Karnataka High Court
The State Of Karnataka vs Praveen S/O Nagappa Gudagudi on 14 June, 2021
Author: R.Devdas
Bench: R.Devdas
CRL.A.NO.100283/2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JUNE, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100283/2018
BETWEEN:
The State of Karnataka
Police of Hangal Police station
Haveri District, Haveri
Represented by the Special Public Prosecutor
High Court, Dhaward.
.... Appellant
(By Sri. V. M. Banakar, Addl. SPP)
AND:
Praveen S/o. Nagappa Gudagudi
Aged about 21 years, Occ: Coolie
R/o. Mantagi Village, Tq: Hangal, Dist: Haveri.
... Respondent
(By Mahesh Wodeyar, Advocate)
This Criminal Appeal is filed under Section 378(1) and (3) of
Cr.P.C. seeking to set aside the judgment and order of acquittal
dated 06.01.2018 passed by the Principal District and Sessions
Judge and Special Judge, Haveri, in Special S.C.No.44/2016 and
convict the respondent/accused for the offences p/u/s. 363, 366,
376, 344 of IPC and u/s. 4, 6 and 12 of the POCSO Act, 2012.
CRL.A.NO.100283/2018
2
This appeal having been heard and reserved for judgment on
31.05.2021, coming on for pronouncement of judgment this day,
J.M. Khazi J., delivered the following:
JUDGMENT
The State Government has filed this appeal under Section 378(1) and (3) of the Code of Criminal Procedure, challenging the judgment and order of acquittal dated 06.01.2018 in Special S.C.No.44/2016, on the file of the Principal District and Sessions Judge and Special Judge at Haveri, by which the accused came to be acquitted for the offences punishable under Sections 363, 366, 376, 344 of the Indian Penal Code, 1860 ('the IPC', for short) and Sections 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 ('The POCSO Act', for short).
2. For the sake of convenience, the parties are referred to their rank before the trial Court.
3. It is alleged that the accused acquainted himself with the prosecutrix, who was aged 17 years 04 months at the relevant point of time and he used to speak to her over the cell phone of her father and they fell in love with each other and when the father of the prosecutrix came to know about it and advised the CRL.A.NO.100283/2018 3 prosecutrix, the accused planned to elope with her and on 03.06.2016 at 5.30 pm, he enticed away the prosecutrix on his motorcycle and took her to Chikkabasur village of Byadgi Taluk and while staying in the house of PW6 - Kamalavva, accused committed rape on the prosecutrix and after staying for 5-6 days in the house of said Kamalavva, accused took the prosecutrix to Ambadi village of Bevandi Taluk, Maharashtra and wrongfully confined the prosecutrix in the house of CW18 - Shyama Jadav and thereby he committed the offences punishable under Sections 363, 366, 376, 344 of IPC and Sections 4, 6 and 12 of POCSO Act.
4. Since the accused pleaded not guilty, a detailed trial was held, wherein PWs. 1 to 21 are examined and Exs.P1 to P27 and M.Os.1 to 15 are marked on behalf of the prosecution.
5. During his statement under Section 313 Cr.P.C., accused denied the incriminating material against him. He has not chosen to lead any evidence on his behalf.
6. After hearing arguments of both sides, by the impugned judgment and order, the trial Court was pleased to acquit the accused of all the charges by holding that the CRL.A.NO.100283/2018 4 prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
7. We have heard the learned Addl. State Public Prosecutor for the State and learned counsel for the accused and perused the record.
8. During the course of his argument, learned Addl. State Public Prosecutor submitted that the learned trial Judge has not appreciated Ex.P22, the school record regarding the age of the victim in the light of the evidence of PW14. He further submitted that the trial Court has not appreciated the evidence on record as a whole and acquitted the accused on the basis of minor contradictions. Based on minor contradictions, the admissible evidence cannot be brushed aside. He further submitted that, since during the pendency of the trial, the prosecutrix died by committing suicide, her statement under Section 164 Cr.P.C. is admissible and the evidence of PW15, the Magistrate, who recorded her statement under Section 164 Cr.P.C., prove the contents of the same and based on the same, it is a fit case to convict the accused.
CRL.A.NO.100283/20185
9. On the other hand, learned counsel representing the accused submitted that, after appreciating the oral as well as documentary evidence placed on record in a proper perspective, the trial Court has rightly acquitted the accused and it is not a fit case to interfere with the conclusion arrived at by the trial Court.
10. It is the definite case of the prosecution that, as on the date of incident, the prosecutrix was aged 17 years 4 months. To established this fact, the prosecution has relied upon the evidence of PW14 - Abdul Aziz Mozar, who is a teacher working in the Government Urdu School, Hangal and he has deposed regarding issuance of extract of birth certificate - cum - caste certificate, based on the records maintained in the school and it is marked as Ex.P22. As per this document, the date of birth of the prosecutrix is 01.02.1999. Based on this document, it could be safely held that, as on the date of incident, the prosecutrix was aged 17 years 04 months. It is pertinent to note that the defence has not disputed the evidence of this witness. Thereby the prosecution has established the fact that, as on the date of incident, the prosecutrix was a minor.
