable doubts.
13. Aggrieved by the same, the State as well as the complainant have filed the appeals contending that the same is contrary to law, facts and evidence placed on record, besides being arbitrary. The reasons assigned are illegal, erroneous. The appreciation of evidence by the trial Court is not in accordance with law and as such resulted in 7 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 miscarriage of justice. Based on the evidence, the trial Court ought to have held that the allegation against accused are proved and convicted him. In the dying declaration, the prosecutrix has clearly implicated the accused and the testimony of PW-12 Halappa who has recorded the dying declaration prove the same. The allegations against accused are proved through the evidence of PWs-3, 4 and 11 who are witnesses to the incident. The conclusions arrived at and findings given by the trial Court are contrary to the evidence on record and as such perverse. During the course of his statement under Section 313 of Cr.P.C, the accused has not offered any explanation. In the light of overwhelming evidence led by the prosecution, it is a case for conviction and hence the appeals.
14. In support of his argument, learned counsel for complainant has relied upon the decision in Laxman Vs. State of Maharashtra (Laxman)1 1 (2002)6 SCC 710 8 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018
15. On the other hand, learned counsel representing the accused has supported the judgment and order passed by the trial Court. He would submit that there was rivalry between the family of complainant and accused. The deceased was in love with accused and it was opposed by her family members. When she insisted upon marrying the accused, in a fit of anger, the father of prosecutrix dozed kerosene and set her on fire. In order to escape from the consequences, a false complaint is filed by setting up PWs-3, 4 and 11 as eye witnesses. However, their testimony is not trustworthy and reliable. The contradictions in their testimony is not reconcilable. There is inordinate delay in filing the complaint and the same is not explained by the prosecution. Neither the Doctor who treated the deceased nor the one who was allegedly present when the dying declaration was recorded are examined. In the light of the same, the trial Court has rightly rejected the case of the prosecution and acquitted the accused and pray to dismiss the appeals.
9 CRL.A.NO.100337/2017c/w CRL.A.NO.100063/2018
16. In support of his argument, learned counsel for accused has relied upon the decision in Ramesh and Anr. Vs. State of Karnataka (Ramesh)2
17. Heard elaborate arguments of both sides and perused the record.
18. The fact that as on the date of the incident prosecutrix was a minor is not seriously disputed by the accused. PWs-1 and 11 who are the parents of the deceased have deposed that as on the date of incident, she was aged 17 years. Their evidence reveal that, about one year back, she had completed her SSLC. PW-1 has specifically deposed that after finishing SSLC, prosecutrix was staying in her grandparents house. She had returned to her parents house about two days prior to the date of incident.
19. PW-14 Pavadeppa Myageri is the Headmaster of Government High school, Bagadageri, where she was 2 Crl.A.No.1467/2012 Dt: 18.09.2024 10 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 studying. He has deposed that as per the school records, the date of birth of the prosecutrix was 28.02.1998 and based on it, he has issued the birth certificate as per Ex.P12. Ex.P13 is the register and the relevant portion in page No.63 at serial No. 307 is marked as Ex.P13(a). The admission register is also produced as per Ex.P15 and its certified copy is marked as Ex.P16. These documents coupled with the evidence of PW-14 prove that, the date of birth of prosecutrix was 20.02.1998 and as on the date of the incident, she was aged 17 years, a minor and as such the provisions of POCSO Act are applicable.
20. It is the definite case of the prosecution that on 02.01.2016 at 04.00 p.m, when the prosecutrix was in the land answering nature's call, accused came there, gagged her mouth with his hands and dragged her towards interior portion, fell her on the ground and was attempting to rape her. Hearing the sound cousin sisters of complainant PW-3 Shobha and PW-4 Vijayalakshmi called the father of prosecutrix i.e., PW-11 Shivappa. When PW-11 Shivappa 11 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 went to the rescue of prosecutrix and caught hold of the accused, he escaped and ran away. PW-11 brought prosecutrix to the house and her mother i.e., complainant came to know about the incident. According to the prosecution PWs-3, 4 and 11 are the witnesses to the accused attempting to rape the prosecutrix.
21. It is pertinent to note that PW-10 Yallappa Mayannavar is the brother of complainant and father of PWs- 3 and 4. He had taken the land on crop sharing basis where the incident dated 02.01.2016 took place. His evidence reveal that at the time of the said incident he was not present in the village. During the cross-examination, he has deposed that on that day, he along with his wife and four children had gone to Vittalapur Jatra. When suggested that PWs-3 and 4 were also gone with him to the Jatra and they were not present at the spot, he has stated that on the day, both girls were having school and he did not want them to miss the school, and therefore he did not take them. It is pertinent to note that at the time of incident, these girls were 12 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 aged around 11 and 12 years and it is doubtful whether their parents would have left them behind while themselves going to the Jatra along with their other 3 children.