CRL.A.NO.100283/20186
11. It is the definite case of the prosecution that, on 03.06.2016, when the complainant and his family members were engaged in the reception held in the house of one Mehaboob Ali, the prosecutrix was alone in the house and at that time, the accused took her on his motorbike. PW8 - Imamsha Mahaboobsab Yallur and PW9 - Imamsab Rajesab Doddavad, have seen the accused taking away the prosecutrix on his motorbike. PW8 has supported the prosecution case and deposed that he saw the accused taking away the prosecutrix on his motorbike and he informed this fact to her father. However, PW9 - Imamsab Rajesab Doddavad has not supported the prosecution and stated that, he came to know about the accused taking away the prosecutrix. In fact the father of the prosecutrix came to know about the said incident through PW8 - Imamsha Mahaboobsab Yalluru. After searching for the prosecutrix with the help of his family members and friends, on the next day he has given the complaint.
12. According to the prosecution, the accused took the prosecutrix to the house of CW13 - Kamalavva at Chikkabasur and stayed in their house for five days. The said Kamalavva Valmiki is examined as PW6 and her son Fakkiresh Valmiki is examined as CRL.A.NO.100283/2018 7 PW7. Even though both of them have stated that they know the accused, they have not supported the prosecution case and denied that, for a period of 5 days accused kept the prosecutrix in their house. Even though they are treated as hostile and cross- examined by the prosecution, nothing worthy is elicited which would help to improve the case of the prosecution. It is the definite case of the prosecution that, from Chikkabasur, the accused took the prosecutrix to Ambadi village of Bevandi Taluk, Maharashtra and they stayed in the room of CW19 - Kumar, who was a tenant under CW18 - Shyama Jadhav, and from the said place the police secured the accused as well as the prosecutrix and brought them back. However, CW18 and CW19 are not examined by the prosecution.
13. Initially the statement of prosecutrix is recorded by Oman, ASI on 21.06.2016. After the said statement disclosed the fact that she was a minor and the accused had sexual intercourse with her, the I.O. has got her statement recorded under Section 164 Cr.P.C. by the Magistrate. Since during the pendency of the trial, the prosecutrix committed suicide, the prosecution has chosen to examine the Magistrate, who has recorded her statement, as PW15. During the course of her evidence, the CRL.A.NO.100283/2018 8 learned Magistrate has deposed that, on 23.06.2016, she has recorded the statement of the prosecutrix as per Ex.P23. She has identified the signatures of the proseuctrix at Ex.P23(b) to (f). During her cross-examination, PW15 has admitted that, during the course of her statement, the prosecutrix has never alleged that the accused raped her.
14. Now coming to the statement of the prosecutrix recorded by the Magistrate at Ex.P23, it reveal that, prior to the date of incident, i.e., since about three months, the accused used to come near the house of the prosecutrix and used to speak to her and she also used to have conversion with him through mobile phone and during this period, they fell in love with each other and when the father of the prosecutrix warned her not to have friendship with the accused, they decided to run way and accordingly, on the date of incident, the accused took the prosecutrix on his motorbike and first they went to Chikkabasur and after staying there for five days, they again went to Ambadi of Bevandi taluka, Maharashtra state and stayed in a rented room for ten days before they were apprehended by the police and brought back.
CRL.A.NO.100283/20189
15. As rightly admitted by PW15, during the course of her statement under Section 164 Cr.P.C., the prosecutrix has nowhere stated that, during her stay with the accused person, he committed rape or had sexual intercourse against her wish. She has only stated that accused wanted to touch her and feeling that if she do not permit him to touch her, he may leave her, she permitted him to touch her.
16. PW10 - Dr. Nagaraj Kuri has examined the accused and given the report that the accused is capable of performing sexual intercourse and his report is marked as Ex.P18. The further opinion as per Ex.P19 is that, there was no proof of he having sexual intercourse in the last 24 hours of his examination.
17. At this stage, it is relevant to examine the evidence of PW16 - Dr. Nirmala Hanji, who has examined the prosecutrix. Ex.P24 is the examination of the prosecutrix. After receipt of the RFSL report, Davangere, she has given report at Ex.P25 stating that the report is negative for the presence of spermatozoa and seminal stains.
18. Admittedly, the oral and documentary evidence placed on record makes it evident that, on the date of incident, the CRL.A.NO.100283/2018 10 accused took the prosecutrix on a two wheeler. Consequently, the case of the prosecution that she was forcibly taken away by the accused is negatived by the fact that, while driving the two wheeler, it is not possible for him to forcibly hold the prosecutrix. On the other hand, the statement of the prosecutrix under Section 164 Cr.P.C. makes it evident that, about three months prior to the date of incident, they started conversation with each other and ultimately fell in love and the prosecutrix voluntarily accompanied him. The conduct of the prosecutrix is contrary to the case put forth by the prosecution. Moreover, the medical evidence regarding the prosecutrix being subjected to forcible sexual intercourse is negative. In fact her statement under Section 164 Cr.P.C. makes it amply clear that, no sexual intercourse took place between the accused and prosecutrix.
19. Taking into consideration the oral as well as the documentary evidence placed on record, the trial Court has rightly come to the conclusion that the prosecution has failed to bring home the guilt of the accused. We find that there is no perversity in the conclusion arrived at by the trial Court and it has appreciated the oral as well as the documentary evidence in a proper perspective, while coming to such conclusion. CRL.A.NO.100283/2018 11
20. In the result, the appeal filed by the State is liable to be dismissed. Hence we proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE gab