22. This doubt would arise in the light of the fact that while PW-3 deposed that on the date of incident, both she and her elder sister i.e., PW-4 Vijayalakshmi did not attend the school. On the other hand, PW-4, Vijayalakshmi has deposed that on the date of incident, both she and PW-3 Shobha attended the school from 08.00 a.m to 1.00 p.m. The contradiction in the evidence of PWs-3 and 4 is glaring and it creates doubt whether they were present at the place of incident. If at all their father did not take them to the Jatra for the reason that he did not want them to miss the school, it is doubtful whether really these girls did not attend the school as deposed by PW-3 Shobha or attended the classes and were free by 1.00 p.m, as deposed by PW-4 Vijayalakshmi. On the other hand, whether they were also with their parents attending the Jatra and were not available at the spot when the incident dated 02.01.2016 took place. 13 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018
23. It is pertinent to note that 02.01.2016 was a Saturday and in all probability, if the girls attended the morning school, by the time incident took place, they would have returned home. Therefore, the proper course available to the investigating officer was to secure attendance register and prove that on the date of incident, these two girls attended the school, but by 4.00 p.m, they were back at the village and they did not go with their parents to the Jatra.
24. So far as incident dated 02.01.2016 is concerned, PWs-3 and 4 have deposed on that day they went to the land around 4.00 p.m. PW-3 was scaring away birds and PW-4 was harvesting beans. The prosecutrix was also with them. She went to answer nature's call and suddenly accused came there and covering the mouth of prosecutrix, he started dragging her away. Hearing the commotion they rushed and found accused trying to rape the prosecutrix. PW-3 has stated that PW-11 Shivappa the father of prosecutrix was already present in the land and he was answering nature's call and hearing her cries, he rushed the spot and caught 14 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 hold of the accused, but he managed to run away. In this regard, PW-4 has deposed that when accused was dragging the prosecutrix and she was crying for help, she called PW- 11 and he came to the spot and caught hold of the accused, but he managed to run away.
25. With regard to the said incident, in his examination-in-chief PW-11 has deposed that at around 03.00 p.m, he was sleeping inside the temple and in order to relief himself, he went to the land and heard voice of a girl. When he rushed to the spot, he found his daughter on the ground and accused had fallen on her and when he intervened, accused assaulted him and ran away and he brought the prosecutrix to the house. PW-11 has specifically stated that except he and the prosecutrix no other person was present in the land when the incident took place. While recording his evidence, the trial Court has made a note that despite the prosecutor persistently questioning the witness as to what exactly accused was doing when he saw him, the witness has not given any answer.
15 CRL.A.NO.100337/2017c/w CRL.A.NO.100063/2018
26. On the aspect of PW-11 not speaking with regard to the presence of PWs-3 and 4 when the incident dated 02.01.2016 took place, the prosecution has treated him as hostile and he is cross examined. When suggested that both PWs-3 Shobha and PW-4 Vijayalakshmi were present when he rushed to the spot and it was they who called him to the spot, PW-11 has stated that since there was Jowar crop, he could not see them and they never shouted and called him to the land. He has also denied of having given statement to the investigating officer regarding PWs-3 and 4 shouting and calling him, on seeing the incident. Even during the cross examination, PW-11 has stated that when he heard prosecutrix voice, he went to the spot on his own and he was not called by anyone.
27. Thus, the evidence led by the prosecution with respect to the incident dated 02.01.2016 and regarding the accused attempting to rape the prosecutrix and it was seen by PWs-3, 4 and 11 is not convincing and reliable. Even where the testimony of PWs-3 and 4 that they saw accused 16 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 dragging the prosecutrix and shouted and hearing their voice, PW-11 came is accepted, it is doubtful whether still accused would be available at this spot to be seen and held by PW-11.
28. Even though, according to the prosecution witnesses, accused tried to rape the prosecutrix, neither the prosecutrix nor her parents have chosen to file complaint about the same. On the other hand PW-1, who is the mother of the prosecutrix has deposed that fearing that the reputation of prosecutrix would be at stake, they did not choose to file the complaint and on the other hand called the father of accused and informed him and he in turn said that he would advise the accused and went away is not very convincing. PWs-1, 3, 10 and 11 have deposed that on the next day, prosecutrix committed suicide by dozing kerosene and setting on fire as she took it to her heart about the previous day incident. However, none of the witnesses have deposed what was the state of mind of the prosecutrix after the incident.
17 CRL.A.NO.100337/2017c/w CRL.A.NO.100063/2018
29. In fact, PW-1 has deposed that when PW-11 brought the prosecutrix home, she accused PW-1 that, her brother tried to rape her. It has come in the evidence that accused and complainant are related. On the other hand, the defence has taken specific defence that deceased and accused were in love and it was opposed by her father (PW-11). On finding both accused and prosecutrix together in the land, he assaulted her and brought her to home. When the prosecutrix insisted on marrying the accused, PW-11 assaulted her throughout the night and on the next day morning, on a fit of anger, he doused kerosene and set her on fire. In order to protect him, a false complaint is filed against the accused alleging that he tried to rape the prosecutrix and unable to bear the humiliation, she choose to end her life. Of course PWs-1, 3, 4, 10 and 11, who are the close relatives of deceased, including her parents have denied the suggestion that it was PW-11 who set the prosecutrix on fire and the false complaint is filed against the accused.
18 CRL.A.NO.100337/2017c/w CRL.A.NO.100063/2018
30. In the light of the defence taken by the accused that it was PW-11 who set the deceased on fire, it was necessary for the prosecution to lead evidence to establish that after the incident dated 02.01.2016, the deceased was very much upset and was disillusioned by the fact that despite such a serious incident complaint was not filed against the accused and unable to bear the humiliation, she took the extreme step of eliminating herself. Except stating that prosecutrix took the incident dated 02.01.2016 to her heart and committed suicide is not sufficient to hold that accused was responsible for her committing suicide, especially when the prosecution has failed to prove the incident dated 02.01.2016.
31. On the other hand, the subsequent conduct of PW-11 leaving the house of complainant indicate that everything was not well as projected by the prosecution. It is pertinent to note that PW-1 Annapoorna is hailing from Sutagatti. Her husband i.e, PW-11 Shivappa is originally from 19 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 Hubballi. After he married complainant Annapoorna (PW-1), as customary she did not shift to Hubballi. On the other hand, it is PW-11 Shivappa, who shifted to Sutagatti and stayed there till the incident dated 03.01.2016 took place. He has clearly deposed that after the incident dated 03.01.2016, he shifted to Hubballi. Both PWs-1 and 11 have deposed to this effect. They have not come up with any reason for PW- 11 suddenly leaving Sutagatti and shifting to Hubballi. After losing their young daughter to such a tragedy, PWs-1 and 11 required each other's company, all the more.
32. However, the conduct of PW-11 leaving the house of his wife where he was staying since from time of his marriage and living separately supports the defence of the accused that in all probability, he may be responsible for the death of prosecutrix or at least he was opposing the prosecutrix to marry accused and unable to face the opposition, prosecutrix choose to commit suicide. In either way, the prosecution has not come up with true facts. At the 20 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 same time, the prosecution has failed to prove the allegations against the accused beyond reasonable doubt.
33. Moreover, the investigating officer has not collected any documents from the hospital regarding the MLC report given by the doctors who would have noted the cause of injuries sustained by the deceased. Even though PW-12 Halappa Nagavi has deposed regarding the dying declaration given by the prosecutrix, his evidence is not convincing. Ex.P9 the dying declaration is attested by Dr.Dayanand R for Dr.Eligar. Both of these doctors are not cited as witnesses. Even the prosecution has not requested the trial Court to summon and examine them. Their evidence would have been of great help to prove the case of the prosecution to show that prosecutrix was in a position to give statement. Column Nos.5 to 7, which deals with the identity of the person who is responsible for the assault are left blank.
34. The Tahsildar who recorded the dying declaration has directly come to column No.8, probably thinking that it is 21 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 a case of attempt to commit suicide. In the absence of support from the other evidence, it would not be proper to solely rely upon the dying declaration. As rightly held by the trial Court, the prosecutrix survived for a total period of 10 days and during this period, the investigating officer has not chosen to record her statement. She would have been the best person to speak about the incident and it would have been the best evidence available to the prosecution to prove the allegations against the accused. The investigating officer has not availed the option of recording her statement.
35. The trial Court on appreciation of the oral and documentary evidence placed on record has rightly held that the allegations against accused are not proved. The conclusions arrived at and findings given by the trial Court are consistent with the evidence placed on record. On re- appreciation of entire oral and documentary evidence placed on record, this Court finds no perversity in the conclusions arrived at by the trial Court, calling for interference by this 22 CRL.A.NO.100337/2017 c/w CRL.A.NO.100063/2018 Court. In the result, both appeals fail and accordingly the following:
ORDER
(i) Both appeals filed by the complainant and State are hereby dismissed.
(ii) The impugned Judgment and order of the trial Court dated 26.08.2017 in Spl.SC No.12/2016 on the file of II Addl.District and Sessions and Spl.Judge, Dharwad is confirmed.
(iii) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith.
Sd/-
(J.M.KHAZI) JUDGE RR